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https://www.courtlistener.com/api/rest/v3/opinions/1563607/ | 16 So.3d 781 (2009)
Sharee SELF, as successor trustee of the revocable trust of Georgia B. Slaughter
v.
Bruce SLAUGHTER, individually and as personal representative of the estate of Georgia B. Slaughter, deceased, and Barbara Slaughter Jones.
1061041.
Supreme Court of Alabama.
December 19, 2008.
Rehearing Denied February 13, 2009.
*782 I. David Cherniak and Rick A. La Trace of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.
Joseph D. Steadman of Dodson & Steadman, P.C., Mobile, for appellees.
BOLIN, Justice.
Sharee Self, as the successor trustee of the revocable trust of Georgia B. Slaughter, appeals from the trial court's summary judgment in favor of Bruce Slaughter and Barbara Slaughter Jones, which required Self, in her capacity as trustee, to transfer to Georgia B. Slaughter's estate all assets held by the revocable trust.
Facts and Procedural History
Wright Slaughter and Georgia B. Slaughter (collectively referred to as the "Slaughters") were married for 32 years. There were no children born of their marriage but each had children born of prior marriages. Wright's four children included Bruce Slaughter, Rebecca Slaughter Norwood, Barbara Slaughter Jones, and Wright Slaughter III ("Buddy"). Georgia's two children included Mike Self and Don Self.
In 1998, the Slaughters had assets totaling approximately $1.2 million. The assets were apportioned as follows: Wright had assets totaling $664,464, Georgia had assets totaling $238,194, and they had joint assets totaling $347,229. Additionally, Georgia owned a policy of life insurance that insured Wright's life for $415,986 and that named Georgia as the beneficiary.
In 1998, the Slaughters sought estate-planning advice from attorney Harwell E. Coale, Jr. Coale recommended as part of the Slaughters' estate plan the creation of two separate and equal estates in order to minimize estate taxes by the use of a credit-bypass trust. To this end various assets were transferred between Wright and Georgia so that each individual estate was approximately equal in value to the other. On June 1, 1998, Wright and Georgia executed identical wills that provided for a family-support trust upon the death of the first to die, with the surviving *783 spouse being the lifetime beneficiary of the trust. Upon the death of the surviving spouse, the remaining assets of the family-support trust would be distributed to the Slaughters' children as follows: 22% each to Wright's children Bruce Slaughter, Rebecca Slaughter Norwood, and Barbara Slaughter Jones, and 17% each to Georgia's children Don Self and Mike Self.[1] The wills provided that each spouse would be the other's personal representative and that successor co-personal representatives would be Mike Self and Bruce Slaughter.
On June 1, 1998, Wright also executed an irrevocable trust into which the life insurance policy with death benefits totaling $415,986 was transferred. Georgia was made the life beneficiary of the trust with the remainder being distributed to the Slaughters' children in the same proportions as the remainder of the family-support trust assets was to be distributed under the wills.
At the time the Slaughters executed their wills, Georgia also executed the following agreement:
"I swear before God, the Court, and my husband that I will NOT change my Last Will and Testament executed on June 1, 1998, after my husband, Wright B. Slaughter, becomes physically or mentally ill or dies; and if I do change my said Will for any reason whatsoever, or if I marry again and change my said Will, that will be ample reason to break or disregard any future Will that I make and Harwell Coale will represent this Will in Court."
Wright executed a substantially identical agreement. Coale testified that the Slaughters presented these agreements to him in handwritten form and that he had the agreements typed and notarized. He stated that the Slaughters wanted to execute the agreements to ensure that the surviving spouse could not change his or her will after the other died.
In January 2002, the Slaughters executed identical codicils to their 1998 wills. The Slaughters reduced Rebecca Slaughter Norwood's share from 22% to 17% and increased Bruce Slaughter's and Barbara Slaughter Jones's shares to 24.5%. Georgia's two children, Mike Self and Don Self, did not receive an increased share.
In June 2002, the Slaughters again executed identical codicils to the 1998 wills. The purpose of the codicils was to assure that Georgia would receive monthly income from the family-support trust and to completely remove from the wills Wright's daughter, Rebecca Slaughter Norwood. Pursuant to the codicils executed in June 2002, Rebecca's 17% share was reallocated to Bruce Slaughter and Barbara Slaughter Jones so that their shares under the 1998 wills increased to 33% each. Georgia's two children, Mike and Don, did not receive an increased share. Subsequent to the execution of the 1998 wills and the subsequent codicils, Wright began day-trading on the stock market and lost approximately $203,000 between 2000 to 2005.
Wright died in November 2005. Wright's will was admitted to probate, and his estate passed consistent with the terms of the will to fund the family-support trust for Georgia. Shortly after Wright's death, Georgia discussed with Coale the possibility of changing her will because she felt that the way the assets were to be distributed under the will was unfair to her two children and to Wright's son Buddy. Coale advised Georgia that it would be inappropriate for him to assist her in changing her will because of the agreement that she and Wright had executed in which they *784 each agreed not to change or revoke their 1998 wills subsequent to the other's death. Coale referred Georgia to attorney Greg Watts.
In November 2005, Georgia, Mike Self, and Mike's wife Sharee Self met with Watts to discuss Georgia's will. Georgia informed Watts that the disposition of her estate under her will was not fair to her children and Buddy and that she wanted to change it. Watts recommended to Georgia, Mike, and Sharee that Georgia create a revocable trust that would own all of her assets and would provide for disposition of those assets to her children and Buddy upon her death. Georgia executed the Georgia B. Slaughter Revocable Trust on March 3, 2006. Pursuant to the terms of the revocable trust, Georgia's children Mike and Don were to receive her residence, household effects, furniture, furnishings, silverware, chinaware, art, jewelry, automobiles, and other personal property in equal shares. The balance of the trust was to be distributed to Don, Mike, and Buddy,[2] each receiving 33 1/3%. All Georgia's assets were transferred into the trust during March and April 2006. The effect of establishing the revocable trust and transferring Georgia's assets into it was that there would be no assets to be distributed to the two of Wright's children who were beneficiaries of Georgia's 1998 will Bruce and Barbara. Georgia died on April 13, 2006, shortly after executing the revocable trust. Her will was admitted to probate in July 2006.
On August 11, 2006, Bruce Slaughter, individually and as the personal representative of Georgia's estate, and Barbara Slaughter Jones, individually (collectively referred to hereinafter as "the personal representative"),[3] sued Sharee Self ("the trustee") as the successor trustee[4] of the Georgia B. Slaughter Revocable Trust, seeking a judgment declaring that the transfer of assets into the trust was a nullity and that the assets purportedly transferred into the trust are the property of Georgia's estate. The complaint also sought an attorney fee.
On October 23, 2006, the trustee answered the complaint and asserted a counterclaim, seeking a judgment declaring 1) that the revocable trust is valid and enforceable because, she argued, the execution of the codicils in 2002 served as a revocation of any agreement that may have existed between Wright and Georgia not to change their wills and 2) that the dissipation by Wright of the assets of his estate constitutes an anticipatory breach of the agreement or a failure of consideration for the agreement not to change the wills.
On January 12, 2007, the personal representative moved the trial court for a summary judgment. On March 1, 2007, the trustee amended her answer to add failure of consideration as an affirmative defense. The trustee also on that same day filed her motion in opposition to the personal representative's motion for a summary judgment.
Following a hearing, the trial court, on March 30, 2007, entered a summary judgment in favor of the personal representative, finding that the transfer of Georgia's assets from her estate to the revocable *785 trust breached the agreement executed by her and Wright that the latter of them to die would not change his or her will after the other's death. The trial court ordered the trustee to transfer to Georgia's estate all assets held in the revocable trust; ordered that all attorney fees and expenses be paid out of Mike Self's and Don Self's shares of Georgia's estate; and denied the trustee's counterclaim.
Standard of Review
This Court has stated the applicable standard of review as follows:
"`Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala. 1998).
"`An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992)."'
Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)).
Discussion
Contracts not to revoke a will or devise are enforceable under Alabama law. See § 43-8-250, Ala.Code 1975. In Humphries v. Whiteley, 565 So.2d 96, 97 (Ala. 1990), a husband and wife made reciprocal wills that contained the following provisions:
"`THIRD ITEM: At my death I hereby give, devise and bequeath all the rest and residue of my estate, both real and personal, wheresoever situate, unto my spouse in absolute fee simple.
"`. . . .
"`FIFTH ITEM: My spouse and I are executing our wills at or about the same time and such wills are intended to be and should be construed [as] contractual and reciprocal wills. Neither wills [sic] shall be subject to revocation by it's [sic] maker without the consent of the other party.'"
The husband and wife each had children from previous marriages. The wife's will also contained the following provision:
"`[I]n the event my said spouse shall predecease me, then in such event I give, devise and bequeath all my estate, both real and personal, wheresoever situate, of which I may die seized or possessed, or to which I may be or become entitled to have any interest or over which I may have any power of appointment, unto my children, Gwinnette Meads Bates and Travis Humphries, and my husband's children, Morris W. Whiteley, Bobby Whiteley, David Whiteley and Lanny Whiteley, in equal shares, share and share alike, in absolute fee simple, per stirpes and not per capita.'"
*786 Humphries, 565 So.2d at 97. The husband's will contained a similar provision to leave all of his property to all of their children equally in the event that the wife died first.
The husband predeceased the wife, and, under the terms of the husband's will, she took title to all of their property. Subsequently, the wife began making gifts to her children only. By the time the wife died, the estate had been significantly reduced. The wife's children filed a declaratory-judgment action to determine how the wife's estate was to be handled. The husband's children filed a counterclaim, seeking to set aside the gifts the wife had made to her children. The trial court entered a judgment in favor of the husband's children and set aside the gifts. Id.
In affirming the trial court's decision, this Court quoted the following from the trial court's findings of fact and conclusions of law:
"`"`The weight of authority is that a contract to devise does not prevent the making of gifts during the lifetime of the promisor; but such gifts must be reasonable, absolute, bona fide, not testamentary in effect, and not made for the purpose of defeating the contract to devise, nor having such effect.' Skinner v. Rasche, 165 Ky. 108, [112,] 176 S.W. 942, 944 [(1915)]."'"
Humphries, 565 So.2d at 100 (quoting in turn Wagar v. Marshburn, 241 Ala. 73, 78-79, 1 So.2d 303, 307 (1941)).
In this case, it is clear from the record that the creation of the revocable trust and the transfer of Georgia's assets into the trust were for the clear purpose of defeating the contract Wright and Georgia had entered into whereby each agreed not to change his or her 1998 will upon the other's death. Georgia informed Watts in November 2005 that the disposition of her estate under her will was not fair to her children and Buddy and that she wanted to change it. Watts testified in his deposition as follows:
"Q. [By Slaughter and Jones's counsel:] All right. Looking back now at the November 28 memo, in the final paragraph on the first page you have the line: `Georgia Slaughter now believes that the disposition under her will does not treat her children fairly and desires to change her will.' Did she explain to you her thought process as to why she felt it was not fair to her children?
"A. That if the first important thing was that when Rebecca Norwood and Buddy were not provided for, the share for her children should have been higher. She was also concerned at that time that her house would be included in this estate plan, and we had a specific discussion about her jewelry, which she regarded to be hers.
"Q. The next sentence in that same paragraph you have the line: `Unfortunately, Harwell Coale also prepared a contract signed by each of Georgia and Wright Slaughter by which each of them agreed not to change or revoke their 1998 wills.'
"A. Yes.
"Q. Why was it unfortunate?
"A. Because it was a problem to comply with what she wanted to do.
"Q. It stood in the way, so to speak
"A. Yes.
"Q. of her desire to change her will?
"A. Yes.
". . . .
"Q. ... [C]an you tell me, Greg, what the subject matter of the paragraph, redacted paragraph, is?
*787 "A. Different means of accomplishing what she wanted to do without violating that contract.
"Q. That's fair enough. The next line that we have in the memo that's not redacted is: `After an extended discussion, we determined that the cleanest approach would be for me to prepare an inter vivos revocable trust that would own all of [Georgia's] assets and that would provide for disposition of her assets at her death.'
". . . .
"Q. Why was using the inter vivos trust the cleanest approach?
"A. It addressed her concerns across the board as opposed to other alternatives that would involve other alternatives, like payable-on-death designations or life estates in houses. To provide for what she wanted to do was to provide for her property to go to Mike, Don, and set up a trust for [Buddy]. ..."
Watts also testified that he informed Georgia, Sharee, and Mike that agreements not to revoke or change a will were valid and enforceable agreements and that a challenge to the creation of the revocable trust and the transfer of Georgia's assets into the trust was likely.
The trustee testified in her deposition as follows:
"Q. If the Revocable Trust is upheld, there won't be any assets to pass under [Georgia's] 1998 will, right?
"A. That's what I understand.
"Q. And that was the intent, wasn't it, in drafting a Revocable Trust, to have it, in effect, replace [Georgia's] will?
"A. Yes, I would think so."
Here, Georgia and Wright executed a valid and enforceable agreement by which the surviving spouse would not change or revoke his or her will following the other's death. That agreement cannot be circumvented by the creation of the revocable trust and the transfer of Georgia's assets into the trust when it is clear that the sole purpose for creating the revocable trust was to defeat the agreement not to change or revoke the 1998 wills executed by Wright and Georgia.
The trustee argues, however, that the depletion by Wright of his separate estate by day-trading on the stock market constitutes a failure of consideration that renders unenforceable the agreement not to change the wills. We disagree. "Consideration must be present when the contract is made." Fant v. Champion Aviation, Inc., 689 So.2d 32, 37 (Ala.1997). "The requirement of consideration means that a gratuitous promise is not enforceable." Id. The failure of consideration is "`the neglect, refusal and failure of one of the contracting parties to do, perform, or furnish, after making and entering into the contract, the consideration in substance and in fact agreed on.'" Lemaster v. Dutton, 694 So.2d 1360, 1366 (Ala.Civ.App.1996) (quoting 17 C.J.S. Contracts § 129 (1963)). Additionally, a failure of consideration is "`predicated on the happening of events which materially change the rights of the parties, which events were not within their contemplation at the time of the execution of the contract.'" Lemaster, 694 So.2d at 1366 (quoting Contracts § 129).
Wright supplied consideration for Georgia's promise not to change her will when he transferred to Georgia a significant amount of assets titled solely in his name in order to create two separate and equal estates. Before the transfer of assets to Georgia, Wright had titled solely in his name $664,464 of the couple's approximately $1.2 million in total assets (including jointly held assets and Georgia's solely owned assets of $238,194). Thus, a transfer of assets by Wright to Georgia in order *788 to create two separate and equal estates resulted in a significant reduction in the value of Wright's individual estate. Additionally, Wright supplied consideration to Georgia in exchange for her promise not to change or revoke her will when upon his death the balance of his estate passed into the family-support trust for Georgia's benefit.
The trustee contends that the $203,000 diminution in Wright's estate due to losses from day-trading materially altered the amount each child would receive under the wills and that that diminution could not have been contemplated by Georgia at the time she executed her will, the agreement not to change the will, and the codicils. On the contrary, the diminution of the parties' assets was reasonably expected due to several considerations. A diminution of assets would be reasonably contemplated by Wright and Georgia because the couple had been retired for approximately seven years after the estate plan was put in place. Further, because the estate plan called for the creation of the family-support trust upon the death of the first spouse, it was easily within Wright's and Georgia's contemplation that the parties' assets would be reduced because they would have been used for the support of the surviving spouse under the terms of the trust until the death of the surviving spouse. However, this aspect of diminution of the assets is ignored by the trustee in arguing failure of consideration. Rather, the trustee focuses solely on the investment losses suffered by Wright. However, it was certainly within contemplation that Wright, a retiree of significant wealth, would seek investment opportunities on the stock market and that both gains and losses could result from those investments. The assets could have easily increased had Wright been more successful at trading on the stock market. Accordingly, we conclude that there was no failure of the consideration given by Wright in exchange for Georgia's executing the agreement not to change or revoke her will.
The trustee next argues that Georgia agreed only not to change her will and that the inter vivos transfer of her assets into the revocable trust does not constitute a breach of the agreement not to change her will. Here, the parties did indeed use the word change in reaching the agreement at issue, and by creating the revocable trust and transferring the balance of her estate into the revocable trust Georgia did not technically work a change to her will. However, transferring the balance of her estate into the revocable trust had the effect of revoking her will, because upon her death there was nothing left in her estate to be distributed in accordance with the terms of her will. As discussed above, contracts not to revoke a will or devise are enforceable under Alabama law and inter vivos transfers whether to individuals or trusts cannot be used to circumvent such contracts. Indeed, "`such gifts must be reasonable, absolute, bona fide, not testamentary in effect, and not made for the purpose of defeating the contract to devise, nor having such effect.' Skinner v. Rasche, 165 Ky. 108, [112,] 176 S.W. 942, 944 [(1915)]." Humphries, 565 So.2d at 100 (emphasis added). There is a fundamental principle of law that "one cannot do indirectly what one cannot do directly." Blue Cross & Blue Shield of Alabama, Inc. v. Butler, 630 So.2d 413, 416 (Ala.1993). See also Baldwin County v. Jenkins, 494 So.2d 584, 589 (Ala.1986); Sanders v. Cabaniss, 43 Ala. 173 (1869). Accordingly, we conclude that the transfer of the assets of Georgia's estate into the revocable trust, which was created for the purpose of circumventing the terms of her will, constitutes a breach of the agreement not to change or revoke her will.
*789 The trustee next argues that the trial court erred in ordering that all attorney fees and expenses be paid out of Mike Self's and Don Self's shares of Georgia's estate. The personal representative argued in its motion for a summary judgment that the transfer of assets from Georgia's estate to the revocable trust should be set aside and that all attorney fees should be awarded out of Don Self's and Mike Self's shares of Georgia's estate. The trustee argued in response only that genuine issues of material facts existed relating to the enforcement of the agreement not to change the wills and offered nothing in response to the personal representative's argument in support of attorney fees and expenses. Additionally, following the entry of the summary judgment by the trial court, the trustee offered no opposition by way of a postjudgment motion to the trial court's award of attorney fees and expenses. This Court has stated:
"`As a general rule, an appellate court will not reverse a summary judgment on a ground not presented in the trial court.
"`"[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment."
"`Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)). Put another way, on an appeal from a summary judgment, this Court cannot hold the trial court in error on the basis of arguments made for the first time on appeal. See Barnett v. Funding Plus of America, Inc., 740 So.2d 1069 (Ala.1999); West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.2d 1290 (Ala. 1993).'"
Cain v. Howorth, 877 So.2d 566, 578 (Ala. 2003) (quoting Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 311-12 (Ala.2001)). Accordingly, because the trustee failed to submit to the trial court her arguments in opposition to the award of attorney fees and expenses, we will not address those arguments, which are presented for the first time on appeal.
AFFIRMED.
COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.
NOTES
[1] No provision was made in these two wills for Buddy Slaughter because Buddy was disabled, on government assistance, and incapable of handling assets.
[2] Buddy's share was not to be distributed to him but was to be held in trust by the trustee of the revocable trust for his benefit during his lifetime.
[3] Mike Self is a co-personal representative of Georgia's estate and agreed that he would not participate in, but would not oppose the filing of, the declaratory-judgment action by the personal representative.
[4] Georgia was the trustee of her revocable trust until her death; Sharee was then named as the successor trustee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3036443/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2153
___________
Yawo Elesesi Amenuvor, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
John Ashcroft, Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
___________
Submitted: December 3, 2004
Filed: December 10, 2004
___________
Before MURPHY, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Yawo Elesesi Amenuvor, a citizen of Togo, petitions for review of an order of
the Board of Immigration Appeals (BIA), which affirmed without opinion an
Immigration Judge’s (IJ’s) denial of asylum and related relief.1 Amenuvor challenges
the IJ’s adverse credibility determination and argues that his case was not appropriate
for an affirmance without opinion.
1
The IJ’s decision, therefore, constitutes the final agency determination for
purposes of judicial review. See Dominguez v. Ashcroft, 336 F.3d 678, 679 n.1 (8th
Cir. 2003); 8 C.F.R. § 1003.1(e)(4) (2004).
Initially, we note that Amenuvor’s argument regarding the BIA’s decision to
affirm his case without opinion is unreviewable. See Ngure v. Ashcroft, 367 F.3d
975, 981-88 (8th Cir. 2004) (finding that BIA’s decision whether to employ
affirmance-without-opinion procedure in particular case is committed to agency
discretion and not subject to judicial review).
After careful review of the record, we conclude that the IJ’s decision on
Amenuvor’s asylum application is supported by substantial evidence on the record
as a whole. See Menendez-Donis v. Ashcroft, 360 F.3d 915, 917-19 (8th Cir. 2004)
(standard of review). Specifically, the IJ discredited Amenuvor’s testimony about
past persecution he suffered, and we defer to that credibility finding because it was
supported by specific, cogent reasons for disbelief. See Nyama v. Ashcroft, 357 F.3d
812, 817 (8th Cir. 2004) (per curiam) (deference standard). In addition, because
Amenuvor failed to meet the burden of proof on his asylum claim, he failed to meet
the higher burden for withholding of removal. See Kratchmarov v. Heston, 172 F.3d
551, 555 (8th Cir. 1999).
Accordingly, we deny the petition. Amenuvor moved for a stay of deportation
before his voluntary-departure period expired, and we therefore deem this court’s
grant of his unopposed motion to include a stay of his voluntary-departure period as
well. See Rife v. Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004).
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1564942/ | 55 F.2d 396 (1931)
SNYDER
v.
ROUTZAHN, Collector of Internal Revenue.
No. 16536.
District Court, N. D. Ohio, E. D.
June 23, 1931.
Lee J. Ferbstein, Edgar H. Williams, and Merryl F. Sicherman, all of Akron, Ohio, for plaintiff.
Wilfred J. Mahon, U. S. Atty., of Cleveland, Ohio, for defendant.
JONES, District Judge.
By written stipulation, trial by jury was waived, and the case tried and submitted to the court upon the oral testimony and stipulated facts. Upon the evidence, with which the parties are familiar, my conclusion is that the plaintiff, who was the president of the bankrupt company, did not acquire the title to the asserted claim for refund of money paid in compromise of tax liability, and is not entitled to maintain this action.
The purpose of the applicable provision of the Bankruptcy Act relating to the filing of schedules (section 7 [11 USCA § 25]) is to fully advise the creditors and the court as to all of the property of the bankrupt of whatever kind and wherever situated. The alleged claim for refund was a chose in action with a specific character, which distinguished it from the other scheduled assets of the bankrupt. Form 1, Schedule B. (3) of the approved form of bankruptcy schedules (11 USCA § 53), filed under oath by the plaintiff as president, in pursuance to a resolution of the bankrupt company's board of directors, is captioned "Choses in Action," and item D therein calls for the listing of "unliquidated claims of every nature with their estimated value." Such claim was not scheduled, inventoried, or appraised, as required by the Bankruptcy Act and General Orders, and there is no evidence of probative value to justify a finding or conclusion that the trustee sold such claim in the bankruptcy proceedings.
While, generally speaking, irregularities, such as failure to appraise, may not be fatal, nor irregularities in the bankruptcy proceedings be open to collateral attack, yet the failure to schedule and the failure to include the claim in the proceedings to sell leave the plaintiff without any title to the claim. The assertion that such a claim was not scheduled and not specified in the proceedings to sell, because it was then thought to be of no value, is not persuasive in the light of the dexterity and dispatch with which presentation of the claim thereafter was made.
This is not a case where barred taxes were collected by distraint, or otherwise, or paid under protest. The supposed tax liability of the bankrupt company was compromised by the government as the result of a voluntary offer. In May, 1927, the rubber company paid $5,500 on account of taxes due for the year 1918, and in November of the same year the offer in compromise, shortly thereafter accepted, was made. The question of whether a compromise of tax liability is void or may be avoided, where made after the running of the statute of limitations, cannot turn upon the sections of the Revenue Acts relied upon by the plaintiff. They relate, for the most part, to limitation upon the collection of taxes, and we *397 are dealing here with a compromise or a voluntary liquidation of tax liability.
With reference to section 1106 (a) of the Revenue Act of 1926 (26 USCA § 1249 note), it will be observed that the United States Supreme Court has declared that section repealed, as of its effective date, by the Revenue Act of 1928 (section 612 [45 Stat. 875]). United States v. Barth, 279 U.S. 370, 375, 376, 49 S. Ct. 366, 73 L. Ed. 743; Mascot Oil Company v. United States, 282 U.S. 434, 436, 437, 51 S. Ct. 196, 75 L. Ed. 444.
There is no contention here that the additional taxes assessed by the Commissioner were not legally due; the sole contention being that the collection of the taxes was barred by the statute. The additional taxes, which were partly paid and the balance compromised, were assessed by the Commissioner in February, 1924. In March, 1924, the collector of Internal Revenue filed notices of tax lien in the District and state courts. It is assumed that the lien of the United States would become unenforceable if the collection of the tax was barred by statute. While it may be recognized that it is in the nature of mortals to avoid the payment of taxes, if there is any escape, the court cannot assume as a matter of law that the taxpayer would not have compromised the tax liability had it occurred to the officers that the collection of the taxes was barred by the statute. The compromise was not a collection of the taxes admittedly due, but a voluntary settlement of a tax liability to the government. In such case, the collector was merely a medium for receiving the amount tendered in compromise and for transmitting it to the Commissioner, who had the power to compromise. The taxes were abated by the compromise, and the right of recovery, if any, is against the United States as for money had and received.
For another reason, it seems to me the plaintiff must fail, if he had the right to press this claim. There is always a moral obligation to pay taxes, which is sufficient to support the consideration for their voluntary discharge after the tolling of the statute. In any event, under my previous conclusion respecting the incapacity of the plaintiff, any right to set aside the compromise, or to recover money mistakenly or wrongly paid, belongs to the trustee in bankruptcy.
Judgment may be entered for the United States, and findings and conclusions may be submitted for approval. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563598/ | 16 So. 3d 643 (2009)
Sandra Schmutz SMITH, Plaintiff-Appellant
v.
Steven Randall SMITH, Defendant-Appellant.
Steven Randall Smith, Plaintiff-Appellee
v.
Sandra Gail Schmutz Smith, Defendant-Appellee.
Nos. 44,663-CA, 44,664-CA.
Court of Appeal of Louisiana, Second Circuit.
August 19, 2009.
*646 Weems, Schimpf, Gilsoul, Haines & Landry, by Kenneth P. Haines, Shreveport, for Appellant, Sandra Gail Schmutz Smith.
Fortson & Bokenfohr, by James L. Fortson, Jr., Shreveport, for Appellee, Steven Randall Smith.
Before STEWART, GASKINS and DREW, JJ.
GASKINS, J.
Sandra Schmutz Smith (Sandra) appeals from a trial court judgment changing the domiciliary custody of her minor child to the father, Steven Randal Smith (Steve), denying Sandra's request to relocate with the child to Indiana, and denying her request for child support for the parties' emancipated daughter. For the following reasons, we affirm the trial court judgment.
FACTS
Sandra and Steve were married on December 28, 1985. Steve is employed with the United States Air Force; their last matrimonial domicile was Bossier City, Louisiana. Three children were born of the marriage: a son, Brian Joseph (DOB 7/25/89); a daughter, Angela Marie (DOB 8/22/91); and a daughter, Samantha Victoria (DOB 8/20/98). The parties separated on March 31, 2007. On April 16, 2007, Sandra filed for divorce under La. C.C. art. 102.
On June 28, 2007, in a stipulated judgment, Sandra and Steve were awarded joint custody of their children, with Sandra named the domiciliary parent. No visitation plan was set forth. Brian reached the age of majority early in the proceedings; there are no issues in this matter concerning custody or child support for him. Steve was ordered to pay $1,666 in child support for his daughters, as well as his proportional share of the uncovered medical and dental expenses for Angela and Samantha. Steve was also ordered to pay interim spousal support.
On January 10, 2008, Sandra filed a motion for contempt and for modification of visitation. She claimed that Steve failed to pay interim spousal support and his portion of the uncovered medical and dental expenses for Samantha. Sandra also claimed that Steve exercised his visitation sporadically; she asked for a visitation plan to be established.
On April 18, 2008, Steve filed a recoventional demand asking for a divorce under La. C.C. art. 103(1), claiming that the parties separated on March 31, 2007, and had lived separate and apart for one year.
On May 14, 2008, Sandra filed an answer to the reconventional demand seeking to modify custody and to assert a claim under the Post-Separation Family Violence Relief Act (PSFVRA) found in La. R.S. 9:361 et seq. Sandra claimed that at a birthday party for Brian on August 1, 2007, an argument erupted and Steve slapped Sandra. Sandra asserted that in March 2007, Steve mistreated Angela while she was doing her homework. She claimed that, over a period of time, the police were called to her house 13 times for domestic disturbances. Sandra asked for sole custody *647 and final spousal support as well as a temporary restraining order (TRO). On May 19, 2008, a TRO was issued against Steve.
On May 7, 2008, Steve filed a petition for protection from domestic abuse against Sandra claiming that she slapped and shoved him, threatened his life, spat at him and threw objects at him. On May 20, 2008, Steve moved to have his petition for a protective order dismissed. The court dismissed his petition without prejudice on that day. On May 22, 2008, Steve filed a motion to have his suit and Sandra's consolidated in the trial court.
Steve alleged that on May 21, 2008, Sandra sent a fax and a letter to him, stating that she desired to relocate her residence and that of the minor children to Indiana. Steve filed an opposition to the proposed relocation of the children. He asked to be appointed domiciliary parent and sought the appointment of a mental health professional to evaluate the parties and the children. Apparently at some stage of the proceedings, the parties agreed to emancipate Angela, who moved to Indiana to live with an aunt and uncle.
On May 29, 2008, Steve filed a petition for contempt, change of custody, denial of final spousal support, and protection from abuse. Steve outlined the number of times he had been physically attacked by Sandra. He stated that she repeatedly asked him to discipline the children and when he attempted to do so, she attacked him and called the police. He alleged that she frequently e-mailed him with threatening and harassing messages. He asserted that she once came to his house at night when he had visitation with Samantha, beat upon the door and demanded the return of the child. Sandra then called the police. Steve stated that Sandra kept a filthy house that was a health hazard and sought to have her pay rent for living in the house. He also argued that she is employed and should not be awarded final spousal support.
On June 19, 2008, a judgment of divorce was entered. On June 26, 2008, the court appointed a mental health professional, Shelley Booker, to evaluate the parties and the children, dismissed all TROs, and ordered that the physical custody of the children be shared.
On September 15, 2008, Sandra filed a petition for a preliminary injunction, contempt, and attorney fees. She alleged that on August 22, 2008, Steve coerced Samantha to let him into the house. He took pictures of all the rooms and gave them to Ms. Booker. The pictures depicted a dirty, poorly kept house. One picture shows what appears to be animal feces on the floor of one of the rooms. Sandra claimed that entering the house and taking the pictures violated her right to the exclusive use and occupancy of the house. She sought a preliminary injunction prohibiting Steve from coming into the house. Sandra claimed that she filed a police report and asked for attorney fees for filing this petition.
The issues raised by the parties were heard by the trial court on November 7, 24, and 26, 2008. Following the hearing, the trial court issued written findings of fact and reasons for judgment. The court first outlined the parties' issues. Sandra wanted sole custody under the PSFVRA, permission to relocate to Indiana with Samantha, relief for violation of a preliminary injunction when Steve took pictures of the inside of her house, child support for Samantha and the emancipated minor, and final spousal support. Steve sought an injunction against Sandra under the PSFVRA, a finding of contempt of court for Sandra's refusal of reasonable visitation, denial of final spousal support due to Sandra's fault in the breakup of the marriage, *648 and rent for the community residence. He also sought to be named domiciliary parent, to receive child support, and to prohibit Sandra's relocation with Samantha.
The trial court found that Sandra specifically waived her claim to final spousal support in a prior agreement in which Steve was obligated to pay her interim spousal support until 180 days after the divorce. The claim for rent was satisfied in a prior judgment whereby both parties waived claims for rent or reimbursement for payment of the monthly mortgage on community property.
The trial court determined that there had been no family violence as defined by the jurisprudence under the PSFVRA. The court found that both parties were guilty in causing arguments. The court noted that Sandra has longstanding chronic depression and has taken multiple medications for many years. According to the court, she has mental instability as would lend itself to domestic turbulence. The court found that the birthday party incident on August 1, 2007, was the only act of violence against Sandra. The slap was minimal and was done in self-defense. The court found that Steve was the more credible witness. The court stated that, even though the police were called, they did not make any pictures of Sandra's face after the slap because there were no marks. When Sandra sought medical attention, no marks were found. The court found that a single act of violence that did not cause serious injury was insufficient to meet the requirements for the PSFVRA.
The court found that Sandra's behavior is indicative of a depressive disorder and mental instability. The parties were ordered to communicate only by e-mail and to refrain from stalking each other. The court determined that there was insufficient evidence to find either party in contempt.
The court concluded that, when Steve entered the house and took the pictures of the house, Sandra left the doors unlocked for him to retrieve the child's bag for visitation. It was reasonable to expect that he would take pictures of the poor condition of the house. In examining the pictures, the court determined that they were indicative of a chronic depressive disorder and mental instability which cannot be a healthy or safe environment for a child.
The trial court rejected the recommendations of Ms. Booker, who suggested that Sandra be allowed to relocate to Indiana with Samantha. According to the court, the bases for her conclusions were erroneous or misplaced.
In rejecting Sandra's request to relocate, the court noted that the maternal grandparents live in Tennessee and the paternal grandparents are in Texas and Ohio, rather than in Indiana as argued by Sandra. Sandra had also asserted that Steve could relocate to another Air Force base near Indiana. The court found that this was incorrect; he works with B-52s and there is no base handling that type of aircraft in the Indiana area.
In determining child custody, the court considered the factors enumerated in La. C.C. art. 134 and concluded that it was in the best interest of the child to name Steve as domiciliary parent of Samantha with visitation granted to Sandra. A joint custody implementation plan was instituted. Sandra was ordered to pay child support in the amount of $260.82 per month and to pay 16.29 percent of the uncovered medical and dental expenses for Samantha. The court found that no child support was due for the emancipated minor daughter, Angela.
*649 On December 18, 2008, the trial court signed and filed a judgment incorporating its findings of fact. On December 30, 2008, Sandra filed a motion for new trial, alleging that the judgment was contrary to law and evidence. She claimed that she was denied a fair trial because the trial judge hurried the hearing and totally ignored the opinion of Ms. Booker, the mental health professional appointed by the court. Sandra pointed out that the evidence showed two instances in which Steve committed violent acts; therefore, she claimed that she had established a history of family violence under the PSFVRA. She also claimed that the house was messy during their marriage and the conditions depicted in the pictures were not a change in circumstances justifying a change of domiciliary parent.
The trial of this matter was heard and decided by Judge Dewey E. Burchett, Jr. The motion for new trial was heard and denied on February 2, 2009, by Judge Michael O. Craig, the successor to Judge Burchett's position. Judge Craig stated that he did not see anything legally wrong with the way Judge Burchett rendered his decision. Judge Burchett outlined all the factors under La. C.C. art. 134 concerning child custody in making his decision. Judge Craig noted that it was within the trial court's discretion to reject the mental health evaluator's opinion. Judge Craig observed that this matter was tried over three days and he did not find that Sandra was denied sufficient time to present her case.
Regarding the PSFVRA, Judge Craig observed that Judge Burchett's findings of fact extensively set forth the reasons why he did not find a history of family violence in this matter. Judge Craig stated that he did not find that this matter fell under one of the peremptory grounds of La. C.C. art. 1972 for new trial. He did not find that the judgment was contrary to the law and the evidence or that there was any new evidence not presented at trial. Based upon those reasons, the motion for new trial was denied. Sandra appealed.
POST-SEPARATION FAMILY VIOLENCE RELIEF ACT
Sandra argues that the trial court committed legal error in failing to apply the PSFVRA, found in La. R.S. 9:361 et seq., and therefore this court should make a de novo review of the record. Sandra insists that she proved several very specific instances of domestic abuse and that her medical records show that much of her depression was the result of domestic violence during the marriage.
Legal Principles
A trial court's determination of child custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Bordelon v. Bordelon, 390 So. 2d 1325 (La.1980); Lewis v. Lewis, 34,031 (La.App. 2d Cir.11/3/00), 771 So. 2d 856. The trial judge, having observed the witnesses, is in the best position to determine credibility. Lewis v. Lewis, supra; Luplow v. Luplow, 41,021 (La.App. 2d Cir.2/28/06), 924 So. 2d 1135.
Regarding child custody, visitation, and family violence, the PSFVRA specifies in La. R.S. 9:364(A):
A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent *650 has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent's participation as a custodial parent because of the other parent's absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.
The PSFVRA defines "family violence" to include physical and sexual abuse and any offense against the person as defined by the Louisiana Criminal Code, excluding negligent injury and defamation, committed by one parent against another parent or against any of the children. La. R.S. 9:362(3). In deciding whether a parent has a "history of perpetuating family violence," the trial court should look at the entire chronicle of the family, remaining mindful that the paramount goal of the legislation is the children's best interest. Such factors as the number, frequency, and severity of incidents will be relevant, as well as whether the violence occurred in the presence of the children, and to what extent there existed provocation for any violent act. Stated differently, the determination must be based on a review of the total circumstances of the family, and necessarily involves a weighing of the evidence. Simmons v. Simmons, 26,414 (La. App. 2d Cir.1/25/95), 649 So. 2d 799; Lewis v. Lewis, supra.
Discussion
The record shows that these parties have had a long, contentious relationship. Two specific instances were put forth at trial by Sandra to prove that Steve had a history of family violence and should not have domiciliary custody of Samantha. The first incident involved disciplining Angela and the second concerned slapping Sandra.
Angela testified that in March 2007, she was at home alone and received a call from Steve. He was upset because she had been dating an older boy and had posted inappropriate comments on the internet. Angela hung up on Steve. He came to the house, grabbed her by her hair in pushing her to the couch, and then spanked her with a belt. Angela stated that Steve had been drinking. The police were called and Steve was arrested.
Sandra testified that on the date of that incident in March 2007, she and Steve had been at a wedding. She stated that he had about six drinks. He then went back to the house and confronted Angela. Angela began yelling at Steve and he pulled her hair and hit her with a belt.
Regarding the incident, Brian testified that Angela was disrespectful and misbehaved, causing Steve to spank her with a belt. Steve testified that he was not intoxicated during the incident with Angela. He claimed that he took several of the drinks observed by Sandra to other wedding guests.
Officer April Hylbert of the Bossier City Police Department responded to the domestic violence call concerning Angela. The officer removed a clump of hair that had been pulled from Angela's head and filed it into evidence. She also observed a welt on Angela's hand.
In August 2007 when Steve slapped Sandra, she said that she got into an argument with him over criticism by his family of her child rearing practices. She stated that if they did not approve of how she was raising the children, they should not see the children at Thanksgiving and Christmas. She claimed that Steve kept pointing his *651 finger in her face and she brushed his hand away. She claimed that he hit her in the side of the face and knocked her to the ground. She sought medical attention the next day because her mouth hurt. The physician who saw her, Dr. William Maranto, found no objective evidence that Sandra had been slapped.
Giving his account of the incident, Steve testified that the family went out to dinner for Brian's birthday and returned to the house to open presents. During the course of their conversation, Sandra threatened that he would never see the children again. He stated that she kept pushing and shoving him and hitting him. He slapped her in self-defense. He denied knocking her to the ground. When he tried to leave, Sandra followed him outside, beat on his car and bent the antenna. Sandra admitted this behavior.
Officer Stephen Boothe of the Bossier City Police Department responded to the domestic disturbance call. He observed that Sandra had a slightly swollen left cheek and a slight red hand print on her left cheek. Officer Boothe did not photograph Sandra's face because the signs of the slap would not show up in a photograph.
Brian and Angela testified that they had seen their parents in physical altercations before and that Sandra frequently struck Steve. Angela often e-mailed Steve regarding erratic behavior by Sandra, which included throwing things at Angela and cursing. At one point, Angela stated that her mother was scaring her.
On one occasion, Sandra called the police and reported that Steve was driving while intoxicated when he had physical custody of Samantha. The police officer who answered the call went to a restaurant where Steve was eating with the child and other friends. The officer testified that Steve was not intoxicated. Steve stated that when he left the restaurant, Sandra was parked outside.
Sandra, who suffers from depression, threatened to commit suicide twice in two days in July 2008. On one of those occasions, Steve called 911 because Sandra said that she had taken a bottle of pills. Emergency personnel determined that Sandra had not taken an overdose.
There was also testimony that Sandra hit Steve and threw keys at him. The record shows that while Steve was exercising visitation with the children, Sandra went to his residence, beat upon his door, and caused a disturbance which resulted in the police being called.
There was testimony that Steve had engaged in fist fights with Brian. However, there was also testimony that Brian had thrown punches at his father and Steve responded.
In this matter, there is evidence that each party provoked verbal and sometimes physical altercations with the other. However, we do not find that the trial court was manifestly erroneous in finding that there was no showing of a history of family violence by Steve requiring the application of the PSFVRA. The PSFVRA provides that the court may find a history of perpetuating family violence if the court determines that one incident of family violence has resulted in serious bodily injury or if there is more than one incident of family violence. In this matter, no serious bodily injury has occurred.[1] Also, with *652 regard to the incident involving Angela, Steve received counseling and completed an anger management program. Because Steve participated in these programs, Ms. Booker, who performed mental health evaluations in this case, did not recommend awarding sole custody to Sandra under the PSFVRA.
As to the incident involving Sandra, the evidence shows that there was provocation by her. We also note that the application of the PSFVRA on the basis of a history of family violence would preclude an award of sole or joint custody to the parent with that history. In her brief, Sandra no longer seeks sole custody of Samantha, but asks to be restored as the domiciliary parent. Considering the total circumstances of this family and a weighing of the evidence, we do not find that the trial court was manifestly erroneous or committed legal error in failing to apply the PSFVRA in this matter.
TRIAL COURT'S CONCLUSIONS REGARDING DEPRESSION
Sandra argues that the trial court made two factually inappropriate and legally improper conclusions concerning her depression and erred in using those conclusions as the basis for its decision to modify custody. Sandra claims that the trial court erred in finding that the evidence of her longstanding chronic depression and multiple medications over many years is indicative of such mental instability as to lend itself to domestic turbulence. She also urges that the trial court erred in concluding that the condition of her home was indicative of a chronic depressive disorder and mental instability and was not a healthy or safe environment for Samantha. These arguments are without merit.
Discussion
Sandra argues that the trial court improperly made a medical conclusion regarding the connection between her depression and medications for that condition and the turbulence in her relationship with Steve. She contends that this conclusion could not properly be made by a lay person, but rather required testimony from a medical expert, which was not present in this matter. In support of this argument, she cites jurisprudence from medical malpractice cases requiring expert medical testimony to link medical treatment with injury.
We do not find that the medical malpractice cases cited by Sandra are dispositive in this matter. We also observe that evidentiary rules are somewhat relaxed in child custody matters. See La. C.E. art. 1101(B)(2). The record contains Sandra's medical records and lay testimony which show that she has suffered from depression and attention deficit hyperactivity disorder (ADHD) for many years. Steve testified that the parties began marriage counseling in the 1990s and that Sandra began taking medication for depression at that time. Her medications include Zoloft for depression, Vynase for ADHD, and Trazodone for a sleep disorder. She also testified that she occasionally uses Xanax.
Child custody issues are based upon the best interest of the child. One factor to be considered is the mental and physical health of each party. La. C.C. art. 134(7). Evidence of her longstanding depression, use of medication, erratic behavior, which included threats of suicide, along with a poorly kept house, provided a sufficient basis for the trial court to make a commonsense conclusion that Sandra' *653 mental health issues had an effect on the problems in the marriage and affected to her ability to serve as domiciliary parent. No medical expert testimony is required to make this conclusion based upon the evidence and testimony presented here. The trial court's finding was not clearly wrong or manifestly erroneous.
RELOCATION FACTORS AND RECOMMENDATION OF MENTAL HEALTH CARE PROFESSIONAL
Sandra urges that the trial court committed prejudicial legal error in failing to consider the elements of La. R.S. 9:355.12 in assessing the relocation of the child. In rejecting her request to relocate, the trial court did not mention these factors, but instead stated that it rejected the opinion of the court-appointed mental health care professional on this issue. Sandra argues that the mental health care professional considered the appropriate factors, but the trial court rejected that opinion without a valid basis.
In considering certain of the factors under La. R.S. 9:355.12, Sandra maintains that she has been primarily responsible for rearing the children and that she fostered a plan of visitation for Steve. If she were allowed to relocate to Indiana, she would have a job there and her daughter, Angela, as well as other family members already live there. She argues that Steve could relocate to be closer to the family. These arguments are without merit.
Legal Principles
It is well settled in Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Raney v. Wren, XXXX-XXXX (La. App. 1st Cir.11/6/98), 722 So. 2d 54. After weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. The weight given expert testimony is dependent upon the experts' professional qualifications and experience and the factors upon which the opinions are based. Derbigny v. Derbigny, 34,672 (La.App. 2d Cir.4/6/01), 785 So. 2d 989; Cain v. Cain, 39,903 (La.App. 2d Cir.5/11/05), 903 So. 2d 590, writ denied, XXXX-XXXX (La.6/15/05), 904 So. 2d 679, cert. denied, 546 U.S. 978, 126 S. Ct. 563, 163 L. Ed. 2d 462 (2005).
Further, a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Goodwin v. Goodwin, 618 So. 2d 579 (La.App. 2d Cir.1993), writ denied, 623 So. 2d 1340 (La.1993); Raney v. Wren, supra.
The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. In determining the child's best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent's general quality of life. La. R.S. 9:355.13.
La. R.S. 9:355.12 requires the court to consider certain enumerated factors.[2] See *654 Curole v. Curole, XXXX-XXXX (La.10/15/2002), 828 So. 2d 1094. Although the statute mandates that all of the factors be considered by the court, it does not dictate preferential consideration of certain factors. Curole v. Curole, supra; Johnson v. Spurlock, 07-949 (La.App. 5th Cir.5/27/08), 986 So. 2d 724, writ denied, XXXX-XXXX (La.7/25/08), 986 So. 2d 670.
A court commits legal error when it fails to consider the factors for relocation and instead completes an evaluation of the best interest of the child under La. C.C. art. 134. Such error requires a de novo review of the appropriate factors. See Johnson v. Spurlock, supra.
Discussion
In the present case, the trial court did not consider the factors under La. R.S. 9:355.12 in denying the request by Sandra to relocate with Samantha. Rather, the trial court applied the factors for evaluation of the best interest of the child under La. C.C. art. 134. Because this constitutes legal error, we must make a de novo review and analyze the factors under La. R.S. 9:355.12.
The record shows that the child has a good relationship with both parents. Each spends a significant amount of time with the child. The father's family lives in Texas and the maternal grandparents reside in Tennessee. The mother's sister and her husband live in Indiana and, as discussed earlier, Angela now lives in that state with them. The child's adult brother indicated an intent to remain in Louisiana. There is no showing that the child would have greater support from family in Indiana than in Louisiana.
The child is 10 years old and has lived most of her life in Louisiana. Given her young age, there is no showing that the relocation would have a significant negative impact, but there is no showing of a particularly positive impact either.
Given the distance between Louisiana and Indiana, the relocation would not preserve a good relationship with the nonrelocating father due to the difficulties in arranging suitable visitation.
*655 The child verbalized a desire not to be involved in the proceeding. She stated that she enjoys her current school, but was interested in relocating to Indiana.
The record shows that the mother, who is seeking relocation, has attempted to thwart the relationship between the father and the child by interfering with his visitation. She has appeared unannounced at his residence, caused disturbances, and called the police. On one occasion, the mother called the police and reported that the father was driving while intoxicated during visitation with the child. The police officer who responded to the call determined that this allegation was untrue.
The mother claims that she can obtain employment in Indiana. However, the record contains only her bare assertions on this issue. In Louisiana, she has a good job. Although the mother claims that there are superior educational opportunities for the child in Indiana, the evidence and testimony do not solidly establish this fact. There is no showing that the relocation will enhance the general quality of life for the mother and the child.
The reasons for the relocation are aimed chiefly at limiting contact between the mother and the father.
The mother currently has stable employment in Louisiana. The relocation is not necessary to improve her circumstances. The father has abided by his support obligations.
The record shows that the father could not readily relocate to Indiana and continue his career as an employee of the United States Air Force in his current capacity.
Both parents have engaged in violence toward the other. The father has obtained counseling. Although the mother claims that the father abuses alcohol, there is testimony that he has limited his intake.
Regarding other factors affecting the best interest of the child, as discussed above, the mother suffers from depression and has recently expressed suicidal tendencies.
After analyzing and applying the La. R.S. 9:355.12 factors to this case, we find, as did the trial court, that relocation with the mother to Indiana is not in the best interest of the child.
Further, we find that the trial court did not err in rejecting Ms. Booker's recommendation regarding relocation. As observed by the trial court, Ms. Booker had faulty information and conclusions in several areas. She erroneously concluded that the maternal and paternal extended family live in Indiana. When questioned about this, Ms. Booker maintained that the maternal grandparents live in Indiana. Actually, Sandra's parents live in Tennessee and Steve's family lives in Texas. The only relatives the mother has living in Indiana are her sister's family and the parties' emancipated daughter.
Ms. Booker did not recommend a 50/50 joint custody arrangement if relocation was not allowed because of the father's variable work schedule and the possibility of deployment. However, Lieutenant Colonel Joseph Jones, the father's supervisor, testified that the father now has a position with regular hours and no chance of deployment. The witness testified that the unit had been converted to flight training and would not be deployed.
For these reasons, we find that the trial court did not err in rejecting Ms. Booker's recommendations. We also find that relocation with Sandra to Indiana is not in the best interest of the child.
CHANGE IN CIRCUMSTANCES
Sandra contends that the trial court erred in modifying domiciliary custody *656 without a showing of a material change in circumstances since the rendition of the last custody order. This argument is without merit.
Legal Principles
The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. Luplow v. Luplow, supra. In cases where the original custody decree is a stipulated judgment and the rule of Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986), is inapplicable, the party seeking modification must prove: (1) that there has been a material change of circumstances since the original custody decree was entered; and (2) that the proposed modification is in the best interest of the child. Luplow v. Luplow, supra. See also Hobbs v. Hobbs, 42,353 (La.App. 2d Cir.8/15/07), 962 So. 2d 1148.
In determining the best interest of a child in custody cases, there must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of evidence presented in each particular case. Luplow v. Luplow, supra.
According to La. C.C. art. 134, the relevant factors to be considered in determining the best interest of the child in custody cases may include the following:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
The court is not bound to make a mechanical evaluation of all the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not required to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Luplow v. Luplow, supra.
The ultimate "best interest of the child" decision remains squarely in the exclusive province of the trial court, a decision which necessarily focuses on all of the evidence and testimony presented. Luplow v. Luplow, supra.
*657 Discussion
In the instant case, the parties had a stipulated judgment regarding child custody. The parties agreed to joint custody with Sandra designated as the domiciliary parent. Therefore, any change in that arrangement requires a showing of a material change in circumstances and that a change from the original decree is in the best interest of the child.
The trial court's reasons for judgment contain an analysis of the factors set forth under La. C.C. art. 134. The trial court found that both parents love the child and the child is bonded to both parents.
The trial court found that both parties can give love and affection to the child, but the mother's chronic depressive disorder affects her ability to provide guidance and act as a proper role model.
Regarding the capacity to provide food, clothing, shelter and material needs, the trial court found that this factor weighed slightly in favor of the father due to his larger income. However, the trial court considered that the child support award to the domiciliary parent can substantially offset this factor.
The trial court determined that the child has not lived in a stable, adequate environment due to the discord in the marriage and the depressive disorder of the mother.
The trial court concluded that there was no permanence, as a family unit, of the existing or custodial homes brought about by the dissolution of the marriage, the move by one child to Indiana, and the intent of the adult child to remain in Louisiana.
The trial court stated that the moral fitness of the parties is not a factor.
As to the mental and physical health of the parties, the court found that the father was in excellent physical condition and there was no evidence that he suffered from any mental instability or illness. On the other hand, the mother suffers from a hyperactivity disorder and depression.
The trial court concluded that the home, school, and community history of the child was not an issue in this case.
The trial court noted that the child declined to express a preference as to custodial parent.
The trial court determined that the father was much more willing and able to facilitate a close relationship between the child and the other parent. According to the trial court, the mother somewhat abused her position as domiciliary parent.
The trial court acknowledged that the parties live within a few miles of each other now, but would not if the mother moves to Indiana.
The trial court stated that both parties shared the responsibility for raising the child. The court found that there was evidence of the father cooking and helping with homework. Although the court did not note any evidence of the mother helping with homework, the court assumed that she shared in rearing the children.
Based upon these factors, the trial court found that the best interest of the child would be served by designating the father as the domiciliary parent of the child.
Sandra contends that the trial court was persuaded to change domiciliary custody of the child to Steve based upon the pictures depicting a messy house and upon evidence of her depression. She argues that the living conditions in the family home had always been messy and that her depression predated the divorce. Therefore, she claims that these factors do not constitute a material change in circumstances sufficient to warrant a change of domiciliary custody.
*658 Sandra moved into a clean house owned by the parties and previously used as rental property. While the parties' residence may have been messy during the marriage, there was testimony that the conditions shown at trial developed since the separation and were worse than during the marriage. Steve testified that during the marriage, he cleaned the house sometimes.
It was also shown at trial that Sandra's depression was worse since the breakup of the marriage. The record shows that she threatened to commit suicide twice in two days. While she has suffered from depression for many years, there was no showing of previous suicidal tendencies. The record also contains testimony that Angela was increasingly troubled by her mother's behavior, at one point text messaging her father that Sandra was scaring her. These factors, particularly Sandra's suicide threats, are sufficient to show a material change in circumstances warranting a change of domiciliary custody to Steve. Also, the father's work circumstances have changed. His work hours are now more regular.
Based upon these facts, the trial court did not err in finding a material change in circumstances and in concluding that changing the domiciliary parent to Steve was in the best interest of the child.
VIOLATION OF THE EXCLUSIVE USE AND OCCUPANCY OF THE HOME
Sandra claims that the trial court erred in finding that Steve did not violate her exclusive use and occupancy of the home when he obtained pictures of the inside of the house which were admitted into evidence. This argument is without merit.
Discussion
This argument arises from an incident in which Steve entered the residence occupied by Sandra and Samantha to retrieve the child's luggage for visitation. After observing the poor condition of the house, Steve took pictures which he presented to Ms. Booker. The photographs were ultimately introduced into evidence in this case. Steve claims that he went into the house with Sandra's permission to get the child's suitcase for visitation. Sandra argues that the trial court was wrong in stating that the house was unlocked and that she had given Steve permission to enter the house. She states that Samantha had permission to go into the house to get her suitcase and that she invited Steve inside to see her turtle.
This issue turns on a credibility call of the witnesses. The trial court found Steve's testimony credible that he had permission to be in the house to retrieve the child's luggage. We do not find that the trial court was manifestly erroneous in determining the father's testimony to be credible and in failing to find any violation of the mother's rights in this matter. Accordingly, the trial court's decision in this regard is affirmed.
CHILD SUPPORT FOR EMANCIPATED DAUGHTER
Sandra alleges that the trial court erred in failing to find that Steve continued to owe child support for their emancipated daughter, Angela. According to Sandra, an award of child support continues with respect to any unmarried child who attains the age of majority or to an emancipated child as long as the child is a full time student in good standing in a secondary school or its equivalent, has not turned 19, and is dependent on either parent. Sandra maintains that Angela was emancipated in order to allow her to relocate to Indiana. She is not yet 19 years old and continues to be a student in good standing in a secondary school. Angela is *659M in need of knee surgery. She is living with her aunt and uncle who need help paying for Angela's medical care. Sandra argues that the trial court should have at least ordered Steve to maintain medical insurance for Angela. These arguments are without merit.
Legal Principles
Regarding the termination of child support upon majority or emancipation, La. R.S. 9:315.22(C) provides:
C. An award of child support continues with respect to any unmarried child who attains the age of majority, or to a child who is emancipated relieving the child of the disabilities attached to minority, as long as the child is a full-time student in good standing in a secondary school or its equivalent, has not attained the age of nineteen, and is dependent upon either parent. Either the primary domiciliary parent or the major or emancipated child is the proper party to enforce an award of child support pursuant to this Subsection.
Discussion
Under La. R.S. 9:315.22(C), in order for an award of child support to continue for an emancipated child, the child must be a full-time student in good standing in a secondary school or its equivalent, not yet 19 years old, and dependent upon either parent. In finding that Steve was no longer required to provide child support for Angela, the trial court relied upon Authement v. Authement, 96-1289 (La.App. 1st Cir.5/9/97), 694 So. 2d 1129.[3] In Authement, the 18-year-old daughter of the parties moved in with a boyfriend for a couple of months before receiving her high school diploma. She later returned to her mother's house to live. The trial court found that during the time that she lived with the boyfriend, she was not dependent upon either of her parents.
The father argues that when Angela was emancipated and moved to Indiana, she moved in with her aunt and uncle and is supported by them. Therefore, she ceased to be dependent upon either of her parents. Angela's aunt, Karen Zimmerman, testified that she and her husband provide Angela a place to live, food, and transportation. They have paid the doctor's fee for Angela's knee surgery, but have not yet paid the hospital portion of the medical bill. They were not able to cover Angela on their health care insurance. At trial, they requested that Steve maintain health insurance on Angela. Ms. Zimmerman stated that Sandra has sent her some cash for Angela's use, but did not specify the amount received.
Steve testified that he has maintained medical insurance for Angela and gave her stock valued at $10,000.
Because Ms. Zimmerman testified that she and her husband are supplying all the material needs of the child, Angela is not dependent upon her parents for support. Therefore, the trial court did not err in denying child support for Angela. However, we strongly encourage Steve to maintain medical insurance for Angela. We also urge both parents to provide for Angela's needs. This is in the nature of a natural obligation under La. C.C. arts. 1760 and 1761.[4] We note that, should *660 Angela become dependent upon her parents prior to attaining the age of 19, while enrolled as a full-time student in good standing in a secondary school or its equivalent, she can petition the court for child support. La. R.S. 9:315.22.
FAIR TRIAL
Sandra alleges that she was denied a fair trial due to the time limitations placed upon the presentation of the evidence and testimony. This matter was tried on November 7, 24 and 26, 2008. Sandra claims that on the first day, the judge held court for only 1½ hours. On November 26, the judge cut court short for the Thanksgiving holiday. She contends that she was not able to present evidence about the numerous times that the police were called for domestic violence and she was not able to make any rebuttal. This argument is without merit.
Legal Principles
La. Constitution Art. 1, § 22 provides:
All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.
La. C.C.P. art. 1631 provides, in pertinent part:
The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
The court's power under La. C.C.P. art. 1631 to control trial proceedings is limited by the phrase "so that justice is done." The due process clauses of the Louisiana Constitution and the Fourteenth Amendment to the United States Constitution guarantee litigants a right to a fair hearing. However, "due process" does not mean litigants are entitled to an unlimited amount of the court's time. Goodwin v. Goodwin, supra.
Discussion
The trial court in the present case did not limit the time the parties had to present evidence in the same way that the trial court did in Goodwin. In Goodwin, each party was given a specific amount of time to present its case. On the first day of trial in the present matter, November 7, 2008, the trial court informed the parties that it had only 1½ hours of trial time available that day. The trial judge was defeated for reelection and had only two remaining trial dates, November 24 and 26, 2008, before the end of his term in office. The trial court cut the proceedings short on November 26, 2008, due to the impending Thanksgiving holiday. The trial court stated that if the proceedings went beyond the amount of trial time available, an interim order would be entered.
The parties made strategy decisions and finished presenting their cases in the time allotted. The record shows that Sandra utilized the bulk of the trial time available and called numerous witnesses. Although Sandra complains that, because of the time constraints, she was not able to present evidence of the 13 times she claims the police were called for domestic disturbances, the record simply fails to demonstrate that she was prevented from presenting any relevant evidence in this matter. The choice not to introduce the evidence or to make a proffer of the evidence was a strategy choice made at trial. By failing to introduce the evidence or make a proffer, Sandra has waived the right to complain of its exclusion on appeal. *661 See and compare Goodwin v. Goodwin, supra.
Further, Sandra was given the opportunity to present rebuttal evidence, but chose not to do so. The record in this case does not show that Sandra's due process rights were violated.
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court in all respects. Costs in this court are assessed to Sandra Schmutz Smith.
AFFIRMED.
NOTES
[1] Sandra cites Lewis v. Lewis, supra, in which this court reversed the trial court for failing to apply the PSFVRA. She claims that this court should again reverse the trial court and award domiciliary custody of Samantha to her and allow her to relocate to Indiana. The case of Lewis v. Lewis, supra, is factually distinguishable from the present case. In Lewis, the trial court failed to apply the PSFVRA even though the husband had seriously injured the wife, resulting in hospitalization.
[2] La. R.S. 9:355.12 provides:
A. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.
[3] Authement v. Authement, supra, was abrogated on other grounds in Stogner v. Stogner, XXXX-XXXX (La.7/7/99), 739 So. 2d 762.
[4] La. C.C. art. 1760 provides:
A natural obligation arises from circumstances in which the law implies a particular moral duty to render a performance. La. C.C. art. 1761 states, in pertinent part: A natural obligation is not enforceable by judicial action. Nevertheless, whatever has been freely performed in compliance with a natural obligation may not be reclaimed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564542/ | 76 F.2d 380 (1935)
SAISA
v.
LILJA.
No. 2962.
Circuit Court of Appeals, First Circuit.
March 9, 1935.
Hubert C. Thompson, of Boston, Mass., for appellant.
Herman Loewenberg, of Boston, Mass. (Charles M. Lerer, of Boston, Mass., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
This was an action under the Massachusetts statute to recover damages for negligently causing death. There was a verdict for the plaintiff, administrator of the person killed, and the defendant has appealed. We shall refer to the parties, plaintiff and defendant, as they appeared in the lower court.
From the evidence submitted, the jury would have been warranted in finding that the defendant and one Keefe, being together at a gas station with their automobiles outside, agreed to race their cars over the public highway from Maynard, Mass., to West Concord, Mass., and back, a distance of six or seven miles; that this agreement was made at about 9.30 p. m. on May 24, 1933, and the two men immediately went out and started the race; that, after having made the turn at West Concord and while on his way back, Keefe, driving at high speed, struck and killed the plaintiff's intestate who was walking with two friends along the side of the road; that the accident was due to the immoderate speed and careless driving of Keefe.
*381 The defendant testified that he was not in the vicinity of the accident at the time when it occurred; that he had abandoned the race some time before, and his car was not near Keefe's at that time and did not in any way cause Keefe to hit the deceased. There was evidence from other witnesses in support of his statements. But there was also testimony of contrary character, indicating that at the time of the accident, the defendant was actively racing with Keefe, and that his car was in the general vicinity of Keefe's car, although not close to it. There was no evidence, and no contention, that the defendant's car struck the deceased, nor that immediate pressure of the defendant's car on Keefe's car caused the accident.
The District Judge left the case to the jury on the questions whether the death was caused by Keefe's negligence, and, if so, whether that negligence was in any degree attributable to the agreement to race made between him and the defendant; and on the further question whether, if they found that Keefe was negligent and his negligence was in part at least attributable to his agreement with the defendant, the latter's connection with the affair amounted to negligence on his part and was a proximate cause of the accident. The verdict shows that all these questions were answered in favor of the plaintiff. The question as to the defendant's negligence was made necessary by the provisions of the Massachusetts statute under which damages for negligently causing death are assessed as a penalty according to the degree of culpability. Mass. Gen. Laws (Ter. Ed.) c. 229, § 5; Brown v. Thayer, 212 Mass. 392, 99 N.E. 237. At common law no such question would be involved, both the defendant and Keefe being regarded as joint tort-feasors, or as persons engaged in an illegal act. De Carvalho v. Brunner, 223 N.Y. 284, 119 N.E. 563.
It is clear that the defendant was not entitled to a directed verdict. The only question of law sufficiently doubtful to call for discussion is that presented by the defendant's request for a ruling that if he had in fact abandoned the race before the accident, he was not responsible for Keefe's action. The District Judge instructed the jury in substance that if the defendant and Keefe engaged in a race as stated, and Keefe at a time when he did not know that the defendant had withdrawn and supposed that the race was still on, negligently struck the intestate, the defendant would be liable if the jury regarded his connection with the accident as negligence. In our opinion the ruling was right. The race itself was a joint enterprise in which each racer was a participant, although "because of the statute the damages must be assessed severally, with separate verdicts and judgments." Braley, J., Brown v. Thayer, 212 Mass. 392, 99 N.E. 237, 240. As against persons legitimately using the highway and entitled to the rights of travelers on it, the defendant and Keefe were engaged in a joint tort, in the prosecution of which each was responsible for the acts of the other. Rose v. Gypsum City, 104 Kan. 412, 179 P. 348; Hanrahan v. Cochran, 12 A.D. 91, 42 N. Y. S. 1031. This responsibility lasted as long as either continued to act under the agreement for the race, without knowledge of its abandonment by the other, and within the scope of it. Slate v. Allen, 47 Conn. 121; Commonwealth v. Devereaux, 256 Mass. 387, 395, 152 N.E. 380.
The defendant's other requests for rulings were properly refused.
The judgment of the District Court is affirmed, with costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858144/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-299-CR
ORVIS LEE DAVIS, JR.,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW OF CALDWELL COUNTY
NO. 21,893, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of theft of service having a value of $20 or more but
less than $200. Tex. Penal Code Ann. § 31.04 (West 1989 & Supp. 1993). The court assessed
punishment at incarceration for 180 days and a $250 fine, suspended imposition of sentence, and
placed appellant on probation.
On the night of September 18, 1992, Akbarali M. Samanani, owner of a Lockhart
motel, saw a man and woman leave room 505 of the motel and drive away. Samanani, who knew
that room 505 had not been rented that night, recorded the license plate number of the car and
reported it to the police. The car was registered to Sheryl Shannon of Lockhart. When
questioned by Lockhart police officer John Roescher, Shannon admitted going to the motel room
with appellant, who had a key, and staying for two hours. On September 28, Roescher spoke to
appellant and told him "that he needed to go talk to Mr. Samanani about that incident." Roescher
explained to appellant that Samanani had agreed that no charges would be filed if appellant would
pay for the use of the room and return the key. Although appellant visited with Samanani that day, he neither paid for the room nor returned the key. When subsequently
arrested, appellant had a master key intended for use by the motel's housekeeping staff.
Samanani testified that during their meeting on September 28, appellant told him
that he was in room 505 on September 18, that he would pay Samanani for the room, and that he
would return the key. In his only point of error, appellant contends this testimony was
inadmissible hearsay because his statements to Samanani were made pursuant to plea negotiations.
The testimony was not hearsay. Appellant's statements to Samanani were
admissions by a party-opponent. Tex. R. Crim. Evid. 801(e)(2). Further, the statements were
not made in the course of plea discussions with an attorney for the prosecuting authority, and
therefore were not inadmissible plea discussions. Tex. R. Crim. Evid. 410(3).
In his argument under this point of error, appellant also relies on the more general
proposition that a statement by the accused is inadmissible if it is induced by a positive promise
of a benefit to the accused made by someone in authority and of a character likely to influence the
accused to speak untruthfully. Wayne v. State, 756 S.W.2d 724, 728 (Tex. Crim. App. 1988);
Fisher v. State, 379 S.W.2d 900 (Tex. Crim. App. 1964). While there is evidence that appellant
was told he would not be prosecuted if he paid for the use of the room and returned the key, there
is no evidence of any promised benefit in exchange for his statements to Samanani.
Finally, any error in the admission of the challenged testimony was harmless
beyond a reasonable doubt. Tex. R. App. P. 81(b). A man and a woman were seen leaving room
505. Shannon, the owner of the car in which the couple was seen driving away, admitted being
in the room with appellant. When arrested, appellant had a key to the room. Under the
circumstances, we are satisfied that the admission of appellant's statements to Samanani, if error,
did not contribute to the conviction. The point of error is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Jones and Kidd
Affirmed
Filed: November 10, 1993
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2460952/ | 252 P.3d 646 (2011)
BARRY
v.
WOOD.
Nos. 104150, 104151.
Court of Appeals of Kansas.
May 27, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454098/ | (2008)
Thomas M. SANTORA, Plaintiff,
v.
STARWOOD HOTEL AND RESORTS WORLDWIDE, INC., etc., et al., Defendants.
No. 05 C 6391.
United States District Court, N.D. Illinois, Eastern Division.
August 14, 2008.
MEMORANDUM OPINION AND ORDER
JAMES B. MORAN, Senior District Judge.
Plaintiff Thomas Santora brought this action against Starwood Hotel and Resorts Worldwide, Inc., The Luxury Collection, Hotel Danieli-Venice, The Sheraton LLC, formerly ITT Sheraton Corporation, ("Sheraton LLC") and Sheraton International, Inc. ("Sheraton International"). Plaintiff alleges negligence in connection with injuries he sustained when he tripped and fell on a carpet runner while staying at the Hotel Danieli-Venice in Venice, Italy. Defendants Sheraton LLC and Sheraton International move to dismiss, arguing a lack of personal jurisdiction and failure of the plaintiffs second amended complaint to relate back to his original complaint. For the reasons stated below, we grant defendants' motions to dismiss.
BACKGROUND
Plaintiff filed his original complaint against Starwood in the Circuit Court of Cook County, Illinois, alleging several state law claims arising from a trip-and-fall incident that occurred at the Hotel Danieli-Venice ("Danieli") in Italy, in 2004. Starwood removed the case to this district court and filed its answer on November 8, 2005. On March 2, 2006, it moved to dismiss the case pursuant to the doctrine of forum non conveniens, and included in its motion the affidavit of Massimilliano Macaione, Italian general counsel to Starwood, who stated that Starwood did not own, operate or control the Danieli at the time of plaintiff's injury, and that the Danieli was operated by CIGA S.R.L. and CIGA Gestinoi S.R.L. ("the CIGA defendants"). Defendant's motion to dismiss was denied on May 15, 2006, 2006 WL 1371432, and plaintiff was granted leave to amend his complaint to include these new defendants. Thereafter, on January 18, 2007, the CIGA defendants moved to dismiss plaintiff's complaint for lack of personal jurisdiction. That motion was granted on February 2, 2007.
On March 1, 2007, Starwood filed a motion for summary judgment, and on March 12, 2007, plaintiff initiated discovery against Starwood. As part of the discovery responses, plaintiff was tendered a letter which contained the general corporate structure of Starwood and its relation to the CIGA defendants. Included in that letter was information stating that at the time of the incident Starwood owned 100% of the stock of Sheraton International, Inc., which in turn wholly-owned Starwood Hotels Italia, which in turn owned 100% of the CIGA defendants. Based on this information, plaintiff sought to add ITT Sheraton Corporation, Sheraton International, Inc. and Sheraton Hotels Italia S.R.L./Starwood Hotels Italia S.R.L. ("the Sheraton defendants"), as parties to this action. Though we did not have as much information as we would have preferred in making such a determination, we erred on the side of caution and permitted plaintiff to add the new defendants, noting that those defendants could move to dismiss based on lack of notice or lack of personal jurisdiction at a later time. Now, Sheraton LLC, (formerly ITT Sheraton) and Sheraton International move to dismiss for lack of personal jurisdiction.
DISCUSSION
A federal court sitting in diversity must rely on the law of personal jurisdiction that governs the courts of general jurisdiction in the state where the court is sitting. Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir.2002). Where jurisdiction is contested, the burden of establishing it rests on the plaintiff. Ballard v. Fred E. Rawlins, M.D., Inc., 101 Ill. App.3d 601, 56 Ill.Dec. 940, 428 N.E.2d 532, 535 (Ill.App.Ct.1981). When a motion to dismiss is decided without an evidentiary hearing, plaintiff need only make a prima facie showing that jurisdiction exists. Loos v. American Energy Savers Inc., 168 Ill.App.3d 558, 119 Ill.Dec. 179, 522 N.E.2d 841, 843 (Ill.App.Ct.1988). All well-pleaded factual allegations in plaintiffs complaint are accepted as true, and all reasonable inferences are drawn in plaintiff's favor. Tobin for Governor v. Ill. Board of Elections, 268 F.3d 517, 521 (7th Cir.2001).
A two-part inquiry must be made in determining if an Illinois court can exercise personal jurisdiction over a nonresident defendant: (1) whether Illinois' longarm statute permits in personam jurisdiction and (2) whether the assertion of jurisdiction under the long-arm statute would be inconsistent with due process. First National Bank v. El Camino Resources, Ltd., 447 F.Supp.2d 902, 905 (N.D.Ill.2006). Subsections (a) and (b) of the Illinois' longarm statute specifically provide enumerated instances in which Illinois courts have personal jurisdiction over parties. 735 ILCS 5/2-209. Subsection (c) of the statute provides a catch-all provision that states that "[a] court may exercise jurisdiction on any other basis now or hereinafter permitted by the Illinois Constitution or Constitution of the United States." 735 ILCS 5/2-209(c). This subsection is to be treated as an independent basis for exercising personal jurisdiction over a defendant. Kostal v. Pinkus Dermatopathology Lab. P.C., 357 Ill.App.3d 381, 293 Ill.Dec. 150, 827 N.E.2d 1031, 1036 (Ill.App.Ct. 2005). Plaintiff does not argue that either defendant falls within one of the enumerated categories under subsections (a) or (b), and so we only discuss subsection (c).
The Seventh Circuit has held that subsection(c) must be read broadly to provide jurisdiction to the degree allowed by Illinois and the United States Constitution. Hyatt, 302 F.3d at 714-715. Furthermore, there is no operative difference between the limits imposed by the Illinois constitution and federal limits placed on personal jurisdiction. See Klump v. Duffus, 71 F.3d 1368, 1371 (7th Cir.1995). As a result, the two-step inquiry, looking at the Illinois long-arm statute and the U.S. Constitution, conflates into one, and this court will simply look at the Fourteenth Amendment's due process restrictions on the exercise of personal jurisdiction when considering whether either corporation has sufficient contact with Illinois to be subject to the state's courts.
Due process analysis under the Fourteenth Amendment requires that a defendant have sufficient minimum contact with the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In order to perform a minimum contacts analysis, we must first determine whether plaintiff seeks to assert specific or general jurisdiction over the defendant. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir.1997). Specific jurisdiction refers to jurisdiction over a defendant in a suit "arising out of" or "related to" the defendant's contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In contrast, general jurisdiction is for suits neither arising out of, nor related to the defendant's contacts, and is permitted only where the defendant has "continuous and systematic general business contacts" with the forum. Id. at 416, 104 S.Ct. 1868. Relative to specific jurisdiction, general jurisdiction is a demanding standard that is considerably more stringent. First National Bank v. El Camino Resources, Ltd., 447 F.Supp.2d at 906. Since plaintiffs injury occurred in Italy, it does not arise out of, and is not related to, any ties that defendants may have to Illinois. Therefore, the proper standard by which to judge plaintiffs contacts is that of general jurisdiction.
A. Minimum Contacts
The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. International Shoe Co., 326 U.S. at 319, 66 S.Ct. 154. A defendant must purposefully avail itself of the privilege of conducting activities within the forum state. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). "Purposeful availment" means that the defendant will not be haled into court as a result of random, fortuitous, or attenuated contacts. Keeton v. Hustler Magazine Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). A defendant is required to have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
Sheraton International and Sheraton LLC argue that they conduct no business in and have no ties with the State of Illinois, and that as a result this court cannot exercise personal jurisdiction over them. That is clearly so with respect to Sheraton International. Sheraton International offers the affidavit of Michael Dojlidko, the vice-president of the company, who affirms that Sheraton International, Inc. has no ties to this state (Dojlidko Aff., p. 2-3). He states that it is not, and never has been, incorporated in Illinois, and does not conduct any business here, own property, have bank accounts, offices or employees, or pay taxes. He also avers that Sheraton International does not make any sales or conduct marketing in Illinois. Plaintiff has offered no evidence to the contrary. Moreover, plaintiff has not alleged that Sheraton International has had a registered agent in the state. A prima facie case regarding personal jurisdiction has not been made by plaintiff, and Sheraton International's motion to dismiss is granted.
I. Sheraton LLCAgent Accepting Service of Process in Illinois
Plaintiff's claim that this court has jurisdiction over Sheraton LLC must be analyzed in greater detail. Sheraton LLC came into existence in early 2006 (Dojlidko dep., p. 9).[1] Plaintiffs alleged injuries occurred in 2004, prior to Sheraton LLC's incorporation, when it was known as ITT Sheraton Corporation.[2] During much of this time the company was registered as a foreign corporation authorized to do business in Illinois, with an agent accepting service of process in the state. On September 14, 2006, this agent was withdrawn from accepting service in Illinois. Sheraton LLC, after its incorporation in early 2006, was never registered as a foreign corporation authorized to do business in Illinois (Dojlidko dep., p. 10)
Sheraton LLC argues that the only relevant ties are those it fostered with Illinois after its re-incorporation. The general rule under Illinois law is that a corporation that purchases the assets of another corporation is not liable for the debts and liabilities of the transferor. Hernandez v. Johnson Press Corp., 70 Ill. App.3d 664, 26 Ill.Dec. 777, 388 N.E.2d 778, 779 (Ill.App.Ct.1979). There are, however, several exceptions to this rule of corporate non-liability: (1) where there is an express or implied agreement of assumption; (2) where the transaction amounts to a consolidation or merger of the purchaser or seller corporation; (3) where the purchaser is merely a continuation of the seller; or (4) where the transaction is for the fraudulent purpose of escaping liability for the seller's obligations. Vernon v. Schuster, 179 Ill.2d 338, 228 Ill.Dec. 195, 688 N.E.2d 1172, 1175 (Ill. 1997). Plaintiff proffers that the fourth exception should apply, arguing that Sheraton LLC went through this corporate shift in order to avoid liability for the alleged harms that have befallen plaintiff. He does not, however, offer any evidence to support this proposition, nor does he allege such a thing in his complaint.[3] A prima facie showing of personal jurisdiction must be based on either uncontroverted allegations in plaintiffs complaint, or where controverted by defendant's affidavits, by evidence and specific facts set forth in the record. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987). Further, plaintiff cannot seek to amend his complaint by making new, unsupported allegations in his response to the motion to dismiss. Lapham-Hickey Steel Corp. v. A.G. Edwards Trust Co., 2003 WL 22324877, *2-3, 2003 U.S. Dist. Lexis 17988, *7 (N.D.Ill.2003).[4] As such, this court will not look at any contacts that ITT Sheraton Corporation or The Sheraton Corporation may have had with Illinois in determining personal jurisdiction.
II. Sheraton LLCFranchises in Illinois
Plaintiff argues that the existence of several Sheraton franchises in Illinois results in this court's ability to exercise personal jurisdiction over Sheraton LLC. The standard rule is that corporate ownership alone is not sufficient for personal jurisdiction, and the jurisdictional contacts of a subsidiary corporation cannot be imputed to the parent. Central States, S.E. & S.W. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 943-944 (7th Cir.2000). Similarly, the mere fact that a franchisor has franchisees in a particular state does not subject it to that state's jurisdiction. Oddi v. Mariner-Denver, Inc., 461 F.Supp. 306, 310 (D.C.Ind.1978).
Illinois courts do recognize circumstances under which a subsidiary's jurisdictional contact can be carried over to the parent, but these are only in cases where either evidence has been provided that justified piercing the corporate veil, or when plaintiff shows that the subsidiary acted as the parent's agent. Salon Group, Inc., v. Salberg, 156 F.Supp.2d 872, 876 (N.D.Ill.2001). This second scenario, where the subsidiary acts as the parent's agent, applies only in the narrow instances where the parent is exercising greater than normal control of the subsidiary, or where the subsidiary has become an "empty shell". Purdue Research Foundation v. Sanofi-Synthelabo S.A., 338 F.3d 773, 788 (7th Cir.2003). Plaintiff has made no specific claim that Sheraton LLC exercises a greater than average degree of control over its franchises, and the affidavit and deposition testimony of Dojlidko confirm that Sheraton LLC does not conduct any business in or possess any contacts with Illinois besides receiving franchise fees. Because plaintiff fails to offer evidence that a high degree of control exists, his argument fails.
B. Fair Play and Substantial Justice
In addition, a complete due process analysis also requires inquiry into whether the exercise of jurisdiction will offend "traditional notions of fair play and substantial justice." Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 105, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Among the factors to be considered in making this inquiry are the burden on the defendant, the interests of the forum state, the plaintiffs interest in obtaining relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of several states in furthering fundamental social policies. Id. Of all these factors, however, the burden on the defendant forced to litigate in a foreign forum is still the primary concern. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). While the plaintiff's interest in obtaining relief is frustrated by defendants' lack of minimum contacts with Illinois, it does not leave them without remedy, as there are other states with which Sheraton LLC clearly has the minimum contacts necessary for the exercise of jurisdiction.[5] Moreover, the moderate difficulty plaintiff may face in finding another forum does not outweigh the fundamental unfairness of bringing Sheraton LLC into a state with which it has so few ties. It therefore cannot be said that in finding a lack of personal jurisdiction, this court has offended traditional notions of fair play and substantial justice.
Plaintiff has failed to make a prima facie showing of personal jurisdiction over Sheraton LLC. Sheraton LLC's licensing of several franchises in Illinois does not qualify as "systematic and continuous," nor is it a sufficient enough connection to satisfy "traditional notions of fair play and substantial justice." It does not give Sheraton LLC proper warning that it may be haled into Illinois courts[6].
CONCLUSION
For the foregoing reasons, defendants' motions to dismiss for lack of personal jurisdiction are granted.
NOTES
[1] Dojlidko is also the vice-president of Sheraton LLC, and submitted an affidavit in support of its motion.
[2] It appears from the deposition of Dojlidko that ITT Sheraton actually changed its name to "The Sheraton Corporation" in the late 1990s, after it was purchased by Starwood (Dojlidko dep., p. 12). However, we use the ITT Sheraton name because that is what plaintiff uses, and to avoid confusion.
[3] Furthermore, Dojlidko testified that the corporate change was part of an internal restructuring of Starwood for tax purposes, and in preparation for a transaction involving the sale of hotels to another company (Dojlidko dep. at 27).
[4] It is entirely possible that this corporate change was one in which the purchaser is merely a continuation of the seller, causing it to fall under the third exception. In re-incorporating as Sheraton LLC, it does not seem as if any significant changes to the corporate infrastructure have taken place, or that the company's management has changed (Dojlidko dep., pp. 11-12, 27). However, because plaintiff does not raise this argument, nor make such an allegation in his complaint, we do not address it.
[5] Though a problem may still remain as to Sheraton LLC's relationship to plaintiffs injury, implicating both the notice requirement we discussed in our previous opinion and issues of ultimate liability.
[6] Since we hold that we do not possess personal jurisdiction over the Sheraton International or Sheraton LLC, we need not delve into the defendants' second claim, that plaintiffs Second Amended Complaint is timebarred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563414/ | 960 A.2d 1083 (2008)
111 Conn.App. 636
Harry EBERHART et al.
v.
MEADOW HAVEN, INC.
No. 29173.
Appellate Court of Connecticut.
Argued September 24, 2008.
Decided December 16, 2008.
*1085 Genevieve P. Salvatore, for the appellant (defendant).
Vincent T. McManus, Jr., for the appellees (plaintiffs).
DiPENTIMA, McLACHLAN and LAVINE, Js.
DiPENTIMA, J.
The defendant, Meadow Haven, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiffs, Harry Eberhart and Adele Eberhart. On appeal, the defendant claims that the court improperly (1) concluded that the plaintiffs had established legal title to the disputed property by adverse possession, (2) shifted the burden of proof to the defendant by resolving the issue of consent as a defense raised by the defendant rather than as an element of adverse possession to be proven by the plaintiffs by clear and convincing evidence and (3) failed to conclude that a grantor-grantee relationship between the parties defeated the plaintiffs' claim of adverse possession. We disagree and, accordingly, affirm the judgment of the trial court.
This case involves a dispute over the ownership of land under a driveway. The defendant conveyed a parcel of land described as lot seven to the plaintiffs by warranty deed dated October 5, 1966. Lot seven is located in a subdivision of approximately thirty lots in Meriden. It sits on the corner of Sandy Lane, a public way, and Shaker Court, an unpaved right-of-way. After the conveyance, the plaintiffs moved into the single-family residential house located on lot seven and began using the appurtenant driveway, installed by the defendant, which connected the house with Sandy Lane. There are two areas in dispute. The first, described as parcel B, is comprised of a portion of the driveway that is not located on lot seven but runs for a significant distance on the abutting piece of land, between lot seven and Shaker Court. The second, described as parcel D, also is comprised of a portion of the driveway that is not located on lot seven but runs onto Shaker Court. The defendant is the title owner of both parcel B and parcel D.
The plaintiffs' amended complaint, dated February 21, 2006, sought a declaratory judgment that they are the legal owners of parcels B and D by operation of the doctrine of adverse possession. In its answer, the defendant denied that the plaintiffs had established the elements of adverse possession and asserted a special defense, stating that to the extent that the plaintiffs used or occupied the land, particularly parcel D, it was done with a license from or the consent of the defendant. Following a two day trial to the court, the court issued a memorandum of decision in which it found that the plaintiffs had presented clear and convincing evidence in support of their claim of ownership by adverse possession *1086 and rendered judgment declaring the plaintiffs to be the legal owners of parcels B and D. The court also found against the defendant on its special defense, stating in its memorandum that no license to use the property had existed. This appeal followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly concluded that the plaintiffs had established legal title to the disputed property by adverse possession. Specifically, the defendant argues that the court improperly determined that the plaintiffs' use of the disputed property was exclusive, under a claim of right and without the consent of the defendant, and that the plaintiffs adversely possessed the disputed property for the requisite time period of fifteen years. The defendant also argues that the court's failure to find that the plaintiffs "ousted" the defendant for the requisite time period is fatal to a finding of adverse possession and that the plaintiffs did not present clear and convincing evidence of each of the elements of adverse possession sufficient to establish their claim. We address each of the defendant's claims in turn.
The following additional facts are relevant. In 1967, one year after the plaintiffs purchased lot seven from the defendant, a city worker informed them that the driveway connecting their house with Sandy Lane was not located on lot seven but, instead, was comprised of a substantial portion of the abutting lot, parcel B. The plaintiffs informed Joseph Carabetta, a principal in the defendant corporation, of the problem, and he assured them that he would "take care of it." Carabetta commissioned a survey of the land and subsequently resubdivided parcel B with the intention of moving the plaintiffs' property line to encompass the driveway. A deed reflecting the enlargement of lot seven as a result of the resubdivision was not filed in the land records, and, therefore, the revised subdivision never went into effect. The plaintiffs relied on Carabetta's representation, made on two separate occasions, that the problem had been fixed. The plaintiffs had exclusive use of the driveway as the sole means of ingress and egress between their garage and Sandy Lane. Over time, the plaintiffs planted and maintained a hedge that runs the length of the disputed area of the driveway, installed and maintained light posts and planters and maintained the driveway and lawn.
We first identify our standard of review and the applicable legal principles. "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner." (Internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn.App. 361, 364-65, 952 A.2d 73 (2008); see also General Statutes § 52-575. "A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof.... [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution.... [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.... The burden of proof is on the party claiming adverse possession." (Citation *1087 omitted; internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 767, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007).
"Despite [this] exacting standard, our scope of review is limited.... Because adverse possession is a question of fact for the trier ... the court's findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... We cannot retry the facts or pass on the credibility of the witnesses.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... A trial court's findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court...." (Citation omitted; internal quotation marks omitted.) Mulle v. McCauley, 102 Conn.App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). With these principles in mind, we turn to the defendant's claims on appeal.
The defendant contends that the court improperly determined that the plaintiffs' use of the disputed property was exclusive. In support of its argument, the defendant relies primarily on the fact that there is a telephone pole located on parcel D, in the middle of the hedge installed and maintained by the plaintiffs. We are not persuaded.
Our Supreme Court has explained that "[i]n general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others.... Thus, the claimant's possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use.... It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question." (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 502-503, 442 A.2d 911 (1982); Mulle v. McCauley, supra, 102 Conn.App. at 817, 927 A.2d 921; 16 R. Powell, Real Property § 91.06 (2007).
The record reflects, and the court found, that from the time the plaintiffs purchased lot seven in 1966 and began using the disputed property, they (1) planted and maintained hedges and trees, (2) maintained the lawn, (3) installed lamp posts and a flag pole and (4) used the driveway exclusively, with the exception of invited guests. These activities are consistent with open acts of ownership by the plaintiffs.
We are not persuaded by the defendant's argument that the placement of a telephone pole on the disputed property is fatal to establishing exclusivity. As we noted previously, "the claimant's possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use." (Emphasis added; internal quotation marks omitted.) Roche v. Fairfield, supra, 186 Conn. at 502, 442 A.2d 911; see also Boccanfuso v. Conner, 89 Conn.App. 260, 289 n. 23, 873 A.2d 208 ("[i]n adverse-possession doctrine, the exclusivity requirement describes the behavior of an ordinary possessor and serves to give notice to the owner" [internal quotation marks omitted]), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). The placement of a public utility pole on the disputed property *1088 does not negate more than fifteen years of behavior, on the part of the plaintiffs, that the owner of property ordinarily undertakes. After reviewing the record, we conclude that the court's findings were logically and legally consistent with the evidence before the court, and therefore not clearly erroneous.
The defendant next claims that the court improperly determined that the plaintiffs' use of the disputed property was under a claim of right because there is no evidence to support such a finding. The defendant finds fault with the court's reasoning in its memorandum of decision that "[w]hen the [plaintiffs] purchased their house, it was in full accord with a claim to the driveway as their own with the intention to hold it for the period that they owned the house." We are not persuaded that this finding was clearly erroneous.
"Possession under a claim of right means that the entry by the claimant must be in accordance with a claim to the property as the claimant's own with the intent to hold it for the entire statutory period without interruption." 16 R. Powell, supra, § 91.05[4]. Here, the court found that the plaintiffs had used the property as their own. Evidence supporting this finding included testimony that the plaintiffs maintained a manicured lawn and installed lights and a flag pole, as well as trees and shrubbery. The plaintiffs planted and maintained hedges, shoveled snow from the driveway and believed that the driveway was part of the purchased lot. The court's conclusion that the plaintiffs established that their use of the disputed property was under a claim of right was not clearly erroneous, as it is adequately supported by the evidence.
The defendant next claims that the court improperly found that the plaintiffs used the disputed property without the consent of the defendant. In support of its argument, the defendant states that at trial, it "was unequivocal that [the] plaintiffs' use of the [d]isputed [a]rea was solely pursuant to [the] defendant's permission...." We disagree.
At trial, Harry Eberhart testified that he never received Carabetta's permission or consent to use the driveway. In contrast, Carabetta testified that there was a consensual agreement that the plaintiffs could use the disputed property. Here, the court was faced with conflicting evidence. It is well established that evaluating witness' credibility is the exclusive function of the trier of fact. Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008). "Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Id. Accordingly, in choosing to credit the testimony of Harry Eberhart over that of Carabetta, the court acted well within its province. The defendant, in citing Carabetta's testimony, essentially urges us to reevaluate the conflicting testimony, which we cannot do. Boccanfuso v. Conner, supra, 89 Conn.App. at 292, 873 A.2d 208. Therefore, we conclude that the court's finding was not clearly erroneous.
The defendant next claims that the court did not find that the plaintiffs "ousted" the defendant from possession of the disputed property and that such a finding is a necessary element of a claim of adverse possession. The defendant argues, without citation to legal authority or analysis, that "[i]n order to meet the first *1089 requirement for adverse possession, it must be demonstrated, and found by the court, that the purported adverse possessor `ousted' the true owner from possession." The defendant further states that "based on the evidence adduced at trial, [the court] could make no such finding." We disagree.
Our Supreme Court has defined ouster clearly. "By ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title.... As otherwise stated: [a]n entry ... on the land of another, is an ouster of the legal possession arising from the title ... if made under claim and color of right ... otherwise it is a mere trespass.... The intention guides the entry, and fixes its character." (Internal quotation marks omitted.) Lucas v. Crofoot, 95 Conn. 619, 623-24, 112 A. 165 (1921); see also Boccanfuso v. Green, 91 Conn.App. 296, 313-14, 880 A.2d 889 (2005); Black's Law Dictionary (7th Ed.1999) (ouster defined as "[t]he wrongful dispossession or exclusion of someone ... from property").
"Again, the question of whether the elements of an adverse possession claim have been established by clear and convincing evidence is a factual one subject to the clearly erroneous standard of review." (Internal quotation marks omitted.) Mulle v. McCauley, supra, 102 Conn.App. at 817, 927 A.2d 921. In its memorandum of decision, the court noted that the plaintiffs exclusively possessed the disputed property and used the property as their own. The court further found that the plaintiffs possessed the disputed property under a claim of right. Although the court did not make a specific finding using the term "ouster," the court did find that the plaintiffs had "possession [of the disputed property] attended with such circumstances as to evince a claim of exclusive right and title." (Internal quotation marks omitted.) Lucas v. Crofoot, supra, 95 Conn. at 624, 112 A. 165. Accordingly, we reject the defendant's claim.
Similarly, the defendant claims that the court improperly found that the plaintiffs were in possession of the disputed property for the requisite fifteen years. We disagree.
As discussed previously, the court's finding that the plaintiffs used the disputed property as their own beginning in 1966 was amply supported by the testimony before the court. As almost forty years had passed between 1966 and the time of litigation, the fifteen year requirement for adverse possession was easily satisfied in this case. See General Statutes § 52-575 (fifteen year statute of limitations for claim of adverse possession). The defendant urges us to conclude that the plaintiffs acknowledged the defendant's ownership of the disputed property, and, as a result, their use was not hostile and therefore insufficient to commence the statute of limitations. As the court found, however, the plaintiffs learned that the driveway was not located on lot seven but were told by the defendant that a resubdivision of the adjacent lot had "fixed the problem." "[A] claimant's mistaken belief that he owned the property at issue is immaterial in an action for title by adverse possession, as long as the other elements of adverse possession have been established." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 653, 905 A.2d 1256 (2006); see also 16 R. Powell, supra, § 91.05[3] (majority rule is that mistaken belief as to boundary does not bar claim of right or negate essential element of hostility). Thus, the court's finding that the plaintiffs adversely possessed the disputed property was not clearly erroneous.
*1090 The defendant further argues that the plaintiffs failed to establish each element of adverse possession by clear and convincing evidence. In light of our analysis of the defendant's other claims, we disagree. The court did not err in finding each of the elements of adverse possession by clear and convincing evidence.
II
The defendant's second claim is that the court improperly shifted the burden of proof to the defendant by resolving the issue of consent as a defense raised by the defendant rather than as an element of adverse possession to be proven by the plaintiffs by clear and convincing evidence.
The following additional procedural history is relevant to the resolution of the defendant's claim. In its answer to the plaintiffs' complaint, the defendant alleged a special defense in which it claimed that "to the extent that [the] plaintiffs have used or occupied a portion of the said parcels, particularly parcel `D', they have done so by way of license and/or consent of [the] defendant." In its claim that the court improperly required the defendant to prove that consent existed, the defendant appears to rely on the fact that "[d]efense of license/consent" is addressed in a separate subsection of the memorandum of decision.
"The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment.... As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it.... Effect must be given to that which is clearly implied as well as to that which is expressed." (Internal quotation marks omitted.) Moasser v. Becker, 107 Conn.App. 130, 135, 946 A.2d 230 (2008); see Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn.App. 759, 773-74, 890 A.2d 645 (2006). In its memorandum of decision, the court listed use "under a claim of right without the owner's consent" as the final element of adverse possession and noted that "[t]he standard of proof required in a claim for adverse possession is clear and convincing." In concluding its memorandum, the court wrote: "For the foregoing reasons the court finds that the plaintiffs ... have presented clear and convincing evidence supporting their claim for ownership by adverse possession." In construing the judgment, we conclude that the court did not improperly shift the burden of proof on the issue of consent to the defendant but, rather, correctly placed it squarely on the plaintiffs.
III
The defendant's third and final claim is that the court improperly failed to conclude that a grantor-grantee relationship between the parties defeated the plaintiffs' claim of adverse possession. Specifically, the defendant argues that under this court's decision in Woodhouse v. McKee, 90 Conn.App. 662, 879 A.2d 486 (2005), the plaintiffs were required to make an "explicit disclaimer of the subservient relation of a grantor to a grantee...." (Internal quotation marks omitted.) Id., at 674, 879 A.2d 486. We disagree.
As noted previously, "[b]ecause adverse possession is a question of fact for the trier... the court's findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole." (Internal quotation marks omitted.) Porter v. Morrill, 108 Conn.App. 652, 666, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).
*1091 In Woodhouse v. McKee, supra, 90 Conn.App. at 676, 879 A.2d 486, this court determined that the trial court improperly had found that the plaintiffs had obtained the disputed property by adverse possession because the court did not "consider the relevance of the initial grantor-grantee or parent-child familial use of the disputed property." In its discussion of the grantor-grantee aspect of the parties' relationship, this court, quoting 3 Am.Jur.2d 124, Adverse Possession § 195 (2002), stated: "[A] grantor may, by adverse possession, acquire title to land which the grantor has conveyed ... [but the] hostility of the grantor's holding must be brought to the grantee's attention in such manner as to put the latter on notice of the grantor's intention to occupy the property in the grantor's own right. Nothing short of an explicit disclaimer of the subservient relation of a grantor to a grantee and a notorious assertion of right in the grantor will be sufficient to change the character of the grantor's possession and render it adverse to the grantee." (Internal quotation marks omitted.) Woodhouse v. McKee, supra, at 673-74, 879 A.2d 486.
In the present matter, the disputed parcels were never transferred by the defendant to the plaintiffs. Indeed, the fact that the driveway, which comprises much of the disputed parcels, was not located on the land the plaintiffs had purchased from the defendant formed the impetus for this litigation. Because the parties do not share a grantor-grantee relationship as to the disputed parcels, the analysis in Woodhouse is inapplicable here. Additionally, in Woodhouse, the plaintiff-grantor claimed ownership of property it had previously conveyed to the defendant-grantee. Id., at 673, 879 A.2d 486 ("a grantor may, by adverse possession, acquire title to land which the grantor has conveyed" [emphasis added; internal quotation marks omitted]). Here, in contrast, the plaintiffs were the grantees of land, although as noted previously, that land did not include the disputed area. The present matter does not involve a circumstance, where, as in Woodhouse, a grantor was seeking to reclaim possession by adverse possession to property previously conveyed to a grantee. Accordingly, the defendant's third claim fails.
The judgment is affirmed.
In this opinion the other judges concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/589695/ | 973 F.2d 339
UNITED STATES of America, Plaintiff-Appellee,v.William H. KENNY, a/k/a Reverend Kenny, Defendant-Appellant.
No. 92-5083.
United States Court of Appeals,Fourth Circuit.
Argued July 9, 1992.Decided Aug. 19, 1992.
Frank Salvato, Alexandria, Va., argued for defendant-appellant.
Rita Genetti Calvin, Sp. Asst. U.S. Atty., Office of the U.S. Atty., Alexandria, Va., argued (Richard Cullen, U.S. Atty. and Mark J. Hulkower, Asst. U.S. Atty., on brief), for plaintiff-appellee.
Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges.
OPINION
HAMILTON, Circuit Judge:
1
William H. Kenny appeals his conviction for obstruction of justice for attempting to cause and induce a grand jury witness to provide false information. 18 U.S.C. § 1503. Four issues are raised on appeal: (1) whether 18 U.S.C. § 1503 applies to Kenny's alleged conduct, (2) whether there was sufficient evidence to sustain his § 1503 conviction, (3) whether the admission of certain evidence under Fed.R.Evid. 404(b) constitutes reversible error, and (4) whether the district court properly charged the jury on the issue of intent. Finding no reversible error, we affirm the judgment of conviction.
2
* In mid-December 1990, the credentials, service revolver, and two personal American Express Travelers checks of a Federal Bureau of Investigation (FBI) Agent were stolen from the Agent's personal vehicle in Arlington, Virginia. In January 1991, the two checks, endorsed with the name "Kenny," were deposited in the bank account of Rufus and Delores Stancil of Washington, D.C. FBI Agent Alan Malinchak, who was assigned the case, contacted Stancil at his liquor store and inquired as to how he obtained the travelers checks. Stancil furnished information indicating he received the checks from William H. Kenny. Stancil agreed to compare the signature on the stolen checks to signatures which he kept on file at his business. As a result, he also provided Agent Malinchak with fifteen personal checks, written by people from various states, made payable to the Washington National Cathedral. Each bore Kenny's personal endorsement.
3
Agent Malinchak then contacted Kenny, who admitted that he accepted the travelers checks and claimed that a "Lawrence Williams" had negotiated the checks for items at his thrift store. Kenny claimed that he kept receipts for all sales in his shop, but was unable to produce one for Williams' transactions. At Kenny's prompting, Sheila Wormley, his clerk, confirmed that Williams negotiated the travelers checks and that she accepted them. Kenny described Williams as a very dark-skinned man, about 5'7" to 5'9" in height, weighing 200 pounds, and wearing a mustache. Kenny added that Williams was a crack user and drove a red and white Lincoln or Cadillac with District of Columbia license plates. According to Kenny, Williams was a regular customer who usually appeared on Fridays or Saturdays. Agent Malinchak conducted surveillance of the thrift shop the following Friday, but despite Kenny's assurances, Williams failed to appear. Agent Malinchak then investigated persons with the name "Lawrence Williams" by reviewing driver's license records at the D.C. Department of Motor Vehicles. No person matching the description given by Kenny was found.
4
On June 24, 1991, Agent Malinchak interviewed Kenny again. Kenny claimed that Williams was in the store two days before, but that he now remembered that it was not Williams who negotiated the travelers checks. Instead, he stated that an individual he knew as "Bernard" negotiated the checks and that Bernard drove a red and white Cadillac or Lincoln with District of Columbia license plates DX36697. Upon investigation, the FBI discovered the license plates were stolen in April 1991. Subsequently, Kenny claimed that he had transposed two of the digits in the license plate number. The new number, however, was not on file with the D.C. Department of Motor Vehicles.
5
Kenny then told Agent Malinchak that Sheila Wormley had information, or could supply information, about Bernard. On June 26, Kenny and Agent Malinchak drove around the neighborhood, unsuccessfully searching for Bernard and his vehicle.
6
Agent Malinchak questioned Kenny as to how he obtained the Washington National Cathedral checks. Kenny explained that he had taken members of his congregation, along with some of their friends and relatives, on a tour of the Cathedral. According to Agent Malinchak, Kenny stated that in appreciation for the tour, these people provided him with various checks for whatever they could afford. Kenny alleged that the checks were made payable to the Washington National Cathedral since they were in payment for his tour service of the Cathedral.
7
Thereafter, the FBI concluded that Kenny was obstructing its investigation and subpoenaed Kenny and Wormley to appear before a grand jury on August 5, 1991. When Malinchak served Wormley, she informed him that Kenny had given her a piece of paper with Bernard's license plate number on it. She testified at trial that Kenny wanted her to represent to Agent Malinchak that she herself had gotten the license plate number. Following service of the subpoenas, Wormley stated that Kenny repeatedly urged her to give Agent Malinchak the piece of paper and instructed her as to what to say before the grand jury. He allegedly promised to pay Wormley the $175 he owed her if she would tell the grand jury what he wanted her to say.
8
On August 5, 1991, both Kenny and Wormley appeared before the grand jury. Wormley testified before Kenny and informed the grand jury that Kenny approached her and discussed with her what she should say before the grand jury.
9
Kenny was subsequently charged in a criminal complaint with obstruction of justice under 18 U.S.C. § 1503 for attempting to cause and induce a grand jury witness to withhold information and to provide false information. Following grand jury testimony on that charge, he was indicted under 18 U.S.C. § 1503 (Count I) for obstruction of justice and 18 U.S.C. § 1512 (Count II) for tampering with a witness.
10
At trial, Wormley testified, over defense counsel's objection, that when she returned home from giving her grand jury testimony, her apartment had been burglarized. The only thing she discerned missing was the piece of paper Kenny had given her with the license number written on it. She conceded, however, that she could not be sure that the slip of paper was stolen, that she did not know where she put it, and effectively that she could have lost it.
11
During Agent Malinchak's testimony, the district court admitted as evidence of motive under Fed.R.Evid. 404(b), the checks payable to the Washington National Cathedral which Kenny had negotiated. Collen Meehan, business manager of the Washington National Cathedral, testified that some of the makers of the checks were regular contributors to the Cathedral.
12
Louis Thomas-El, a friend of Kenny's, testified at trial that Kenny told him that he might earn as much as $300 if he testified that the defendant knew nothing about the stolen travelers checks--a subject which Thomas-El acknowledged he knew nothing about.
13
Following the close of testimony, the district court gave the following charge to the jury on the issue of intent:
14
The government need not prove that the defendant's only, or even main purpose was to obstruct the due administration of justice. It is sufficient if the government proves beyond a reasonable doubt the defendant intentionally undertook an act, or endeavored to effect an arrangement the reasonable, foreseeable and natural consequences of which would be to obstruct justice.
15
(Transcript, Joint Appendix (J.A.) 161).
16
Subsequently, the jury found Kenny guilty under the first count for obstruction of justice under 18 U.S.C. § 1503, and not guilty under the second count for tampering with a witness under 18 U.S.C. § 1512. This appeal followed.II
17
As noted, four issues are raised on appeal. Each is addressed in turn.
18
* Kenny first argues that 18 U.S.C. § 1503 does not criminalize the corrupt persuasion of a grand jury witness, but instead such conduct falls solely under 18 U.S.C. § 1512. Kenny bases his argument on Congress' enactment of the Victim and Witness Protection Act in 1982. Pub.L. No. 97-291 (1982), 96 Stat. 1248 (codified as amended in scattered sections of 26 U.S.C.). By enacting the new statute, Congress removed from 18 U.S.C. § 1503 references to witnesses and enacted a new section, 18 U.S.C. § 1512, which specifically addressed witnesses. As a result of the 1982 Act, and a later amendment, 18 U.S.C. § 1503 reads as follows:
19
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
20
Id. (emphasis added). Section 1512 reads:
21
Tampering with a witness, victim, or an informant
22
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
23
(1) influence, delay, or prevent the testimony of any person in an official proceeding; ...
24
or attempts to do so, shall be fined not more than $25,000 or imprisoned not more than one year, or both.
25
Id.
26
Kenny argues that these changes demonstrate congressional intent to devote 18 U.S.C. § 1503 exclusively to the protection of jurors and court officers and 18 U.S.C. § 1512 to the protection of witnesses. In United States v. Hernandez, 730 F.2d 895 (2d. Cir.1984), the Second Circuit adopted this line of reasoning, finding that "Congress intended that intimidation and harassment of witnesses should henceforth be prosecuted under § 1512 and no longer fall under § 1503." Id. at 899. Based on this finding, the Second Circuit held that a conviction for witness tampering under 18 U.S.C. § 1503 must be reversed.
27
We do not agree. Perhaps the most fundamental rule of statutory construction is that "the meaning of a statute must, in the first instance, be sought in the language in which the act is framed." Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). The omnibus clause of 18 U.S.C. § 1503, emphasized above, clearly encompasses acts "that obstruct, or impede, the due administration of justice." 18 U.S.C. § 1503. The fact that § 1512 more specifically addresses improper conduct involving a witness does not preclude application of § 1503. The existence of a more narrowly tailored statute does not necessarily prevent prosecution under a broader statute, so long as the defendant is not punished under both statutes for the same conduct. See United States v. Grenagle, 588 F.2d 87 (4th Cir.1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1260, 59 L.Ed.2d 482 (1979); United States v. Ogden, 703 F.2d 629 (1st Cir.1983).1
28
This interpretation is consistent with the treatment of 18 U.S.C. § 1503 by other circuits. In particular, the Fifth Circuit noted that:
29
In 1982, Congress amended Section 1503 (but not its omnibus clause) and removed the express reference to witnesses, enacting at the same time 18 U.S.C. § 1512 expressly addressing threats or force against or intimidation of witnesses (and certain others). However, we have held that Congress did not thereby intend that urging or advising a witness to testify falsely be exempt from prosecution under the final or omnibus clause of section 1503.
30
United States v. Williams, 874 F.2d 968 (5th Cir.1989). Accord United States v. Kulczyk, 931 F.2d 542 (9th Cir.1991); United States v. Brown, 948 F.2d 1076 (8th Cir.1991); United States v. Branch, 850 F.2d 1080 (5th Cir.1988); United States v. Marrapese, 826 F.2d 145 (1st Cir.1987).
31
Kenny argues that at least some of these cases can be distinguished on the grounds that they did not consider the 1988 amendment of 18 U.S.C. § 1512 to include corrupt persuasion, as a clear indication that 18 U.S.C. § 1512 was the sole statute covering the corruption of witnesses. See United States v. Masterpol, 940 F.2d 760 (2d Cir.1991). This amendment was passed to cover a perceived "hole" in the coverage of 18 U.S.C. § 1512 for acts which did not involve coercive conduct. Congress added the language "or corruptly persuades" to cover noncoercive witness tampering. See Id. We reject this distinction; the 1988 amendment does not change the plain language of the omnibus clause of 18 U.S.C. § 1503 and does not, therefore, preclude its general application to acts that obstruct justice. Accordingly, Kenny's obstruction of justice conviction under 18 U.S.C. § 1503 was appropriate.
B
32
Kenny next challenges the sufficiency of the evidence supporting his conviction. In such challenges, we view the evidence in the light most favorable to the prosecution and uphold the verdict if substantial evidence supports it. United States v. Jones, 735 F.2d 785, 790 (4th Cir.), cert. denied, 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984). Kenny's contention is that the government did not establish that he acted with corrupt intent to influence a potential grand jury witness because Wormley expressly stated that Kenny did not tell her to lie or testify untruthfully, but rather only told her what to say to the grand jury. There was no evidence, he contends, that what he sought to have Wormley say was untrue. We cannot agree with this construction of the testimony. Wormley clearly stated that Kenny attempted to get her to falsely relate that she was with Bernard and obtained his license number. Wormley stated:
33
[Kenny] wanted me to give [Agent Malinchak] that number and tell him I was with the guy and that I got this, which I did not.
34
Wormley testified that she saw Kenny after she had been served the subpoena and that he attempted to instruct her as to what to say.
35
[Kenny] said that when I go to court, this is what I should say, and I said No, that's okay. I don't want you to tell me what to say. I want to tell everything to the best of my ability, to the best of my knowledge. He wanted to tell me, instruct me in what to say.
36
(Transcript J.A. 82). Louis Thomas-El also testified that Kenny approached him concerning his testimony and told him that he could be paid for testifying that Kenny knew nothing of the travelers checks when in fact, Thomas-El admitted he had no knowledge of the travelers checks. In light of this testimony, there was substantial evidence to support Kenny's conviction.
C
37
Kenny next challenges the admission of evidence of a break-in at Wormley's residence and the Washington National Cathedral checks. The government offered the evidence of the break-in as admissible evidence under Fed.R.Evid. 404(b). Agent Malinchak testified that Wormley's apartment appeared to have been broken into shortly after she testified before the grand jury. Wormley later stated that nothing was taken except the piece of paper Kenny gave her with the license number written on it.
38
This evidence was not admissible under Rule 404(b). The government offered no evidence linking Kenny to the break-in. There must be proof such that a reasonable juror could find that the defendant committed the prior act by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). "In the Rule 404(b) context, similar act evidence is only relevant if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Id. at 689, 108 S.Ct. at 1501. The evidence was relevant and properly admissible, however, to explain the absence of the piece of paper at trial. Fed.R.Evid. 402. It was not error, therefore, to allow testimony concerning the break-in.
39
Kenny also challenges the admission of the Washington National Cathedral checks, under Rule 404(b), as motive or method of operation for his obstruction of justice. The evidence was not properly admissible as proof of motive because Kenny could neither be indicted nor tried in district court for theft of the Washington National Cathedral checks. In addition, there was no showing in the record that the checks were stolen, that the defendant was not authorized to endorse them or that any of the makers complained about the issuance of the checks or Kenny's endorsement on the reverse side, and thus that Rule 404(b) even applied. As such, it was an abuse of discretion for the district court to admit this evidence.
40
We conclude, however, that the error was harmless. "[A]ny error in admission or exclusion is subject to the harmless error test: 'whether it is probable that the error could have affected the verdict reached by the particular jury in the particular circumstances of the trial.' " United States v. Morison, 844 F.2d 1057, 1078 (4th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 247 (1988) (quoting United States v. Davis, 657 F.2d 637, 640 (4th Cir.1981)). In light of Wormley and Thomas-El's2 testimony, we conclude that it is not probable that the admission of the Washington National Cathedral checks affected the verdict reached by the jury given the particular circumstances of this trial. Morison, 844 F.2d at 1078.
D
41
Kenny finally argues that the district court's charge on intent improperly instructed the jury that they could infer that the defendant intended all of the natural consequences of his knowingly committed acts, and effectively, that the government need not prove intent to obstruct justice. In United States v. Neiswender, 590 F.2d 1269 (4th Cir.1979), we examined this issue and stated:
42
We see no need to undertake an extended excursion into the subtleties of specific intent. In our view, the defendant need only have had knowledge or notice that success in his fraud would have likely resulted in an obstruction of justice.
43
Id. at 1273. The instruction given by the district court is substantially a reiteration of our consideration of this issue in Neiswender and, therefore, was not erroneous.
III
44
After a thorough review of the record and the controlling authorities, the court finds no reversible error in the defendant's conviction.
45
AFFIRMED.
1
This reasoning has been applied in a similar context construing a prosecution for interstate transportation of a stolen aircraft or automobile under 18 U.S.C. § 2314 (prohibiting interstate transportation of stolen goods or merchandise) as opposed to 18 U.S.C. § 2312 (prohibiting interstate transportation of a stolen aircraft or automobile). The Fifth Circuit in United States v. Parziale, 947 F.2d 123, 127 (5th Cir.1991) held that the government was not precluded from proceeding under the broader § 2314 simply because of the existence of a narrower statute. See also Grenagle, 588 F.2d at 88 (sanctioning a prosecution for the interstate transportation of a stolen automobile under either § 2314 or § 2312)
2
We find the argument that Thomas-El's testimony was inadmissible to be without merit | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/231303/ | 202 F.2d 817
PETSELv.CHICAGO, B. & Q. R. CO.
No. 14602.
United States Court of Appeals Eighth Circuit.
March 17, 1953.
Rehearing Denied April 8, 1953.
William M. Tucker and D. C. Nolan, Iowa City, Iowa, for appellant.
John Hale, Burlington, Iowa (J. C. Pryor and Clark, Pryor, Hale, Plock & Riley, Burlington, Iowa, on the brief), for appellee.
Before THOMAS, JOHNSEN and RIDDICK, Circuit Judges.
JOHNSEN, Circuit Judge.
1
The personal representative of a decedent sought to recover damages for his death, which had resulted from a collision between a truck and a train at a railroad crossing in the State of Illinois. The suit was instituted in an Iowa state court and was removed by the Railroad to the federal court on diversity. The case is here on an appeal by the personal representative from a dismissal of the action by the trial court after a denial of her request for leave to make an amendment to the petition. The request for leave to amend was made at the commencement of the trial.
2
The basis on which the court denied the amendment and made dismissal of the action was that the petition as filed did not state a claim on which relief could be granted under Illinois law, and that it was not capable at the time of the requested amendment of being made to state such a claim, since under Illinois law no right to make legal assertion of the facts which plaintiff desired to add to the petition any longer existed in the situation. The court was of the opinion that assertion or showing in the petition of the facts covered by the amendment (that there was a surviving widow and next of kin, and that they had suffered pecuniary loss by reason of the decedent's death) had to be made within one year from the decedent's death and that, if the existence of these facts was not made to appear in the petition before that time, the liability for the death would have become extinguished.
3
The question to be tested therefore is whether the trial court was in error in its appraisal of Illinois law as making such an amendment attempt after a year from the death a matter of more than procedural consequence and as giving it the significance of an attempted substantive extension of the liability created by the statute. Generally speaking, the amendment of a pleading to supply or substitute facts or legal theory in support of a claim attempted to be asserted constitutes a mere procedural matter. But the question can of course be one of substantive aspect, if the right to assert the facts or theory sought to be injected is itself one of special legal condition, as the trial court regarded the situation here, and the attempted amendment cannot be brought within the condition under which alone the right to make the assertion exists.
4
The statutes of Illinois provide the following right of recovery for a wrongful death: "Every such action shall be brought by and in the names of the personal representatives of such deceased person, and * * * the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of $15,000. * * * Provided, that every such action shall be commenced within one year after the death of such person. * * *" Ill. Rev.St.1949, c. 70, § 2.1
5
The Illinois courts have construed this provision as containing four requirements or conditions as a basis for any rights under it. (1) The action must be brought within one year after the death. (2) It is entitled to be instituted only by and in the name of the decedent's personal representative. (3) The decedent must have left a surviving widow or next of kin, for whose benefit the action is brought. (4) The persons for whose benefit the action is brought must have suffered a pecuniary loss by reason of the death. And the cases further uniformly seem to hold that no recovery may be had or will be permitted to stand, unless the plaintiff, either initially or by apt amendment, has made the existence of these four requirements or conditions a matter of assertion or demonstration in his pleading.
6
In Hartray v. Chicago Railways Co., 290 Ill. 85, 124 N.E. 849, 850, the declaration did not show that the action had been brought within one year after the death and leave to amend the declaration to show that fact, after a verdict for the plaintiff, was denied on appeal by the Illinois Supreme Court. The one year period allowed by the statute for the bringing of an action had by that time expired. The judgment in favor of the plaintiff was reversed. The court's opinion said that the statute conferred "a peculiar right which, if not exercised, ceases to exist by its own limitation" and that, since "the cause of action exists subject to the limitation, a declaration must allege or state facts showing that the action is brought within the time prescribed by the statute."
7
In North Pier Terminal Co. v. Hoskins Coal & Dock Corp., 402 Ill. 192, 83 N.E. 2d 748, the action had been brought, not in the name of a personal representative, but of an alleged subrogee on the basis of payment of benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., made on account of the decedent's death. The complaint did not state to whom the benefits were paid and was without allegation or showing that any surviving widow or next of kin existed, or that, if any persons of this class existed, they had suffered any pecuniary loss by reason of the death. The plaintiff recovered a judgment in the trial court, but this judgment was reversed by the Illinois Court of Appeals for insufficiency of the complaint, and judgment notwithstanding the verdict was ordered to be entered for the defendant, pursuant to a motion made in the trial court. The plaintiff appealed to the Illinois Supreme Court, seeking to have the order of the Court of Appeals set aside and the opportunity afforded it to make the necessary assertions by amendment of its complaint. The Supreme Court affirmed the Court of Appeals' disposition, 333 Ill.App. 440, 77 N.E.2d 546, and in the course of its opinion made the following observation: "Parenthetically, we note that even if the action had been brought by and in the name of the administrator it still would have failed to state a cause of action because it did not allege the survival of a widow or next of kin, or show that persons of this class had suffered pecuniary loss by reason of the death of decedent." 83 N.E.2d at page 751.
8
In Gustafson v. Consumers Sales Agency, Inc., 346 Ill.App. 493, 105 N.E.2d 557, it was held that the failure to allege in a complaint that there was a surviving widow or next of kin and that such persons had suffered pecuniary loss by reason of the death was such a fatal defect as to make the complaint incapable of supporting a judgment, and it further was declared that "objection to complaint on such grounds could be made for first time on appeal from judgment for plaintiff." The opinion says: "The authorities are uniform in this state that a complaint brought for wrongful death in the name of an administrator must allege the survival of a widow or next of kin, and show that the persons of this class have suffered pecuniary loss by reason of the death of the decedent." 105 N.E.2d at page 558. "The complaint in the instant case in not naming the next of kin of the decedent or stating any pecuniary loss suffered by the next of kin was fatally defective and did not state a cause of action." Id., 105 N.E.2d at page 560. A judgment recovered by the administrator of the decedent's estate was reversed on this basis, and the trial court was directed to enter a judgment notwithstanding the verdict in accordance with the defendant's motion.
9
We must accordingly accept as settled holding of the Illinois courts that there can be no recovery under the provision of the Wrongful Death Act set out above, either as a matter of award in the trial court or of sustainment on appeal, except upon a complaint making assertion or demonstration of the existence of the four requirements or conditions contained in the statute. This prescription, though precedural in its underlying basis, is by the legal absoluteness of its application made to have a substantive significance or consequence in relation to any claim of right under the death statute. Non-compliance automatically and inescapably operates to leave the door unopened to the recovery of benefits under the statute. And state prescriptions of procedure which do not exhaust their effect as mere procedural regulation but are made to have a substantive significance or consequence by a use of them to condition, limit or enlarge the recovery right as a matter of fixed and uniform result must necessarily, we think, be allowed to have that substantive significance or consequence in diversity cases brought into the federal courts. Cf. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 555, 69 S.Ct. 1221, 1230, 93 L.Ed. 1528; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520.
10
Plaintiff does not dispute the substantive significance or consequence of the holding of the Illinois courts that it is necessary to a recovery under the Wrongful Death Act that the complaint assert or demonstrate the existence of the four requirements or conditions contained in the statute. Instead, what she complains of is the trial court's refusal to permit her to make amendment of her petition to contain showing of these facts and of their having existed at the time of the commencement of the action, so as to enable her to bring the action within this prerequisite. Her contention is that the rule, which also previously had been laid down by the Illinois decisions, and which the trial court here followed, that, unless request to amend is made before the expiration of a year from the death, allegation as to the existence of any such non-asserted condition can not be added to the complaint, is no longer the law, in view of the Illinois Civil Practice Act of 1933, Ill.Rev.Stat. 1949, c. 110, § 125 et seq., and the expression of the Illinois Supreme Court with respect thereto, in Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N.E. 2d 838, and that the question of allowing such an amendment was therefore not, as the trial court thought, one of substantive aspect, but purely one of procedural consideration and regulation.
11
It must be conceded that, unless the Civil Practice Act of 1933 has changed the procedural prescription laid down by the Illinois courts, that assertion of the existence of all of the four requirements or conditions of the death statute must be made in plaintiff's pleading within one year after the death and that an amendment to show any one or more of such facts which have been omitted can not be made after that time, the judgment here must be affirmed, since this prescription, equally with that compelling pleading of the existence of the four requirements or conditions of the death statute as a basis for any recovery, would be one of substantive significance or consequence, in that it operates as a limitation upon the recovery right.
12
Section 46 of the Civil Practice Act of 1933, Ill.Rev.St.1949, c. 110, § 170 provides:
13
"(1) At any time before final judgment in a civil action, amendments may be allowed on such terms as are just and reasonable, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.
14
"(2) The cause of action, cross demand or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted when such condition precedent has in fact been performed, and for the purpose of preserving as aforesaid such cause of action, cross demand or defense set up in such amended pleading, and for such purpose only, any such amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended." (Emphasis ours.)
15
This language would seem on its face, in application to the recovery right granted by the death statute, to change the previous procedural prescription of the Illinois courts, with its substantive significance or consequence in application, that amendments to show the facts that the action was instituted within one year from the death, that plaintiff had the capacity of a personal representative when the action was instituted, that the decedent left a widow or next of kin surviving, and that such survivors had suffered pecuniary loss by reason of his death, can not be made and given relation back, unless the request to amend has been made within a year from the death. This prescription, however, as the Illinois cases make clear, has been merely one of judicial application or construction of the previous procedural codes in relation to an action under the death statute.
16
Thus, it was said in the early case of Quincy Coal Co. v. Hood, 77 Ill. 68, 71, that, "While the action itself is purely statutory, there is nothing in the act giving it which expressly or impliedly affects any of the established rules of pleading and evidence." And this was repeated, in the discussion of the effect of the Civil Practice Act of 1933 upon the court's previous holdings as to the amending of pleadings in an action under the death statute, in the case of Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 15 N.E.2d 838, 842, from which fuller quotation is made immediately following, where it was said: "The Injuries Act applies to the commencement of a suit and has no application to matters of pleading or procedure thereafter."2
17
The Metropolitan Trust Co. case, 15 N.E.2d at pages 841, 842, contains this significant comment upon the purpose and effect of the Civil Practice Act of 1933. "Section 46 of the Civil Practice Act makes several noticeable changes in the prior [procedural] statute. Presumably the legislature knew the import of our pronouncements under the former acts, and had in mind remedial legislation to overcome and correct such statutory faults. * * * Instead of the permission (in the previous statute), to change the form of action, section 46 permits changing the cause of action or adding new causes of action. In place of the provision (in the previous statute), that the change may be made to enable the plaintiff to sustain the action for the claim intended to be brought, section 46 permits such change [to be made] as may enable him to sustain the claim intended to be brought. * * * Briefly summarized, section 46 permits any amendment of a pleading, filed in apt time, after the time limited for commencing suit to set up a cause of action on any claim which was intended to be brought by the original pleading, provided, only, that it grew out of the same transaction or occurrence, and it is not necessary that the original pleading technically state a cause of action, or that a cause of action set out in the amendment be substantially the same as any cause of action stated in the original pleading. * * * These changes, together with the judicial construction of the prior statute, evince the legislative intent to remedy the evils incident to the former legislation and to preserve causes of action against loss by reason of technical rules of pleading. This is manifest from the concluding language of paragraph 2 which specifically declares the purpose of preserving the cause of action. The reasons for our decisions under the prior statutes are eliminated from section 46, and are not applicable to its provisions."
18
In the Metropolitan Trust Co. case, an amendment was permitted to be made, after the expiration of the year allowed by the Wrongful Death Act for the bringing of an action, changing the nature of the negligence alleged and substituting a different theory of recovery. The opinion implies that the amendment could not have been permitted under the previous procedural act, as constituting an attempt to state a new cause of action. While the specific amendment which is in question here was not involved in that case we think that the language of section 46 of the Civil Practice Act of 1933 is on its face just as applicable to it, and that the expression in the Metropolitan Trust Co. case suggests that the Illinois Supreme Court would so regard it.
19
The language of the practice act and the expression of the court in the Metropolitan Trust Co. case have been given such an appraisal in Chapman v Terminal R. R. Ass'n of St. Louis, Mo.App., 137 S.W.2d 612. In that case suit was brought in a Missouri state court to recover upon the Illinois Wrongful Death Act, and allegation of the survival of dependent next of kin was first made in the amended petition filed more than a year after the death. The Missouri court gave consideration to the provisions of the 1933 practice act and to the expression of the Illinois court in the Metropolitan case and said: "While under the former law of Illinois it would have been necessary to hold that in the existing state of the record, the filing of the amended petition was to be regarded as the commencement of the action, and that being out of time, plaintiff's action was barred by the expiration of the year, the exact contrary is now true in view of the provisions of the Civil Practice Act of 1933 relating to the matter of amendments to pleadings." 137 S.W.2d at page 617.
20
We are in accord with the view expressed by the Missouri court and hold that denial of plaintiff's requested amendment here was not required as a matter of substantive compulsion under the present Illinois procedure act. Whatever might still be the right of a court to deny such an amendment in a particular situation as a matter of judicial discretion, the trial court made it clear that its denial was made on the basis not of discretionary consideration but of substantive compulsion, when it said: "If that (amendment) is purely a matter of procedural law, then I think plaintiff should be permitted to amend."
21
What we have said requires reversal of the judgment. And under our view that no substantive consideration is involved under present Illinois law in relation to the allowing of the amendment, the situation necessarily stands as one that is subject to the control of Rule 15, Federal Rules of Civil Procedure, 28 U.S.C.A.
22
One or two of the arguments that have been made by defendant should perhaps be made the subject of specific comment. Thus, it has been contended that plaintiff's attempt in her original petition to recover damages as loss to the decedent's estate in property accumulation made the action for the death one commenced under the Iowa statute, Code of Iowa, 1950, §§ 611.20, 611.21, I.C.A., and that no action therefore could be regarded as having been intended to be commenced under the Illinois statute until the time of her requested amendment changing the basis of the recovery to the dependency loss of the widow and next of kin. But the claim intended to be brought was for the wrongful death of the decedent occurring in Illinois. Whether plaintiff mistakenly assumed that this claim would furnish a basis for a cause of action under the Iowa statutes as well as those of Illinois would not seem to be of any materiality under the Illinois procedure act. Paragraph 1 of section 46 of the Civil Practice Act of 1933, as has been pointed out, permits "changing the cause of action * * * or adding new causes of action * * * and in any matter, either of form or substance * * * which may enable the plaintiff to sustain the claim for which it was intended to be brought". Concededly, the only claim to which the death could possibly give rise was under the statutes of Illinois, no matter what cause of action might be attempted to be asserted in relation to it. Legal notice of the existence of such a claim would be contained in the allegation that the death was one that had been caused in Illinois. The rounding out of that claim into the statement of such a cause of action as existed for the death was we think a matter that section 46 permitted to be done by amendment on the basis of mere procedural consideration.
23
It has also been argued that we ought not to give consideration to the Illinois Civil Practice Act of 1933, because that Act does not appear to have been called to the attention and given consideration by the trial court. It hardly needs saying, however, that, in testing whether a trial court has correctly determined a question of law by which it has disposed of a controversy, an appellate court would not be performing its function and responsibility, if it refused to scrutinize any legal material, decisional or statutory, except such as the trial court may have had before it at the time.
24
Perhaps a word of comment should be added as to our view of the basis of the amendment denials made and the non-recovery results reached in the cases of North Pier Terminal Co. v. Hoskins Coal & Dock Corp., 402 Ill. 192, 83 N.E.2d 748, and Gustafson v. Consumers Sales Agency, Inc., 346 Ill.App. 493, 105 N.E.2d 557, referred to above, both of which decisions have been subsequent to the enactment of the Illinois Civil Practice Act of 1933. Each of these cases dealt, not with the right to amend a complaint "At any time before final judgment", under section 46(1) and (2) of the Practice Act, but with the right to refuse to allow such an amendment to be made after a trial had occurred, a judgment had been entered, and a motion for judgment notwithstanding the verdict had been filed.
25
The North Pier Terminal Co. case shows that the request to amend was not there made until after the Court of Appeals had directed the entering by the trial court of a judgment notwithstanding the verdict. The opinion of the Supreme Court says: "The judgment of the trial court was a final one and thereafter, by the terms of the statute, the right to seek an amendment ceased to exist. By section 46(3), the only amendment authorized after final judgment is an amendment to make the pleadings conform to the proof, and plaintiff does not, and cannot, argue that its proposed amendment falls in this category. * * * Furthermore, it is scarcely necessary to point out that had the trial court granted defendant's motion for judgment notwithstanding the verdict, as it should have done, plaintiff would not then have been entitled to amend its complaint and have a new trial on the cause of action, if any, stated in the amended complaint." 83 N.E.2d at pages 751, 752.
26
In the Gustafson case also, the case went to trial, judgment was entered for the plaintiff and motion for judgment notwithstanding the verdict was filed, all without any request having been made for leave to amend the complaint. And as in the North Pier Terminal Co. case, the situation also apparently was one where the provision of section 46(3) of the Practice Act, for making the pleadings conform to the proof, was without application.
27
These denials of the right to amend after trial, judgment and motion for judgment notwithstanding the verdict, do not in our opinion have any relationship to the right provided for in section 46(1) and (2) of amending at any time before there has been a judgment.
28
On the basis of what has been said, the judgment is reversed and the cause is remanded for further proceedings.
Notes:
1
There is a provision in the statute which permits recovery to be had for medical, hospital, burial and administration expenses, in an amount "not exceeding $900 plus a reasonable attorney's fee," where there is no surviving widow or next of kin. This provision, however, is not claimed to be involved or to have any materiality here
2
It may be noted in passing that, in what appears to be the earliest Illinois case on the subject, Chicago & R. I. R. Co. v. Morris, 26 Ill. 400, 403, a judgment for plaintiff was reversed because the declaration did not contain any averment that the decedent had left a surviving widow or next of kin, but the cause was remanded with leave to amend the declaration, the court saying: "For want of a sufficient declaration, the judgment must be reversed, and the cause remanded, with leave to amend the declaration, and for further proceedings in the case."
Similarly, in Quincy Coal Co. v. Hood, 77 Ill. 68, where evidence was offered on the trial of the existence of next of kin not alleged in the declaration, the judgment recovered by plaintiff was reversed but the cause was remanded with leave to amend the declaration.
While these cases do not specifically show that the period fixed by the Wrongful Death Act for the bringing of an action had expired, it would seem probable from the time normally consumed in such litigation that it had, and that these two decisions are inconsistent with the later holdings that such amendments could only be made within the time fixed by the statute for the bringing of an action after the death. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1562925/ | 960 A.2d 745 (2008)
197 N.J. 13
FERNANDEZ
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
C-403 September Term 2008, 63,163.
Supreme Court of New Jersey.
November 19, 2008.
Petition for certification. Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562955/ | 16 So. 3d 828 (2009)
VILLANUEVA
v.
STATE.
No. 3D09-1788.
District Court of Appeal of Florida, Third District.
August 17, 2009.
Decision without published opinion Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858172/ | Garner
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-537-CR
KENNETH LEON GARNER,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 40,835, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING
Kenneth Leon Garner, appellant, appeals his conviction for aggravated sexual
assault of a child. Tex. Penal Code Ann. § 22.021 (West 1989). After finding appellant guilty,
a jury assessed punishment at ten years' imprisonment. Appellant contends that the district court
erred by: (1) rendering judgment on the jury verdict, because the evidence was legally insufficient
to support it; (2) denying appellant's motion to quash the indictment, because it was "duplicitous";
and (3) admitting appellant's written statement into evidence, because it contained extraneous
offenses. Appellant further contends that he did not receive a fair trial and that the trial court
erred in denying his motion for new trial, because the prosecutor suppressed material evidence.
Finding these points to be without merit, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was the victim's Godfather and had known him since his birth on October
22, 1980. As a close family friend, appellant frequently kept the victim overnight. On October
30, 1991, appellant was indicted for sexually assaulting the victim on or about October 22, 1988,
the victim's eighth birthday. At trial, the victim testified that, during an overnight visit on his
eighth or ninth birthday, appellant sexually assaulted him in appellant's one-bedroom apartment
in Temple. Appellant introduced evidence that he was living in Corsicana on the victim's eighth
and ninth birthdays. On rebuttal, the victim testified that he had been sexually assaulted by
appellant on other occasions in Temple as well, although he could not specify any dates. The jury
found appellant guilty and assessed punishment at ten years' imprisonment.
DISCUSSION
In his first point of error, appellant claims that the evidence is legally insufficient
to support his conviction for two reasons. First, he claims that because of inconsistencies in the
victim's testimony, contradiction of the victim by other State's witnesses, and "conclusive"
evidence that appellant did not possess a one-bedroom apartment in Temple, Texas, on October
22, 1988, no rational trier of fact could have found him guilty beyond a reasonable doubt.
Second, he claims that there is no evidence that the victim was not appellant's legal spouse, as
charged in the indictment.
The critical inquiry on review of the legal sufficiency of the evidence to support
a criminal conviction is whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt. This Court does not ask whether it believes that the evidence at trial
established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).
The jury is the exclusive judge of the facts proved and of the weight to be given
to the testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). As such, the jury can
choose to believe or disbelieve the witnesses, or any portion of their testimony. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). The jury is
entitled to accept the state's version of the facts and reject appellant's version. Elkins v. State,
822 S.W.2d 780, 783 (Tex. App.Houston [14th Dist.] 1992, pet. ref'd). The state's witnesses
do not have to testify consistently, and all the state's evidence does not have to support its theory
of the case. Id.; see also Smith v. State, 789 S.W.2d 419 (Tex. App.Houston [14th Dist.] 1990,
pet. ref'd).
Portions of the evidence in the present case may appear to be irreconcilable. The
victim testified that the assault occurred in appellant's one-bedroom apartment in Temple on
October 22, 1988. Appellant presented evidenceapparently undisputedthat he had moved to
Corsicana before that date. A rational trier of fact could, however, have believed the victim's
testimony and disbelieved or disregarded appellant's evidence and found appellant guilty beyond
a reasonable doubt. A rational trier of fact could also have concluded that the assault occurred
in a one-bedroom apartment to which appellant had access and which the young victim mistook
for appellant's prior apartment. Therefore, we conclude there was sufficient evidence that the
offense was committed on or about October 22, 1988, in Temple.
Even if the jury did not disregard appellant's evidence that he was living in
Corsicana on October 22, 1988, the date alleged in the indictment, there is other evidence
sufficient to support the conviction. The date alleged in the indictment as the date of the assault
does not bind the State. A conviction may rest on evidence that the offense was committed before
the return of the indictment and within the applicable period of limitations. Aylor v. State, 727
S.W.2d 727, 731 (Tex. App.Austin 1987, pet. ref'd). The statute of limitations for aggravated
sexual assault of a child is ten years. Tex. Code Crim. Proc. Ann. arts. 12.01(2)(D), (12.03(d)
(West Supp. 1993). The victim does not have to be able to provide an exact date for the offense.
Wilson v. State, 730 S.W.2d 438, 443 (Tex. App.Fort Worth 1987, pet. ref'd). On rebuttal, the
victim testified that he was sexually assaulted on other occasions when he spent the night with
appellant in Temple. None of the assaults to which the victim testified were outside the ten-year
period of limitations.
Appellant claims that the indictment was for one specific sexual assault and that any
other sexual assault of the victim was an extraneous offense. The indictment alleged, however,
that the offense took place "on or about" October 22, 1988. The jury could have disregarded the
victim's testimony as to the date of the offense and found that the sexual assault for which
appellant was indicted occurred on a different date when the victim spent the night with appellant. (1)
Therefore, a rational trier of fact could have found appellant guilty beyond a reasonable doubt.
The evidence is sufficient to support appellant's conviction.
Also under his first point of error, appellant argues that there was no evidence that
the victim was not his spouse. However, the record shows that at trial the victim was eleven
years old and that both the victim and appellant are male. Texas does not recognize same-sex
marriages. See Tex. Fam. Code Ann. § 1.01 and § 1.91 (West 1993). We hold, therefore, that
there was sufficient evidence for the jury to find that the victim was not appellant's spouse. (2)
Appellant's first point of error is overruled.
In his second point of error, appellant complains of the trial court's denial of his
motion to quash the indictment. Appellant claims that the indictment is "duplicitous" and did not
give him fair notice of whether he was being indicted for sexual assault or aggravated sexual
assault. In particular, appellant claims that the "not the spouse of" language contained in the
indictment pertains only to sexual assault and not to aggravated sexual assault. However, the
indictment also alleges that the victim was under fourteen years of age, an element of aggravated
sexual assault and not of sexual assault. Thus, appellant claims the indictment did not give him
fair notice of whether he had been charged with sexual assault or aggravated sexual assault. We
disagree.
The charging part of the indictment appellant complains of provides as follows:
did then and there intentionally and knowingly cause his sexual organ to contact
the anus of [victim] and the said [victim] was then and there a child younger than
14 years of age and not the spouse of the said Kenneth Leon Garner.
The offense of sexual assault is committed if a person "(2) intentionally or
knowingly: . . . (D) causes the anus of a child to contact the mouth, anus, or sexual organ of
another person, including the actor." Tex. Penal Code Ann. § 22.011(a) (West Supp. 1993)
(emphasis added). The term "child" is defined in Section 22.011(c) as "a person younger than
17 years of age who is not the spouse of the actor." Tex. Penal Code Ann. § 22.011(c) (West
1989) (emphasis added).
The Texas Penal Code sets out the offense of aggravated sexual assault as follows:
(a) A person commits an offense:
(1) if the person:
* * *
(B) intentionally or knowingly:
* * *
(iv) causes the anus of a child to contact the mouth, anus, or sexual
organ of another person, including the actor; and
(2) if:
* * *
(B) the victim is younger than 14 years of age.
(b) In this section, "child" has the meaning assigned that term by Section
22.011(c) of this code.
Tex. Penal Code Ann. § 22.021 (West 1989) (emphasis added).
It is clear from the sections quoted above that both sexual assault and aggravated
sexual assault require that the victim be a "child." To be a child, the victim must be younger than
seventeen and cannot be the spouse of the actor. The offense is aggravated sexual assault only
if the victim is younger than fourteen years of age. In the present case, therefore, the language
in the indictment alleging that the victim was not the spouse of appellant tracked the statutory
definition of "child," which is a requirement for both aggravated sexual assault and sexual assault.
The language in the indictment that the child was younger than fourteen years of age, however,
gave appellant notice that he had been indicted for aggravated sexual assault. Appellant's second
point of error is overruled.
In his third point of error, appellant claims that the trial court abused its discretion
in admitting into evidence appellant's written statement which described an extraneous offense.
Appellant gave the written statement to a Temple police officer after being questioned about the
aggravated sexual assault complaint. In the statement, appellant describes his close relationship
with the victim. He relates that in 1988 he lived in a one-bedroom apartment in Temple and often
had the victim over to spend the night with him. He then describes "teaching" the victim to
masturbate during one of these overnight visits. Finally, he disclaims touching the victim, or any
other child, in a sexual way.
Before the statement was offered into evidence, appellant objected outside the
presence of the jury that the statement was an extraneous offense and was not admissible.
Appellant further objected that the probative value of the statement was greatly outweighed by the
danger of unfair prejudice. These objections were lodged against the entire statement, not merely
the sentences where appellant describes teaching the victim to masturbate. This is typified by
appellant's argument when addressing the timing of the objection:
[Defense Counsel]: "Your honor, if he is getting to talk about whether a
statement was taken, I mean, what's next? I don't even
want the point that the statement was taken before the jury."
At no time did appellant direct his objection to any particular portion of the statement. Appellant
did not request that the court delete any portion of the statement offered, although the court had
already deleted another portion of the statement that referred to a polygraph examination. When
a facsimile of the statement, with the polygraph reference deleted, was offered into evidence,
appellant's objections became even broader:
[Defense Counsel]: I have objection to it, your honor, in its entirety. The
Xerox form, the original form, plus deletions, minus
deletions, I have objection, running objection. I would not
go on record saying anything but that.
When an exhibit contains both admissible and inadmissible material, the objection
must specifically refer to the material deemed objectionable. Brown v. State, 692 S.W.2d 497,
501 (Tex. Crim. App. 1985); Wintters v. State, 616 S.W.2d 197, 202 (Tex. Crim. App. 1981).
Where the objection is not specific, error is not preserved for review. Brown, 692 S.W.2d at 501;
Wintters, 616 S.W.2d at 202. The trial judge has no duty to ferret out objectionable portions of
a statement, unless and until trial counsel puts him on notice of what is being objected to. Taylor
v. State, 498 S.W.2d 346, 349 (Tex. Crim. App. 1973).
Appellant objected to the entire written statement as evidence of an extraneous
offense. At no time did appellant point out any particular portion of the statement as the basis for
his objection. Instead, appellant vehemently objected to everything about the statement. Clearly,
some portions of the statement, such as appellant's description of his relationship with the victim
and his admission of living in a one-bedroom apartment in Temple in 1988, were not evidence of
an extraneous offense and were admissible. Therefore, appellant preserved no error for review.
Appellant's third point of error is overruled.
In his last two points of error, appellant complains that the prosecutor actively
suppressed evidence that was material to his defense. In point of error four, appellant complains
that the prosecutor's actions in suppressing evidence denied him a fair and impartial trial. In point
of error five, appellant complains that the trial court erred in overruling his motion for new trial
based on the prosecutor's actions.
At the close of the State's case-in-chief, appellant filed a motion requesting the
psychiatric history of all the State's witnesses and generally seeking exculpatory information. The
State responded to this motion by denying that it had any such evidence. In closing arguments
during the punishment phase of the trial, appellant argued that the jury should give him probation
and require him to pay for counseling for the victim. Appellant implied that this would be the
only way the victim would receive counseling. In rebuttal, the State argued,
I was really amazed that [appellant's counsel] said this was a broken man, because
I ask you to recall and remember [the victim], and the fact that he has to go
through the rest of his life, which is a lot longer than [appellant's] at this point,
carrying the weight of this act on him, and yes, he is getting counseling. That's
not for you to worry about. You don't have to worry that if you send [appellant]
to jail, [the victim] is not going to get counseling.
I don't think it's incumbent upon the State to spread out every aspect of that little
boy's life to you. His counseling is private, it's with his counselor, and there is
no reason why we need to go into it and pick it apart here in Court.
Appellant made no objection to this argument. Instead, while the jury was deliberating, appellant
prepared a bill of exceptions in which he questioned the prosecutor concerning her knowledge that
the victim was receiving counseling. The prosecutor testified that her only knowledge was that
the victim's mother had recently told her that the victim was going to get counseling in the future.
She had no knowledge that he had in fact received counseling. Appellant questioned no other
witnesses in his bill of exception and relies solely on this bill of exception for his fourth and fifth
points of error.
In order to conclude that the prosecutor suppressed exculpatory evidence, we must
first determine that such evidence existed. See Isaacs v. State, 770 S.W.2d 76, 80 (Tex. App.El
Paso 1989, pet. ref'd). Appellant offers no evidence that the victim had actually received any
counseling. The prosecutor expressly denied any knowledge that the victim had received
counseling. Therefore, we conclude that appellant has not shown there was any evidence that was
in fact suppressed. Appellant's fourth and fifth points of error are overruled.
CONCLUSION
The judgment of conviction is affirmed.
J. Woodfin Jones, Justice
Before Justices Aboussie, Jones and B. A. Smith
Affirmed
Filed: October 20, 1993
Do Not Publish
1. The victim admitted that he was unsure of the date of the assault, but thought it was
on his eighth or ninth birthday.
2. See also Murphy v. State, 653 S.W.2d 567 (Tex. App.San Antonio 1983, pet. ref'd).
In that case, a male was convicted of the aggravated sexual abuse of another male. The jury
charge did not require the jury to find that the victim was not the spouse of the defendant.
The court held that this was not reversible error because, as a matter of law, two males may
not be married. Id. at 569-70. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3350409/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This appeal and application for review of statement of compensation was returned to court on August 29, 1995. The application describes property taken by the City of Meriden on April 21, 1995, for the North Colony Industrial Park project. The property taken is known as 590 North Colony Street, Meriden, CT Page 4128 Connecticut. The applicants, the owners of the property, assert in their application that they are aggrieved by the statement of compensation and by the amount fixed as compensation and deposited in court. The respondent City of Meriden deposited the sum of $24,000 in court which the applicants have withdrawn. The court conducted a hearing, received testimony from applicant Haffner and his expert appraiser and from various officials of the City of Meriden and the City's expert appraiser and also viewed the premises. The court concludes that the applicants are aggrieved and are entitled to increased compensation, interest on the increase, an appraiser's fee and costs including an allowance for the testimony of the applicants' appraiser.
The property taken known as 590 North Colony Street contains 20,635 square feet of space, 0.47 acre, with 83 feet of frontage on North Colony Street. The parcel is zoned R3, which permits multiple-family dwellings. As of the date of the take, it was improved with the 720 square foot wood frame, three-bay garage building, constructed in 1980. The present owners acquired this property in 1978 in order to use it in conjunction with another property owned by them, also on North Colony Street, known as 569 North Colony Street. This property is also zoned R3, but a variance obtained in 1964 allows its use as a scrap metal junkyard. The subject property has been used to support the scrap metal junkyard operation since it was purchased in 1978.
The evidence at the hearing indicates that a good deal of this support has been nonconforming in violation of permitted R3 uses. The defendant City contributed to this situation when it granted the owners building permits for both a garage and a weight scale which were located and in use on the site for a lengthy period of time. Ultimately, the City caused the scale to be removed and demanded that the owners cease moving junk with a front end loader creating a junkyard. "Corte letter of 6/24/92" Plaintiffs' Exh. C. This letter also advised the owner that the location was to be used for the parking of vehicles only. Mr. Corte testified at the hearing that he had no objection to the storage of vehicles in the sited garage. Plaintiffs' appraiser testified and the court finds that because of the limited space at 569 North Colony Street the 590 North Colony site has been integral to the overall operation of the metal processing plant at 569 North Colony Street inasmuch as it provided parking for employees and customers which supported the operation of the scrap metal processing operation. Additional parking was essential for the metal processing plant or junkyard known as 569 CT Page 4129 North Colony Street since it is located on a smaller site, some 12,770 square feet with a frontage of 45 feet. This site is located approximately across the street from 590 North Colony Street. One of the owners, Mr. Haffner, testified that the availability of the parcel at 590 North Colony Street permitted employees and customers to park there. He also testified that the business used the garage on the site for storage and garaging of business vehicles and for other uses. The opinion of plaintiffs' appraiser is the predicate for his conclusion that the fair market value of 590 North Colony Street must be considered within the framework of a unity of use concept embracing the overall value of both the 590 and the 569 North Colony Street parcels. Accordingly, the plaintiffs' appraiser posits the take of 590 North Colony Street as a portion of the entire assemblage of both parcels, whereas defendant's appraisers presented the court with stand alone appraisals of 590 North Colony Street, giving no consideration to the consequences of the take on the 569 North Colony Street parcel.
The appraisers were agreed that the neighborhood, 590 North Colony Street and 569 North Colony Street, presents poor prospects for residential development. The present mix is about 70 percent residential, 25 percent industrial and 5 percent retail. In the immediate vicinity of both parcels are two taverns and an autobody shop. The parcel involved in the take is abutted by an industrially zoned parking lot to the south and residential property to the north. Defendant's original appraisal (Plaintiffs' Exh. E) establishing evaluation as of May 17, 1994, suggested the property may best be suited as additional land to an abutting landowner finding the site capable of supporting development. This appraiser found that the highest and best use would be residential or use in conjunction with an abutting owner. As noted, the abutter to the north enjoys an industrial zone status. This appraiser used residential comparables to determine the value of the land as a stand alone parcel and did not consider either the probability of a zone change to industrial use despite the fact that the City's master plan projected such a change in the future or the fact that 590 North Colony Street abutted an industrial zone.
The City's second appraiser established value as of April 21, 1995, on a stand alone basis also using residential comparables. The appraisal noted a mixed neighborhood, now 50 percent residential rather than 70 percent; 15 percent retail and 35 percent industrial, describing the parcel as an illegal, CT Page 4130 nonconforming use approved only for the parking of vehicles (Plaintiffs' Exh. C). With the highest and best use deemed residential, this appraisal did not consider the City's master plan which projected industrial use for this area but did note but not credit in any way the significance that the property borders on an industrial zone to the southwest.
It is apparent to the court that defendant's appraisals gave considerable weight to both the City's citation to the owner for nonconforming use of the premises at 590 North Colony Street and to the City's denial of several petitions for zone changes to that parcel submitted by the owners of the scrap metal collecting facility at 569 North Colony Street, and the premises at 590 North Colony Street.
It is a given that municipalities are highly unlikely to grant a zone change to the owners of a nonconforming use particularly when the expansion involves a use as undesirable as a junkyard. It does not follow, however, that an owner's petition for a zone change for a light industrial building and use on 590 Colony Street would meet the same opposition. The court believes that it is reasonably probable that such a petition would be successful in view of the presence of an abutting industrial neighbor and the forecast of the master plan.
Both of the defendant's appraisers valued the land at 590 Colony Street as residential with meager prospects for development as such; the appraisal valuation of May 17, 1994, placed a square foot value of .90/sq. ft. on the land; the appraisal valuation of April 21, 1995, placed a square foot value of 1.05/sq. ft. on the land. Each included the contributory value of the garage located thereon to arrive at the same estimated market value via the sales comparison approach of $35,000 for the land and building located at 590 North Colony Street.
The court finds that the defendant's estimate of the fair market value of the land in the parcel taken fails to consider the enhanced value this land would generate for an owner prepared to utilize it for light industrial purposes. The court concludes that a petition from such an owner would enjoy a reasonable probability that a zone change petition for such a use would be successful.
Plaintiffs' appraiser analyzed both 569 North Colony Street and 590 North Colony Street as one unified whole inasmuch as both CT Page 4131 properties were held in the same ownership and were operated as a scrap metal business with a North Colony Street parcel utilized to park and garage vehicles. The appraiser examined sales of four properties including two industrial buildings and two warehouses or storage buildings to support a sales comparison approach. Analysis of these sales permitted the appraiser to determine a unit price per square foot of building area which he applied to the primary building at 569 North Colony Street. Such a unit price includes but does not differentiate the contributory value of the land in each of these sales. After analyzing these sales, the appraiser was able to give an opinion of the fair market value of both the 569 North Colony and 590 North Colony Street parcels before and after the taking of 590 North Colony Street as of March 29, 1995. Using this approach, the plaintiffs' appraiser found:
a value before the take of $142,500, the value after the take, $59,500 damages resulting from the take: $83,000
The court finds that this technique permits the court to award just damages to the owner for the actual land taken, 590 North Colony Street, and reflects somewhat the potential of this land for industrial development and also permits the court to award just damages to the owners for the diminution in value of the remaining land; i.e., 569 North Colony Street, caused by the partial take. The court's own analysis using the before and after valuation approach based upon the evidence adduced at the hearing and a viewing of both properties in the immediate neighborhood is as follows:
Value before the take: $142,500
Value after the take: 70,000 --------- Damages as a result of the take: $ 72,500
This sum of $72,500 is reduced by the deposit credit of $24,000 and the sum of $29,975, which the court will allow as a remediation and restoration cost of the site taken.
Judgment may enter for the plaintiff for the further sum of $18,525, in addition to the $24,000 already paid, together with interest on said further sum at the rate of 10 percent from the date of taking to the date of the payment, together with costs and an allowance of $3500 for plaintiffs' appraisal, and an CT Page 4132 allowance of $450 for the testimony of Arthur B. Estrada, the plaintiffs' appraiser.
Dorsey, J. Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1562979/ | 960 A.2d 838 (2008)
COM.
v.
MARRERO.
No. 163 MAL (2008).
Supreme Court of Pennsylvania.
September 17, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563025/ | 758 S.W.2d 849 (1988)
Charles Otis HERRING, Appellant,
v.
The STATE of Texas, Appellant.
No. 13-87-422-CR.
Court of Appeals of Texas, Corpus Christi.
August 31, 1988.
Rehearing Denied October 13, 1988.
*851 James S. Munson, Wharton, for appellant.
Daniel W. Shindler, Bay City, Jim Vollers, Austin, for appellee.
Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
OPINION
NYE, Chief Justice.
A jury found appellant, Charles Otis Herring, guilty of aggravated robbery. Two prior felony offenses were alleged in the indictment for enhancement purposes. The jury assessed punishment in the Texas Department of Corrections for life. We affirm.
At 6:15 a.m. on May 15, 1987, Officer Marcaurele was called to the scene of an armed robbery at the D & D Grocery. During his investigation, Marcaurele learned that the suspect had used a short barrel rifle or shotgun and stole ninety-three one dollar bills, sixteen five dollar bills, eight ten dollar bills, sixty-two quarters, sixty-three dimes, seventy-one nickels, sixty-five pennies, and nine one dollar food stamps. During the robbery, the suspect cut the telephone hand set cord and then fled the scene. Marcaurele testified that the victim "felt" the suspect was a black male. She described him as being five feet five to five feet six inches tall, medium build, wearing a brown jacket, blue jeans, dark shoes, one glove and a stocking over his head. Marcaurele learned that the robbery occurred shortly before 6:14 a.m. that day.
Officer Marcaurele testified that this robbery was very similar to other area robberies of which he had knowledge. These similarities were that each robbery occurred in the early morning; each involved a convenience store; each suspect had the same physical description; each wore a stocking over his head; and during each robbery, each suspect cut the telephone hand set cord. Officer Marcaurele also testified that in one of these robberies, the robber used a pair of orange-handled scissors to cut the telephone hand set cord.
In an attempted robbery in Needville, the store owner followed the vehicle used by the would be robbers. This vehicle was described as a brown Plymouth occupied by two black males. The store owner got the Plymouth's license number which was later determined to be 871-MWV. The suspect who attempted the robbery also had his face covered.
Officer Marcaurele sent out a teletype for all units to "be on the lookout" for the brown Plymouth. Shortly thereafter, he received a call informing him that a possible suspect vehicle involved in the robbery of the D & D Grocery was heading towards the D & D Grocery on Highway 71. At 7:00 a.m. that same day, Officer Marcaurele *852 stopped the brown Plymouth with license number 871-MWV on Highway 71. The Plymouth was occupied by two black males. Marcaurele ordered them out of the vehicle and patted each down for weapons. He found no weapons during the pat down. A roll of money was found on the passenger, Mr. Orange. Marcaurele identified the driver of the Plymouth as appellant and testified that he fit the description of the suspect involved in the D & D Grocery robbery. Marcaurele made a visual inspection of the Plymouth and saw in plain view on the driver's side floorboard a pair of orange-handled scissors. When Marcaurele picked up the scissors, he noticed a wad of money stuffed between the back seat and back door on the driver's side. At this time, appellant was arrested for the robbery of the D & D Grocery. Marcaurele then called a tow truck and performed an "inventory search" of the vehicle.
A search of the trunk revealed a red vinyl zipper bag containing a short barrel,.22 caliber rifle. This bag also contained one roll of quarters, two rolls of pennies, and one roll of nickels. A search of the glove box revealed twenty-two quarters, thirty-one nickels, thirteen dimes, and nineteen pennies.
Appellant sought to suppress the evidence seized in the search of the vehicle he was driving at the time of the stop. In his first point of error, appellant argues that the trial court erred in overruling his motion to suppress evidence seized as a result of a warrantless search of his vehicle. He argued that the seizure of the evidence was unreasonable in violation of U.S. Const. Amends. IV and XIV and Tex. Const. art. 1, § 9 (Vernon 1984).
A police officer may, in appropriate circumstances, and in an appropriate manner, approach an individual for the purposes of investigating possible criminal behavior even though he does not have probable cause to effectuate an arrest. Terry v. Ohio, 392 U.S. 1, 21 (1968). When a police officer stops a person driving a motor vehicle on the basis of his possible involvement in a criminal offense, we look at the totality of the circumstances or the "whole picture" in determining whether the stop was lawful. The detaining officer must have a particularized and objective basis to suspect the person stopped of criminal activity. Two elements must exist in order to effectuate a lawful stop. First, you look to see if the police officer drew inferences and made his deductions based upon his observations, information from police reports, and consideration of the "mode of operation" exhibited by certain kinds of lawbreakers. Second, this procedure must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. See United States v. Cortez, 449 U.S. 411, 418-419, 101 S. Ct. 690, 695-696, 66 L. Ed. 2d 621 (1981) and Campbell v. State, 644 S.W.2d 154, 159 (Tex.App.-Austin 1982), pet ref'd, 647 S.W.2d 660 (Tex.Crim. App.1983).
We find it reasonable that on learning that the Plymouth was seen traveling on Highway 71 towards the D & D Grocery, Marcaurele would stop the vehicle. He possessed information that linked the Plymouth to an attempted robbery in Needville which had a similar modus operandi and a suspect with a similar physical description as did the robbery of the D & D Grocery. Also, the Plymouth was sighted shortly after the robbery occurred on Highway 71 which runs adjacent to the D & D Grocery. While the suspect who had committed the robbery was not reported to have left the store in a motor vehicle, Marcaurele reasonably assumed the possibility that his flight would be continued by means of a motor vehicle. Therefore, the "whole picture" contained sufficient facts and circumstances to raise a suspicion that appellant was engaged in wrongdoing. We hold that Marcaurele's decision to stop the Plymouth for possible complicity in the armed robbery of the D & D Grocery was a decision which issued from a judgment formed in the requisite manner set out in Cortez.
When Officer Marcaurele saw the scissors and the wad of cash, and determined that appellant's physical description fit that of the suspect involved in the robbery of the D & D Grocery, his reasonable *853 suspicion evolved into a reasonable belief that he had the suspect in the robbery of the D & D Grocery. At this point, he had probable cause to arrest appellant for the armed robbery at the D & D Grocery. See Walker v. State, 555 S.W.2d 454, 456 (Tex. Crim.App.1977); Guzman v. State, 521 S.W.2d 267, 269 (Tex.Crim.App.1975); see also Campbell, 644 S.W.2d at 161.
As an incident to appellant's arrest, the officer was authorized to conduct a warrantless, roadside search of the vehicle, including the contents of the glove box and trunk, for weapons and evidence of the robbery. The rule is that a police officer may search an automobile without a warrant where there are both exigent circumstances and probable cause. United States v. Reyes, 792 F.2d 536, 538 (5th Cir.1986), cert. denied, 479 U.S. 855, 107 S. Ct. 191, 93 L. Ed. 2d 124 (1986). Police officers have the right to search an entire vehicle when they have probable cause to believe there is contraband in the vehicle but do not know where it is located. The knowledge of the contraband constitutes an "exigent circumstance" under the "automobile exception" to the warrant requirement. United States v. Ross, 456 U.S. 798, 804-826, 102 S. Ct. 2157, 2162-2173, 72 L. Ed. 2d 572 (1982); Harper v. State, 704 S.W.2d 546, 548 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd). Officer Marcaurele had probable cause to search the Plymouth based upon his knowledge that a weapon was used during the robbery and the probability that the weapon as well as other evidence may be somewhere inside the vehicle. See Esco v. State, 668 S.W.2d 358, 364-366 (Tex.Crim.App.1982) (on rehearing). The trial court properly overruled appellant's motion to suppress evidence which was seized by Marcaurele as a result of the search. Appellant's first point of error is overruled.
In his second point of error, appellant argues that the trial court erred in not granting a mistrial during voir dire examination.
During voir dire examination, the State mentioned to the jury panel that it hoped to present evidence that appellant had written a letter to Mr. Orange, who was in jail. (Orange was the passenger in the brown Plymouth automobile). The State mentioned that in this letter appellant called Orange the "look-out man." The State then said that appellant called Orange this name because they thought he served as a lookout when appellant went into the D & D Grocery.
Appellant objected, requested that the jury be instructed, and moved for a mistrial. The trial court instructed the jury but denied a mistrial. The trial court had previously granted appellant's motion in limine, preventing the State from exhibiting evidence before the jury prior to offering any item into evidence.
A mistrial will not be granted during voir dire unless the statement complained of injects injurious and prejudicial matters before the panel which are reasonably calculated to prevent a fair trial before an impartial jury. See Pennington v. State, 172 Tex. Crim. 40, 353 S.W.2d 451, 452 (1962). Error in admitting improper evidence may be corrected by a withdrawal and an instruction to disregard it except in extreme cases where evidence is clearly calculated to inflame the mind of the jury and suggests the impossibility of withdrawing the impression produced on their minds. Waldo v. State, 746 S.W.2d 750, 752 (Tex.Crim. App.1988). These statements were not so injurious that they would require a mistrial. Moreover, the trial court's instruction cured any possible error.
By the same point of error, appellant complains of questions asked of him during cross-examination. However, appellant's point of error presented on appeal is not the same as his objections raised during trial. Therefore, nothing is presented to us for review. See Burdine v. State, 719 S.W.2d 309, 319 (Tex.Crim.App.1986); see also Adams v. State, 669 S.W.2d 339, 343 (Tex.App.-Corpus Christi 1984), aff'd on other grounds, 707 S.W.2d 900 (Tex.Crim. App.1986). Appellant's second point of error is overruled.
In his third point of error, appellant argues that the trial court erred in not *854 granting his motion for continuance. Appellant stated in his motion for continuance that he did not have the transcript of the pretrial hearing. He also stated that this transcript was needed in the defense of his case in order to impeach the State's witnesses. The granting or denial of a motion for continuance lies within the sound discretion of the trial court. Absent a showing of an abuse of discretion, this Court will not reverse the judgment on appeal. Hernandez v. State, 643 S.W.2d 397, 399 (Tex.Crim.App.1982), cert. denied, 462 U.S. 1144, 103 S. Ct. 3128, 77 L. Ed. 2d 1379 (1983). A trial court does not abuse its discretion in overruling a motion which shows on its face that the continuance was sought to obtain impeachment testimony. Keel v. State, 434 S.W.2d 687, 689 (Tex. Crim.App.1968); Cooper v. State, 509 S.W.2d 565, 568 n. 2 (Tex.Crim.App.1974). Appellant's third point of error is overruled.
In his fourth point of error, appellant argues that the trial court erred in denying his exceptions to the indictment. We note that the record does not reveal whether or not a hearing was ever held on appellant's exceptions to the State's indictment. Appellant argued in his exceptions to the State's indictment that there was a fatal variance between the complaint and the charging instrument. We are unable to locate the complaint in the record.
Appellant has the duty to ensure that the record before the appellate court contains all materials necessary for appellate review. See Soliz v. State, 693 S.W.2d 518, 519 (Tex.App.-Corpus Christi 1985, no pet.). Since these materials are not before us, there is nothing presented for our review. The point of error is overruled.
Appellant next objected that his prior convictions used for enhancement are void. Ten of these exceptions attack the indictments. Two exceptions attack the complaints. Three of these exceptions relate that: 1) the trial court failed to sign an agreement to stipulate testimony; 2) that there is no charging instrument listing witnesses; and 3) that an information recites an incorrect court number. There is no requirement that a charging instrument be included along with the evidence admitted for enhancement purposes. Raetzsch v. State, 745 S.W.2d 520, 523 (Tex.App.-Corpus Christi 1988, no pet.). Moreover, a prior conviction alleged for enhancement may be collaterally attacked only if it is void or if it is tainted by constitutional defect. Appellant's exceptions fail to raise either of these grounds. Less substantial problems in a prior conviction may not be raised by collateral attack. It is irrelevant that such problems would have resulted in a reversal had they been presented for appeal. Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App.1979).
Appellant also objected that the indictment in the instant case was vague and it failed to state an offense for which appellant could have been charged or convicted. The indictment stated that:
Charles Otis Herring ... on or about the 15th day of May A.D. 1987, ... did then and there intentionally while in the course of committing theft of property and with intent to obtain or maintain control of said property, threaten and place Dora Mican in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to wit; a firearm; ....
We find that this language is not vague and does state an offense for which appellant could have been charged or convicted. See Turner v. State, 673 S.W.2d 688, 690 (Tex.App.-Texarkana 1984, pet. ref'd); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex.Crim.App.1981). Appellant's fourth point of error is overruled.
In his fifth point of error, appellant argues that the trial court erred in not granting a mistrial after a State's witness made statements about prior robberies. During cross-examination by appellant, Officer Marcaurele testified that he had knowledge of other robberies that matched the same modus operandi. The trial court instructed the jury to disregard this testimony.
Evidence of an extraneous offense is never admissible unless proof is offered that the accused committed it. If evidence *855 of an extraneous offense is admissible under one of the several exceptions, the offense must be proved, and it must be shown that the accused was the perpetrator. Govan v. State, 671 S.W.2d 660, 663 (Tex.App.-Houston [1st Dist.] 1984, pet. ref'd). In the instant case, neither a crime nor a perpetrator was shown. The officer's testimony implied that appellant may have committed several robberies. See Govan, 671 S.W.2d at 663. However, we do not find that this testimony amounted to error that was not cured by the trial court's instruction.
Error in admitting improper evidence may be corrected by a withdrawal and an instruction to disregard it except in extreme cases where the evidence is clearly calculated to inflame the minds of the jury and suggests the impossibility of withdrawing the impression produced on their minds. Therefore, testimony referring to or implying that an accused allegedly committed an extraneous offense may be rendered harmless by a trial court's instruction to disregard. Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App.1984). We hold that this testimony was not calculated to inflame the mind of the jury and that any error was rendered harmless by the trial court's instruction. Moreover, appellant cannot now complain of testimony he first elicited on cross-examination. Ingham v. State, 679 S.W.2d 503, 507 (Tex.Crim.App.1984). Appellant's fifth point of error is overruled.
In his final point of error, appellant argues that the trial court erred in failing to grant a mistrial in response to the State's improper jury argument.
In its closing argument during the guilt/innocence phase, the State questioned why appellant did not call Mr. Orange to testify on his behalf. The trial court instructed the jury to disregard this comment. The State may comment in its final argument on an accused's failure to call a competent and material witness, including a co-defendant, when it is shown that the witness was available to testify on the accused's behalf, but was not called to do so. Albiar v. State, 739 S.W.2d 360, 363 (Tex. Crim.App.1987); Winkle v. State, 506 S.W.2d 891, 897 (Tex.Crim.App.1974), cert. denied, 419 U.S. 843, 95 S. Ct. 75, 42 L. Ed. 2d 71 (1974). The failure to produce available evidence justifies an inference that it was unfavorable to the accused. Albiar, 739 S.W.2d at 363. Appellant denied any involvement in the robbery and stated that Mr. Orange was with him prior to and at the time of the stop. He also testified that the food stamps found on Orange at the time of the stop were won during a dice game which he and Orange attended. (Food stamps were stolen during the robbery of the D & D Grocery). He also testified that both he and his lawyer spoke with Orange personally about two days prior to trial. We find that Orange was available and that his testimony would have been material to appellant's defense. Therefore, the State's argument was proper. Moreover, any error that may have occurred was cured by the trial court's instruction to disregard.
By this same point of error, appellant also complains that the State, in its closing argument during the guilt/innocence phase, questioned why appellant did not introduce a pair of "jeans" into evidence. Appellant's objection was sustained. We note that appellant, in his closing argument, argued that the State did not introduce the jeans into evidence because they were favorable to appellant. The jeans were in the State's possession. The State may also comment on an accused's failure to present evidence on his own behalf. Thomas v. State, 638 S.W.2d 481, 483 (Tex.Crim.App.1982). Furthermore, the State's comment was invited by appellant's previous argument. We find the State's comment permissible as appellant opened the door by his argument, and we refuse to permit him to benefit from an argument which he invited. Appellant's sixth point of error is overruled.
The judgment of the trial court is AFFIRMED.
OPINION ON MOTION FOR REHEARING
On motion for rehearing, appellant, Charles Otis Herring, argues that we *856 should have applied the rule stated in Billie v. State, 605 S.W.2d 558 (Tex.Crim.App. 1980) in determining whether the trial court properly denied his motion for continuance. Appellant, Charles Otis Herring, states in his motion for continuance that he requested a transcript of the pretrial hearing on August 28, 1987. However, we are unable to locate any written motion or request for the transcript of the pretrial hearing in the record that is before us. Only the motion for continuance.
The rule on appeal is that in order to complain of a trial court's ruling, the record must show that such request or motion was made in writing and included in our transcript. The record must further show the trial court's ruling on such motion in order for us to determine if reversible error was present as contended.
Appellant's motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563007/ | 758 S.W.2d 330 (1988)
James Kevin COONS, Appellant,
v.
The STATE of Texas, Appellee.
Nos. B14-87-00548-CR, C14-87-00549-CR.
Court of Appeals of Texas, Houston (14th Dist.).
August 18, 1988.
*332 Kenneth W. Smith, Houston, for appellant.
John B. Holmes, Jr., Kathlyn Giannaula, Houston, for appellee.
Before PAUL PRESSLER, DRAUGHN and ELLIS, JJ.
OPINION
PAUL PRESSLER, Justice.
Appellant was convicted by a jury of the offenses of aggravated sexual assault and aggravated kidnapping. Punishment was assessed at ninety-nine years and a $10,000 fine for the aggravated sexual assault and ten years and a $5,000 fine for the aggravated kidnapping. We affirm.
No challenge has been made to the sufficiency of the evidence. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S. Ct. 1760, 72 L. Ed. 2d 169 (1982). Therefore, viewing the evidence in a light most favorable to the verdict, the record shows the following facts:
Just after 4:00 a.m. on September 14, 1986, appellant grabbed the complainant from behind as she was walking from a nightclub to her car on a dimly lit residential street. She attempted to break free and scream but appellant warned her to stop or he would use his knife. She was dragged in a headlock grip to appellant's pickup truck. The complainant's head was forced into appellant's scrotum at various times while he drove her to his apartment. Once appellant stopped the truck and raped the complainant. He had covered his face with an undershirt. When appellant finally stopped the truck, the complainant saw carports around her. He dragged her with a headlock grip onto his patio and into his residence. Once inside the apartment, the complainant was forced to sexually gratify appellant while on her knees. Appellant then left the complainant to retrieve something from another room and the complainant attempted to escape through the sliding glass door. Appellant's dog started to *333 bark and jumped on her as she entered the patio. Just as she opened the gate, appellant wrestled her back inside and threatened her for her attempt to escape. The complainant was forced to remove her clothing and she was raped. Appellant commanded her to wait while he went upstairs and being afraid of getting caught again, the complainant complied. When appellant returned, he had replaced the undershirt which had been over his face with a camouflage hood. During the following hours, the complainant while naked, bound, and tied, was forced to gratify appellant's sadistic sexual pleasures.
Later, appellant calmed down, smoked a cigarette, and asked complainant for her address and telephone number for "insurance purposes" before he finally untied his victim. He removed the camouflage mask and put his undershirt back over his head and then allowed the complainant to get dressed. The complainant was led back to appellant's truck and again made to lay with her face in his lap but not forced to do anything further. Appellant then began stroking her back and apologized for his behavior. Appellant said that once he grabbed her from the street, he had to carry through with his acts.
Appellant drove her to her car but, before she was allowed to leave, forced her to kiss him on the mouth. In order to accomplish this, appellant lifted his undershirt to above his nose. Complainant was then able to observe that appellant's nose was broad at the base and that he had thin lips and a mole on his cheek.
Once complainant reached home she contacted family members and friends and went to the hospital. She was able to describe the truck, the apartment and its contents, the dog and the camouflage outfit to the police. She also stated that she believed that she could identify her assailant.
Approximately six weeks later, appellant was arrested and placed in a lineup from which the complainant was able to identify him positively. Police subsequently seized a camouflage outfit and other items which matched the complainant's description. The apartment had sliding glass doors, inside were posters and appellant had a dog matching the complainant's description.
In points of error one through six, appellant argues that he was denied effective assistance of counsel. In order to establish relief under a claim of ineffective assistance of counsel, appellant must first show that his counsel erred so seriously that he was not functioning as that "counsel" guaranteed by the constitution. He must then show that his counsel's errors deprived him of a fair trial, and caused a trial the result of which is unreliable. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim. App.1986). In evaluating the first component of the two-pronged test, counsel's competence is presumed. The defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms, and that the challenged action was not sound trial strategy. Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). In order to demonstrate reversible error on the second prong of the test, the defendant must demonstrate that, but for counsel's conduct, the result of the proceeding would have been different. Strickland, 446 U.S. at 697, 104 S.Ct. at 2069; Rico v. State, 707 S.W.2d 549 (Tex.Crim.App.1983). It is not necessary for a court to address both components of the test if the defendant makes an insufficient showing on one. Strickland, 446 U.S. at 697, 104 S.Ct. at 2069. A claim of ineffective assistance of counsel based on the counsel's failure to call witnesses must fail in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony. Wilkerson v. State, 726 S.W.2d 542, 551 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1590, 94 L. Ed. 2d 779 (1987); Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986).
Here, appellant specifically complains that his counsel failed to call two witnesses whose testimony would have *334 helped the defense. On July 8, 1987, trial counsel informed the court that he had interviewed these two witnesses several months before trial. During that interview, the witnesses indicated that they were moving and gave counsel their new address. Counsel sent subpoena postcards to the new address prior to trial, but the cards were not returned. Counsel stated he believed that since the cards were not returned, the witnesses had received their subpoenas to attend trial. These witnesses did not appear. The trial court then issued an instanter subpoena but the witnesses were not located. The record does not show whether the address was correct. Appellant has not shown that such witnesses were available or that counsel did not make reasonable attempts to secure their presence. Schneider v. State, 645 S.W.2d 463 (Tex.Crim.App.1983). The record also does not contain any affidavits describing what testimony these missing witnesses would have given except that when trial counsel requested the instanter subpoena, he informed the court he believed the witnesses' testimony would show:
[t]hey had never heard or observed any type of untoward activity in the apartment below: that the ceilingthat their floor, [appellant's] ceiling, was very thin; that they had on occasion complained about noise in his apartment and they're very sensitive to that effect.
Assuming that the missing witnesses would have so testified, there is still no showing that the witnesses were at their apartment at the time of the offense. There is also no showing that their failure to hear "untoward activity" from appellant's apartment had any relevance to any issue in the case. Appellant has not shown prejudice. Morris v. State, 696 S.W.2d 616 (Tex.App.-Houston [14th Dist.] 1985), aff'd, 739 S.W.2d 63 (Tex.Crim.App.1987).
Appellant also complains of counsel's failure to present the testimony of a Mr. Randolph who was a security guard on patrol at the complex at the time of the offense. Defense counsel stated that he had attempted to contact this witness, but the employer misled counsel as to the witness' identity. When counsel finally discovered the identity of Mr. Randolph, the security service would not provide further information without a subpoena. The trial court denied counsel's request for a delay of the trial and for the subpoena but allowed the introduction of Mr. Randolph's security report made on the evening of the offense. According to the report, Mr. Randolph had driven through the property at 3:45 and at 5:00 a.m. No unusual activity was reported. However, it was established that the guard would have been on the property only about ten minutes. There is nothing in the record to show Randolph's whereabouts nor that he was actually present at the time of the offense. Even if the security guard had been near appellant's apartment, it was not clear that he could have known that the assault was taking place. Appellant has failed to show that Mr. Randolph was available to testify or that his testimony would have benefitted the defense. The record supports a finding that counsel made reasonable efforts to locate the witness.
Appellant next argues that counsel was ineffective for failing to provide his expert witness with hair specimens which were recovered as evidence. Prior to trial, a motion for discovery of all evidence relating to the case was granted. The state agreed to accompany defense counsel to the Houston police department to examine all evidence obtained by the search warrant or submitted in the rape kit.
Mrs. Kim, a chemist in the Serology department, testified to the rape kit evidence submitted to the Houston police department laboratory. She stated that the hair samples were transferred to one of her co-workers, Ms. Hilleman, and that she did not know the results of any analysis on those samples. After this testimony, the state rested. The next day, counsel requested any additional evidence in the state's possession. Counsel specifically requested the state to produce the reports of any tests made on hair samples taken from appellant. The court allowed an instanter subpoena for Ms. Hilleman. Ms. Hilleman was on vacation and defense counsel recalled Ms. Kim to the stand. Ms. Kim *335 stated that no report could be found regarding any test on the hair samples. She also testified that the samples could not be found, but if the preliminary test showed that the samples belonged to the victim, no further testing would be done. Appellant now says that counsel was ineffective in failing to call Ms. Hilleman as witness either at trial or at the hearing on the motion for new trial. The record shows that the witness was not available at trial. There is no evidence that any tests were performed on the hair samples or, if performed, that such results were exculpatory. See Vertz v. State, 686 S.W.2d 696, 702 (Tex.App.- Corpus Christi 1985, pet. ref'd), cert. denied, 479 U.S. 830, 107 S. Ct. 114, 93 L. Ed. 2d 61 (1986). Likewise, appellant's contention that trial counsel failed to provide hair samples to his expert for testing is without merit. There is no evidence as to which results such testing would have produced. Without such evidence, the value of such testimony is merely speculative. Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App. 1981).
Appellant next complains of ineffective assistance of counsel because he failed to warn a potential witness, Miss Rehder, of the consequences of violating the witness sequestration rule. According to appellant, the witness was prevented from testifying to the following during the guilt innocence phase: that she had known him for five years, she had dated him, they were good friends, there existed a landmark at the apartment the complainant had failed to see, and that appellant had used the camouflage mask to keep out insects when hunting. Neither using his camouflage mask for hunting nor the complainant's forgetting some details are inconsistent with appellant being guilty. Morris, 696 S.W.2d at 620. Appellant has failed to show that "but for" omission of the witnesses' testimony, the result would have been different.
Appellant also argues that trial counsel's failure to introduce this testimony at the punishment phase prejudiced him. Appellant contends that his testimony would have enabled the jury to see his human, compassionate side. Because this complaint deals with the punishment phase of trial, Strickland does not apply. Ex Parte Cruz, 739 S.W.2d 53 (Tex.Crim.App. 1987). The sufficiency of counsel's performance is gauged by the totality of representation of the accused. Ex Parte Cruz, 739 S.W.2d at 58. Trial counsel called appellant's sister to testify at the punishment stage. This witness testified that appellant had had a long and caring relationship with Miss Rehder and that he had never hurt her. The omitted evidence would merely have corroborated appellant's sister's statements. The failure to present such evidence does not establish ineffective assistance of counsel. U.S. v. Cockrell, 720 F.2d 1423, 1428 (5th Cir. 1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3534, 82 L. Ed. 2d 839 (1984).
Appellant finally contends that the lower court abused its discretion in failing to allow a continuance so that missing witnesses could be found. The record contains no sworn motion for continuance or for a new trial. There is no affidavit from a witness who was missing. Therefore, nothing has been preserved for review. Minx v. State, 615 S.W.2d 748 (Tex.Crim. App.1981). See also Tex.R.App.P. 50(d). Ineffective assistance of counsel has not been shown. There is no showing that the trial court abused its discretion. Points of error one through six are overruled.
In point of error seven, appellant asserts that the lower court abused its discretion in excluding Miss Rehder's testimony on the basis of her violation of the witness sequestration rule. The rule was invoked before the state called its first witness. The defense counsel told the court that he had no witnesses present that day. The trial court requested that all witnesses present be sworn and admonished them to stay outside the courtroom when other witnesses were testifying. It is uncertain when Miss Rehder entered the courtroom, but, she admitted that she was present when the complainant gave her testimony. The evidence Ms. Rehder was to offer was intended to contradict or impeach the complainant. In similar situations *336 it has been held not to be an abuse of discretion to enforce the rule. O'Dell v. State, 467 S.W.2d 444 (Tex.Crim.App.1971); Miller v. State, 455 S.W.2d 253 (Tex.Crim. App.1970). The excluded evidence was not crucial to appellant's defense. There was no abuse of discretion. Bates v. State, 587 S.W.2d 121 (Tex.Crim.App.1979); Cooper v. State, 578 S.W.2d 401, 403 (Tex.Crim.App. 1979); Tex.R.Crim.Evid. 613. Point of error seven is overruled.
In points of error eight through twelve, appellant complains that he was denied due process and the right to confront witnesses against him. This was based upon a pretrial conference in which the complainant was possibly exposed to the testimony of another complainant in a different case. He further alleges that the lower court erred in not excluding the complainant's testimony because of that event.
Prior to trial, appellant's counsel filed a motion to strike the complainant's testimony "due to prosecutorial misconduct." Counsel's unsworn motion alleged that the state had held a pretrial conference with the complainant here and the complainant in a different case. Counsel contended that the complainant heard incidents from the other complainant's case which might have bolstered her story.
Appellant contends that harm results because he could not cross-examine the complainant about this pretrial hearing without the jury's hearing that there were possibly other victims.
At the time of the event, the trial had not begun and the rule was not invoked. Therefore, the witness' testimony should not have been excluded. Creel v. State, 493 S.W.2d 814 (Tex.Crim.App.1973); U.S. v. Lamp, 779 F.2d 1088 (5th Cir.), cert. denied, 476 U.S. 1144, 106 S. Ct. 2255, 90 L. Ed. 2d 700 (1986); Tex.R.Crim.Evid. 613. The complainant never testified about the pretrial conference and the other complainant was not called as a witness. There is nothing in the record to show that such a conference occurred or, if it did, what was discussed. Counsel never alleged any specific misconduct but only hypothetical harm. His being concerned that the jury would hear damaging evidence if he cross-examined the complainant did not prevent him from making a bill outside the jury's presence. Appellant has failed to bring forward a record sufficient to show reversible error. Tex.R.App.P. 50(d). Points eight through twelve are overruled.
In point of error thirteen, appellant argues that the jury charge contained fundamental error in that it contained an instruction on good time and parole under Article 37.07, section 4 of Texas Code of Criminal Procedure. This instruction has been found to be violative of the separation of powers doctrine and due process of law. Rose v. State, 752 S.W.2d 529 (Tex.Crim. App.1988). On rehearing, the court in Rose changed the standard of review from a two-tier, objected-to and unobjected-to, harm analysis to an across the board "statutory" analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. Pursuant to Rule 81(b)(2), if the record reveals error, the judgment shall be reversed unless such error was harmless beyond a reasonable doubt.
Appellant was convicted of and sentenced for aggravated sexual assault and aggravated kidnapping. After reading the statutory parole instruction, the trial judge also read the jury the following instruction:
You are not to discuss among yourselves how long the accused would be required to serve the sentence that you impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas, and must not be considered by you.
In the absence of proof to the contrary, it is presumed that a jury follows the instructions given by the judge. Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1983). See also Gardner v. State, 730 S.W.2d 675 (Tex.Crim.App.), cert. denied, ___ U.S. ___, 108 S. Ct. 248, 98 L. Ed. 2d 206 (1987). Appellant does not demonstrate that the jury failed to follow this instruction. The fact that appellant's sentences were actually lower than the maximum punishments requested by the state indicates that the jury followed the instruction.
*337 The facts of this offense mitigate in favor of the assessed punishment. The evidence shows a calculated and tortuous kidnapping and series of sexual assaults that lasted for at least two hours. During that time, the victim was physically, psychologically and sexually abused. Although the state, in passing, stated that the parole law applies to every punishment assessed in the State of Texas, the jury was in no way encouraged to consider the parole law in assessing of punishment.
The foregoing demonstrates that the erroneous instruction did not affect appellant's sentence. The error in submitting the instruction was harmless beyond a reasonable doubt, and it made no contribution to the punishment assessed. Tex.R.App.P. 81(b)(2). Point of error thirteen is overruled.
In point of error fourteen, appellant complains of the following argument made by the prosecutor during the punishment phase of the trial:
[L]adies and gentlemen, you have all the evidence. I know today you can't pull [sic] all the things or aspects of it. You can do most of what you can do, some of what you can do or all of what you can do to rid our society and make sure it's as long as possible till [sic] this defendant applies his trade again with these tools. What in the world has this defendant learned from this experience? Kill the victim the next time. You don't enjoy killing them first without torture
. . .
Appellant contends that this argument was prejudicial and was unsupported by the evidence. In Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App.1985), the court enumerated four areas of permissible jury argument as (1) a summation of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Phillips, 701 S.W.2d at 892.
This argument was a deduction from the evidence. The complainant stated she felt her life was at risk if she did not succumb to her captor's demands. Appellant repeatedly accused her of planning to tell police about him, and she repeatedly had to promise him she did not see his face. The complainant testified that she understood his question about her residence to mean that if she went to the police, he would find her and possibly kill her. Given the meticulous care appellant took to prevent his face from being identified, the threats made upon his victim and his barbaric treatment of her, it was reasonable to argue that he had probably learned that the "best insurance" for never getting caught would be to kill the next victim. Cf. Rudd v. State, 616 S.W.2d 623 (Tex. Crim.App.1981). The trial court sustained appellant's objection and instructed the jury to disregard this statement. Thus any error was cured. Hudson v. State, 675 S.W.2d 507 (Tex.Crim.App.1984); Livingston v. State, 531 S.W.2d 821 (Tex.Crim. App.1976); Hollis v. State, 633 S.W.2d 947 (Tex.App.-Tyler 1982, pet. ref'd). Point of error fourteen is overruled.
In point of error fifteen, appellant also complains of the following jury argument:
I asked the jurors to imagine a hypothetical situation they may have with their spouse or co-worker or neighbor concerning the evidence that they heard and concerning the outrage that the people in Harris County would feel of [sic] a case like this. When you consider the evidence, when you get to discuss this case with your spouse, your neighbors, the people you work with, they ask what you've been doing on jury duty, `Well, we heard a case of a Defendant charged with aggravated sexual assault, aggravated kidnapping. We found him guilty. Then we had to assess punishment. Wait a minute. Why, Mr. Juror, why don't you tell me the facts of the abduction? An attractive young woman was abducted off a street. She was about to complete her master's degree in dietetics. Abducted her off the street to perform oral sex. Hold it. Just a second. You must have given that individual life, all you could have given. Hold a second, friend, neighbors. After that, he ejaculated, raped her. You must have given *338 him a fine of $10,000 and life. That ain't even the tip of the iceberg. He forced the victim to put his testicles in her mouth at the same time, drove her to his apartment, put a hood on his head, tied her up, tied her hands behind her back, tied a telephone cord around her breasts. Hold it a second. You must have assessed the maximum. Wait a second. That settles it all. He anally [sic] forced her to lick his anus. How could you explain to another citizen, anyone who you respect in this court, how you gave this creature anything less than life in prison, $10,000 fine and 20 years and a $10,000 fine?
Appellant argues that this argument is improper because it calls for a community verdict expressly disallowed under Cortez v. State, 683 S.W.2d 419 (Tex.Crim.App. 1984) and Prado v. State, 626 S.W.2d 775 (Tex.Crim.App.1982). Appellant did not object to the above argument and has thus failed to preserve error for review. Drew v. State, 743 S.W.2d 207 (Tex.Crim.App. 1987). Further, even if error had been properly preserved, this argument is similar to the argument upheld in Whittington v. State, 580 S.W.2d 845, 847 (Tex.Crim. App.1979) (asking the jury to give a verdict they, their friends and neighbors can be proud of). See also Bell v. State, 707 S.W.2d 52, 74 (Tex.Crim.App.1986) (republished at 724 S.W.2d 780, 801). Here, as in Whittington, the prosecutor's argument was a permissible plea for law enforcement. The jury was not asked to convict or punish based upon public sentiment.
Appellant also argues that the cumulative effect of the complained of arguments in points of error fourteen and fifteen denied him a fair trial. Such arguments have been found to be proper. Appellant has not shown how he was denied a fair trial. Cf. Miller v. State, 741 S.W.2d 382 (Tex. Crim.App.1987). Point of error fifteen is overruled.
In points of error sixteen and seventeen, appellant alleges that he was convicted under a fundamentally defective indictment because the indictment does not allege an element of aggravated sexual assault and, for this reason, a variance exists between the offense charged in the indictment and the punishment assessed. The indictment at issue states, in part, that appellant did:
intentionally and knowingly by use of physical force and violence and by threatening the present use of force and violence against [complainant], not the spouse of defendant ... cause the penetration of the mouth of the complainant with the sexual organ of the defendant and without the consent of the complainant and by acts, and words, the defendant placed the complainant in fear that death and serious bodily injury would be inflicted on the complainant.
Appellant specifically contends that the indictment does not allege aggravated sexual assault because it does not state that his victim was placed in fear that death and/or serious bodily injury would be imminently inflicted. Tex.Penal Code Ann. § 22.021(a)(2) (Vernon 1988). Use of the word "imminently" was not necessary in this instance because the indictment, read as a whole, supplies that element. Accord King v. State, 675 S.W.2d 514 (Tex.Crim. App.1984). See Murphy v. State, 665 S.W.2d 116 (Tex.Crim.App.1983), cert. denied, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 40 (1984); Dennis v. State, 647 S.W.2d 275 (Tex.Crim.App.1983). See also Jackson v. State, 700 S.W.2d 704 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Points of error sixteen and seventeen are overruled.
In point of error eighteen, appellant contends that the lower court erred in disposing of his motion for new trial in his absence.
Counsel filed a motion for new trial and an evidentiary hearing on August 7. These motions were denied by the trial court on September 18. Trial counsel, but not appellant, was present when the motion was denied. Appellant now argues that he was entitled to be present because the motion for a new trial is a critical stage of the proceedings which entitled him to be present. Appellant alleges that he was in custody at the time this motion was ruled *339 upon. Therefore, his absence was not a voluntary waiver.
The right to be present at trial and confront witnesses is fundamental and essential to a fair trial. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Kirby v. U.S., 174 U.S. 47, 19 S. Ct. 574, 43 L. Ed. 890 (1899). That right is protected by Article 1, section 10 of the Texas Constitution and the sixth amendment of the U.S. Constitution. Pointer v. Texas, 380 U.S. at 413, 85 S.Ct. at 1073. The defendant's right of attendance also includes a hearing on a motion for new trial. See Texas Code Crim.Pro.Ann. art. 33.03 (Vernon Supp.1988). A defendant, however, may waive his right to be present at a motion for new trial. Phillips v. State, 163 Tex. Crim. 13, 288 S.W.2d 775 (1956). Reversal is required only where the defendant desires to be present at the hearing and is denied that right. Jackson v. State, 379 S.W.2d 896 (Tex.Crim.App. 1964); Lacy v. State, 374 S.W.2d 244 (Tex. Crim.App.1963). The record does not reflect that appellant requested to be present or that he was denied that right. It does not appear that appellant or his counsel objected to the court's having the hearing in his absence. The order overruling the motion noted that trial counsel was present and ready to proceed. The defendant was not shown to have been prevented from attending any hearing. See Johnson v. State, 289 S.W.2d 249 (Tex.Crim.App.1956). The mere fact that appellant was in custody did not prevent his attendance. Trial counsel could have requested a bench warrant. Tex.Code Crim.Pro.Ann. art. 24.13 (Vernon 1966). The motion presented questions which could be resolved from the record. None of the allegations were supported by affidavits. See Schneider v. State, 594 S.W.2d 415 (Tex.Crim.App.1980). In order for the trial court to consider a motion based upon allegations not in evidence, the motion must be supported by an affidavit. McIntire v. State, 698 S.W.2d 652 (Tex.Crim.App.1985); Fielding v. State, 719 S.W.2d 361 (Tex.App.-Dallas 1986, pet. ref'd). Because appellant's motion was not supported by an affidavit, it was properly overruled without an evidentiary hearing. See and compare McIntire, 698 S.W.2d at 658. Appellant's presence was not required. Cf. Bumpus v. State, 509 S.W.2d 359 (Tex.Crim.App.1974). Point of error eighteen is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/456964/ | 770 F.2d 180
Slawskiv.U.S.
85-783
United States Court of Appeals,Federal Circuit.
5/16/85
Cl.Ct., 6 Cl.Ct. 433
Affirmed | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2459637/ | 265 F. Supp. 2d 539 (2002)
Betty MURDOCK, Plaintiff,
v.
UNUM PROVIDENT CORPORATION and Paul Revere Life Insurance Company, Defendants.
Civil No. 00-2443.
United States District Court, W.D. Pennsylvania.
December 6, 2002.
Stanley A. Winikoff, Jones, Gregg, Creehan & Gerace, Pittsburgh, PA, for Plaintiff.
William James Rogers, Thomson, Rhodes & Cowie, Pittsburgh, PA, for Defendants.
MEMORANDUM ORDER
CINDRICH, District Judge.
Plaintiff was an executive at Allegheny General Hospital ("AGH"). In connection with AGH's Executive Flex benefit plan, plaintiff purchased a disability insurance policy from defendants. Ms. Murdock applied for benefits under the policy in 1999 and defendants denied her claim. This *540 litigation, in which plaintiff sued under state law for breach of contract and bad faith denial of coverage pursuant to 42 Pa.C.S.A. § 8371, followed.
Pending is defendants' Motion for Summary Judgment (Doc. No. 17). Defendants argue that plaintiffs state law claims are preempted because the policy of disability insurance at issue was an employee benefit plan under the Employee's Retirement Income Security Act of 1974 ("ERISA"). Plaintiff admits the existence of an ERISA plan but contends that ERISA's safe harbor provisions apply (see 29 CFR § 2510.3-1(j)) ("Safe Harbor"), such that the policy at issue should be governed by the standards applicable to insurance policies.[1]
The applicable law was outlined in Schneider v. UNUM Life Ins. Co. of America, 149 F. Supp. 2d 169 (E.D.Pa. 2001):
The Safe Harbor Provision provides, in pertinent part, that a plan will not be considered an "employee welfare benefit plan" under ERISA if it includes a[G]roup or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made [to the plan] by an employer or employee organization; (2) Participation [in] the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3-1(j).
The Safe Harbor Provision only applies to programs that satisfy all four of the above criteria, see Zimnoch v. ITT Hartford 2000 WL 283845 at *5 (E.D.Pa. Mar. 14, 2000).
The third factor, regarding the question of whether the employer has "endorsed" the program, has proven to be the most troublesome for the courts. The Court of Appeals for the Third Circuit has not ruled definitively on the issue. Our review of non-precedential case law from other district courts and other circuits discloses contradictory conclusions regarding similar degrees of employer involvement (see infra at pp. 7-8). Having reviewed the facts and holdings of many of these cases, we were left with no clear path to a principled decision on the question of what is meant by employer endorsement of a program. While the test is clear, and numerous cases have discussed its mechanical application to a variety of fact patterns, there has been little discussion of the principles and considerations underlying the Safe Harbor provision. Accordingly, we take this occasion to review the broad purposes of ERISA and to attempt to fashion a rule which will respect and further those purposes.
It is clear from the Congressional findings and declaration of policy set forth in 29 U.S.C. § 1001 that ERISA was intended to protect employees. Part of Congress' *541 effort to protect employees was the creation of an effective forum for resolving benefits disputes. In Section 1001(b), Congress declared its policy to protect interstate commerce and participants in employee benefit plans "by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts." (Emphasis added.) In Herzberger v. Standard Ins. Co., 205 F.3d 327, 330 (7th Cir.2000), the Court described ERISA plans as "a special kind of contract, in order to confer greater protection on one of the parties, namely the participant or beneficiary, than on the other, the plan administrator ... and obviously this particular weighting favors, in doubtful cases, a presumption of full judicial review at the behest of the favored party."
The most thorough explanation of the underlying goals of the Safe Harbor occurred in Johnson v. Watts Regulator Co., 63 F.3d 1129 (1st Cir.1995). The Court instructed that the Safe Harbor at issue "operates on the premise that the absence of employer involvement vitiates the necessity for ERISA safeguards." Id. at 1133. The Court also relied on the Department of Labor's description of "employer neutrality" as the key factor in determining whether a program will be deemed an employee benefit plan under ERISA. Id. at 1134 (citing 40 Fed.Reg. 34,526).[2] In other words, ERISA is intended to govern the employer-employee relationship, but does not extend to agreements entered into by employees with third-parties. The Court cautioned that "remaining neutral does not require an employer to build a moat around a program or to separate itself from all aspects of program administration." Id The Court concluded that ERISA's objectives were best met by adopting a "reasonable employee" standard for judging whether the Safe Harbor had been met.[3]
It is interesting that the ERISA Safe Harbor is not being advocated by the employee in this case (or in any of the other cases reviewed by this court.) Nor is the employer seeking a Safe Harborthe employer is not even a party to this matter. Rather, it is a third-party insurer who seeks to use ERISA as a shield to liability. By having the plan at issue construed as *542 an ERISA plan, the insurer will be able to invoke the preemption doctrine, with numerous favorable consequences for the insurer.
The broad preemption doctrine has been described as an integral part of ERISA's "interlocking, interrelated, and interdependent remedial scheme." Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146, 105 S. Ct. 3085, 87 L. Ed. 2d 96 (1985). If the insurer succeeds in characterizing this policy as an ERISA plan, the employee may lose the right to trial by jury, the right to file suit in state court, perhaps the right to sue for bad faith denial of coverage and recover punitive damages, and the right to file suit without exhausting administrative remedies. Johnson, 63 F.3d at 1130-31. Perhaps most importantly, the employee loses the right to have the policy language construed under the principles of contract law (and to have ambiguities construed against the drafter). Instead, if the plan documents confer appropriate discretion under ERISA, the insurer's interpretation of its own policy can only be overturned if it was "arbitrary and capricious." See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989). In Pegram v. Herdrick, 530 U.S. 211, 232 n. 15, 120 S. Ct. 2143, 147 L. Ed. 2d 164 (2000), the Supreme Court commented that it was "at least questionable" whether Congress intended to include entities whose eligibility decisions would affect their own bottom lines within the parties entitled to such unfettered discretion.
The arbitrary and capricious standard presents a difficult obstacle for an employee challenging a benefits decision to overcome. Because of the dramatic consequences of this standard of review, it should be part of the "reasonable employee" analysis. In addition to asking whether a reasonable employee would have thought that his employer "endorsed" the policy, we should also ask whether a reasonable employee would have expected that the insurer would have discretion to make coverage decisions regarding the policy at issue subject only to "arbitrary and capricious" review. Of course, this issue would not arise under our proposed bright-line test. With this background, we now turn to application of the Safe Harbor test.
1. Employer Contributions
The first factor of the Safe Harbor test evaluates whether the employer has made contributions to the Plan. In this case, plaintiff contends that she paid for the disability policy at issue by using her pretax, flex dollars. Article 3.1 of the Allegheny Health, Education and Research ("AHERF") Flexible Individual Long-Term Disability Benefit[4] states that "the Company shall pay the premium on the Policy each Premium Year." However, Article 3.2 provides that a Participant may elect to reimburse the Company for all or a portion of the premium from after-tax income. Because plaintiff elected to do so, we conclude that there was no employer contribution. Therefore, the first factor is met.
2. Voluntariness
The second factor of the Safe Harbor test evaluates whether the employee's participation was voluntary. In this case, Murdock was not required to purchase the enhanced disability insurance at issue. Instead, she could choose among a variety of benefits options from AHERF's cafeteria *543 plan. Therefore, this factor was satisfied. Zimnoch, 2000 WL at 283845 *3. Defendants argue that only certain employees were eligible to participate in the Execu-Flex plan. However, this fact goes more to the issue of "employer endorsement" than voluntariness.
3. Employer Endorsement/Participation
This factor is the key issue in the case. It is also the most difficult to resolve on summary judgment because it incorporates a "reasonable employee" standard, as we discussed supra. In Johnson, 63 F.3d at 1135, the Court explained that the third Safe Harbor factor would be violated if: "[i]n light of all the surrounding facts and circumstances, an objectively reasonable employee would conclude on the basis of the employer's actions that the employer had not merely facilitated the program's availability but had exercised control over it or made it appear to be part and parcel of the company's own benefit package." The Court elaborated by saying that, as long as the employer merely advises employees of the availability of group insurance, accepts payroll deductions, passes them on to the insurer, and performs other ministerial tasks that assist the insurer in publicizing the program, it will not be deemed to have endorsed the program under section 2510.3-1(j)(3). Id. at 1134. The question of endorsement under the Safe Harbor Provision is a mixed question of law and fact. Id.
The principle animating factor 3 of the Safe Harbor Provision is one of employer neutrality; plans are not subject to ERISA in cases where employers are disconnected from the program such that it is clear that the program represents a "third party's offering" to employees. Thompson v. American Home Assurance Co., 95 F.3d 429, 436 (6th Cir.1996). The First Circuit explained this policy in Johnson, 63 F.3d at 1133:
[t]he safe harbor dredged by the regulation operates on the premise that the absence of employer involvement vitiates the necessity for ERISA safeguards. In theory, an employer can assist its work force by arranging for the provision of desirable coverage at attractive rates, but, by complying with the regulation, assure itself that, if it acts only as an honest broker and remains neutral vis-a-vis the plan's operation, it will not be put to the trouble and expense that meeting ERISA's requirements entails.
In this case, the enhanced disability policy at issue was offered as one of several choices in AHERF's cafeteria-style Execu-Flex benefit plan. This disability policy provided enhanced coverage because it used an "own occupation" test for disability rather than the "reasonable occupation" test used under the group policies offered as part of AHERF's Basic Benefits. Allegheny General Hospital Employee Benefit Summary at 6 (Exh. C to Defendant's Motion).
Article 1.1 of the Execu-Flex plan states that long-term disability benefits elected by the Participant "shall be governed by the terms of this Exhibit D, in addition to the other terms of the Flexible Benefit Plan and Execu-Flex Benefit Plan." Article 1.2.1 defines the "Insurer" as "the insurance company selected by the Company, in its sole discretion...." AHERF also determined the ehgibility of employees who could participate in the Execu-Flex program. Article 2.1 states that "The Company shall assist the Participant in applying for issuance of a Policy providing a level of coverage and such other provisions as determined by the Company." AHERF also assisted plaintiff in appealing her claim, although it had no authority to determine whether she *544 was entitled to benefits. AHERF appointed one of its employees to be the Execu-Flex plan administrator. These facts all tend to indicate that the Safe Harbor was breached.
There is contrary evidence, as well. Although Paul Revere was the only company selected to provide enhanced long-term disability insurance as an optional selection, AHERF also provided several options for short and long-term disability insurance as part of its Basic Benefits. Employees had the option to accept or reject the enhanced disability coverage and participants could vary the amounts of coverage. The plan summary explained that an application and medical examination may be required and that the underwriting decision would be made by Paul Revere.
The most analogous cases have come to different conclusions. In Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207 (11th Cir.1999), the Court found that an employer had endorsed a third-party plan under the meaning of the Safe Harbor Provision because "it picked the insurer; it decided on key terms, such as portability and the amount of coverage; it deemed certain employees ineligible to participate; it incorporated the policy terms into the self-described summary plan description for its cafeteria plan; and it retained the power to alter compensation reduction for tax purposes." Id. at 1213-14; see also Cecchanecchio v. Continental Cos. Co., 2001 WL 43783, at *3 (E.D.Pa. Jan. 19, 2001) (finding that endorsement existed where an employer served as "the point of contact as the plan administrator, and, more importantly, handle[d] the filing of complaints"). In Hrabe v. Paul Revere Life Ins. Co., 951 F. Supp. 997 (M.D.Ala. 1996), the court found an employer endorsement because the employer selected the policy as the only disability policy for inclusion in its flexible benefit plan, which was funded by tax-free dollars and administered by the employer. In Hansen v. Continental Ins. Co., 940 F.2d 971 (5th Cir.1991), the Court held that an employer had endorsed a plan because the company retained a full-time benefits admmistrator who submitted claims on behalf of employees and had sent out a brochure to employees describing the insurance as "our" plan and as "a valuable supplement to your existing coverage." Id. at 974. In Shiffler v. Equitable Life Assurance Society, 663 F. Supp. 155 (E.D.Pa.1986), aff'd 838 F.2d 78 (3d Cir.1988), the court found employer endorsement where it presented the plan to employees as belonging to its benefit package. Accord Schneider, 149 F.Supp.2d at 169 (granting summary judgment because the employer-union permitted an "endorsed" logo to be placed on the plan and referred to it as part of its employee benefits package).
On the other hand, in Byard v. QualMed Plans for Health, Inc., 966 F. Supp. 354 (E.D.Pa.1997), the court found that the defendant had not satisfied its burden of proving that Byard Signal had "offend[ed] the ideal of employer neutrality." The court found that it was clear to Byard Signal's employees that the Plan was a "third party offering, not subject to [Byard Signal's] control" because the employees themselves selected the Partnership Plan from the range of options that Greater Atlantic made available. Similarly, in Johnson, 63 F.3d at 1136, the Court held that the employer had not breached the Safe Harbor test where it had no hand in drafting the plan, working out its structural components, determining eligibility for coverage, interpreting policy language, investigating claims or negotiating settlements. Accord Levett v. American Heritage Life Ins. Co., 971 F. Supp. 1399 (M.D.Ala.1997); Zavora v. Paul Revere Life Insurance Co., 145 F.3d 1118 (9th Cir.1998). In Lott v. Metropolitan Life *545 Ins. Co., 849 F. Supp. 1451 (M.D.Ala.1993), the court found that an employer had not endorsed a life insurance program offered separately from the employer's cafeteria benefit plan.[5]
For purposes of this summary judgment motion, we must construe all facts in the light most favorable to plaintiff. Although the majority of the cases seem to indicate that an employer's choice of a disability plan to be part of its cafeteria menu breaches the Safe Harbor, we cannot say as a matter of law that the circumstances of this case must lead a reasonable employee to conclude that AHERF endorsed the plan. Although the Execu-Flex Benefit Plan itself was clearly endorsed by AHERF, defendants have produced no evidence to indicate that AHERF endorsed the enhanced disability policy at issue, particularly when another disability insurance option was issued as part of AHERF's Basic Benefits. Accordingly, we cannot conclude as a matter of law that AHERF violated this element of the Safe Harbor test.[6]Accord Rubin v. Guardian Life Ins. Co. of Am., 174 F. Supp. 2d 1111 (D.Or. 2001) (denying insurer's motion for summary judgment because there was a question of fact regarding employer endorsement).
4. Employer Consideration
The fourth element of the Safe Harbor test considers whether the employer received an economic benefit other than reasonable compensation for performing the payroll deduction. Defendant's motion does not present any evidence that AHERF received such consideration.
In summary, there is little or no dispute that AHERF complied with factors (1), (2) and (4) of the Safe Harbor test. As to element (3), we cannot conclude as a matter of law, under either the "reasonable employee" standard or our proposed bright-line test, that AHERF endorsed the policy. We believe that this result, which preserves plaintiffs right to challenge defendants' denial of her claim for benefits, is in accord with the principles and policies of ERISA.
Accordingly, this 6th day of December, 2002, defendant's Motion for Summary Judgment (Doc. No. 17) is hereby DENIED.
NOTES
[1] We note the split of authority in the United States District Court for the Eastern District of Pennsylvania as to whether bad faith claims under Pennsylvania law are preempted by ERISA. For purposes of this motion, we will assume, along with the majority of courts, that ERISA preempts such claims if the Safe Harbor does not apply.
[2] The Department of Labor issued another Interpretive Bulletin on June 18, 1999, explaining its "long-held view" that an employer who simply provides employees with the opportunity to participate, "under terms and conditions similar to those of certain other optional payroll deduction programs, such as for automatic savings deposits or purchases of United States savings bonds," does not create a "pension plan" within the meaning of ERISA. 64 Fed.Reg. 33002.
[3] While we agree with the Johnson court's goals, we have doubts about the wisdom of making "employer endorsement" into a factintensive, reasonableness test. Such a test spawns additional litigation and introduces the potential of inconsistent results (i.e., a jury could conclude that the policy at issue is within the Safe Harbor for Employee A's lawsuit, while another jury reached the opposite conclusion in Employee B's suit). More importantly, this test creates uncertainty for employers when designing their plans. Therefore, we believe that there should be a clear, bright-line test for evaluating "employer endorsement," as exists for the other Safe Harbor factors. We propose that a plan be deemed "endorsed" (and therefore outside the Safe Harbor) only if there is a clear, conspicuous statement from the employer to the employees, such as: "This policy is an employee benefit and will be governed by ERISA." Presumably, insurers will want employers to include this endorsement and employers, in turn, will gain some leverage in these negotiations.
[4] (Exhibit D to Attachment 1 of the Plan, which was produced as Exh. B to Defendants' Motion for Summary Judgment)
[5] The cited cases are not exhaustive, but they do give a representative flavoring of the ways in which the Safe Harbor test has been employed.
[6] We would reach the same result under our newly proposed bright-line test, because there was no clear statement from AHERF that the policy at issue was an employee benefit that would be governed by ERISA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459683/ | 392 S.W.2d 240 (1965)
RAFINER ELEVATOR WORKS, INC., Appellant,
v.
MICHIGAN MUTUAL LIABILITY COMPANY, Respondent.
No. 51267.
Supreme Court of Missouri, En Banc.
July 12, 1965.
Rope, Shanberg & Rope, Herbert M. Rope, Sherman L. Gibson, Kansas City, for appellant.
Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondent.
HOLMAN, Judge.
Plaintiff filed this suit in an effort to recover the amount expended in the successful defense of a damage suit. It contends that defendant was obligated to make the *241 defense under the terms of a comprehensive general liability policy of insurance issued to plaintiff by defendant. It is agreed that the aggregate amount of the attorney fees and costs involved is $1,387. A jury was waived and the case was submitted to the trial court upon an agreed statement of facts. The court entered judgment for defendant. Plaintiff appealed and the Kansas City Court of Appeals adopted an opinion affirming the judgment. Upon application of plaintiff we transferred the case here because the opinion appeared to be in conflict with the opinion in Kissel v. Aetna Casualty & Surety Co., Mo.App., 380 S.W.2d 497, which had been adopted by the St. Louis Court of Appeals a short time before. The Kissel case had not been published at the time this case was submitted and was not called to the attention of the Kansas City Court of Appeals.
Plaintiff was engaged in the business of manufacturing, repairing, and servicing elevators. At the time of and prior to the accident here involved plaintiff was a party to a written elevator service agreement with the Friedman Meat Company which owned the building at 524 Walnut Street in Kansas City. Under the terms of that agreement plaintiff was obligated (for a fee of $6 per inspection) to make periodic bimonthly inspections of the freight elevator in that building and to clean, oil, and grease the machinery involved, and to make necessary minor adjustments if such could be made in less than 30 minutes on regular inspection days. Plaintiff's employee inspected the elevator on November 19, 1959. Thereafter, on December 17, 1959, one John W. Rowe, an employee of Friedman, was allegedly injured in the fall of that elevator.
On June 9, 1960, Rowe instituted a suit against Rafiner (plaintiff here) and the owner of the building in the Circuit Court of Jackson County, Missouri, alleging in his petition therein that he had been injured by reason of the fall of a freight elevator in the building located at 524 Walnut Street, and further alleging that the elevator motor and gear were in a defective condition and that Rafiner knew of said condition, or could have discovered same by the "exercise of care," and failed to warn said Rowe of the dangerous condition.
Plaintiff forwarded the petition in that case to defendant and requested that it defend the suit under the terms of the policy hereinafter described. There was evidence to indicate that the casualty was caused by overloading the elevator which caused the teeth on a gear and pinion to be broken off, thus permitting the elevator to fall. On June 24, 1960, defendant notified plaintiff that it would not defend the Rowe suit because it involved "Products Coverage" which was not a risk covered by plaintiff's policy. Plaintiff Rafiner thereupon employed counsel, defended the suit, and obtained a verdict in its favor.
The insurance policy here involved (which was admittedly in force on the date of the casualty) contained a general insuring clause by which defendant agreed "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident." It also provided that "with respect to such insurance as is afforded by this policy, the company shall: (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * * *."
From the foregoing it clearly appears that defendant was obligated to defend the suit heretofore mentioned unless there is found in the policy a provision containing an applicable condition or exclusion which would relieve defendant from the general obligation heretofore quoted. The sole exclusion relied on by defendant is that relating to "products hazard." One of the eight separate endorsements attached to the policy provides that "the policy does not apply to the products hazard as defined *242 therein." In that connection the policy contains the following:
"(c) Products Hazard. The term `products hazard' means
(1) goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured * * *.
(2) operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured; provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed to be `operations' within the meaning of this paragraph: (a) pick-up or delivery, except from or onto a railiroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the classification stated in division (a) of the declarations specifically includes completed operations."
It is defendant's contention that it was relieved of the obligation to defend the Rowe case because the admitted facts show that the situation involved comes within the policy definition of "products hazard." An examination of that definition will disclose that subparagraph (1) relates to goods or products manufactured, sold or distributed. It accurately describes the usual subject matter which would normally be included in a definition of "products." However, subparagraph (2) purports to include in the definition of "products" the word "operations." The word "operations" has a number of meanings, as indicated by the following definitions: "9 a: a business transaction esp. when speculative * * * b: the whole process of planning for and operating a business or other organized unit * * * c: a phase of a business or a business activity * * * 10: the operating of or putting and maintaining in action of something * * *." Webster's Third New International Dictionary. The singular "operation" is defined in Black's Law Dictionary, Fourth Ed., as: "Exertion of power; the process of operating or mode of action; an effect brought about in accordance with a definite plan; action; activity." The definition in (2), supra, would appear to include any activity relating to labor or the rendition of services even though no tangible goods are handled or produced. Although the meaning of subparagraph (2), supra, is not clear, it could be contended that if the "operations" occur away from the premises of the insured and have been completed, an accident occurring at the site of such operations would be a "products hazard" which would be excluded from coverage.
It is difficult indeed to understand how "products" could reasonably be defined to include operations consisting solely of work or services. The average person would consider "products" to mean goods or tangible items usually manufactured, sold, or distributed. No business man would reasonably expect to find a service operation excluded from coverage by including it in a definition of "products." To include an exclusionary provision such as (2), supra, under a definition of "products" in a general comprehensive liability policy would appear to be misleading and deceptive.
In the Kissel case, supra, the St. Louis Court of Appeals had before it a policy the material provisions of which were the same as those in the instant case. There the plaintiff was a contractor. Some time *243 after certain grading had been completed several adjoining landowners filed separate suits to recover damages to their land which they alleged had occurred as a result of the negligent manner in which the grading had been done. The insurer refused to defend because "products hazard" was excluded by an endorsement and it contended that, since the work had been completed, there was no coverage because of the "operations" clause which was identical with (2), supra. Kissel settled the cases and brought suit to recover the amount expended. The trial court found for plaintiff and the court of appeals affirmed that part of the judgment. In so holding, the court stated:
"By no stretch of legalistic nomenclature or business language or understanding can it be said that the plaintiffs either manufactured, sold, handled or distributed any products. Their business was clearly stated in the insurance policy as that of `contracting.' From the very nature of their business one can only conclude that they performed services. To the average person the term products hazard can only mean a hazard arising out of the use of or the existence of any condition in goods or products manufactured, sold, handled or distributed by the insured. The suits filed against plaintiffs herein involve no such hazard but are based only and solely on alleged negligence in connection with the excavation of the premises in question. Certainly plaintiffs were seeking comprehensive general liability coverage and were seeking a policy that would cover all manner of claims arising in the performance of their type of business. * * * [A]s said in the Hercules case, any exclusion which relates to `products' either sold, manufactured, handled or distributed by the insured would not be an exclusion which would relate to services performed out of which services the accident arose. We can do no better, in connection with the facts in the instant case, than to repeat what was said in the Hercules case: `No businessman (or other ordinarily intelligent person) reading this policy could reasonably assume from the rather ambiguous language used therein that the insured was not protected against the natural consequence of any negligence on its part in the performance of its services which constituted its regular business. If there is any ambiguity in the policy it must be construed against the insurance company.' (Parentheses ours.) (171 F.Supp. l.c. 748.) We rule that the terms of the policy fully protected plaintiffs against liability for acts of negligence committed by them or by their subcontractor during the performance of the contract. * * * In the cases analyzed hereinbefore and relied on by this court it is stated that the exclusions and exceptions relied upon by the insurer to escape liability were not stated with clearness and precision, thereby defining the limits of its obligation therein. These courts found in an analysis of the exclusions and exceptions that they clearly demonstrate an ambiguity and vagueness which under well settled jurisprudence must be construed against the insurer. This is a cardinal rule of construction in connection with determining the coverage of an insurance policy and needs no further citation of authority." 380 S.W.2d l.c. 506, 507.
Cases cited in Kissel which support the conclusions therein are McAllister v. Century Indemnity Co. of Hartford, 24 N.J. Super. 289, 94 A.2d 345, Kendrick v. Mason, 234 La. 271, 99 So. 2d 108, Hercules Company, Inc. v. Royal Indemnity Co., D.C., 171 F. Supp. 746, Neilson v. Travelers Indemnity Co., D.C., 174 F. Supp. 648 (opinion adopted by U.S. Court of Appeals, 8 Cir., 277 F.2d 455), Hoffman & Klemperer Co. v. Ocean Accident & Guarantee Corp., 292 F.2d 324 (7th Cir.1961), and McNally v. American States Ins. Co., 308 F.2d 438 (6th Cir.1962).
We approve the holding and reasoning in the Kissel case and rely upon it as authority supporting our conclusion herein. We do recognize, however, that there is one possible factual difference between Kissel and the case at bar. In Kissel the *244 court attached considerable significance to the fact that the plaintiff, a contractor, did not sell any products. In our case it is fair to assume that the plaintiff probably manufactured and installed some elevators, although undoubtedly a large portion of its business (as in this case) consisted of servicing existing elevators. In one sense of the word plaintiff did handle a product. However, an elevator is one large item which, when installed, became a part of the building. In that view of the situation plaintiff would be in the same category as contractors and subcontractors which, in Kissel, were held to be performing services and not handling "products" as that word is generally understood. In that connection, see Heyward v. American Casualty Co. of Reading, Pa., D.C., 129 F. Supp. 4, in which a products liability exclusion similar to the instant one was held not to preclude coverage for the insured, a plumbing and heating contractor, for accidents arising either before or after the housing project had been completed. We have concluded that the instant case and Kissel are sufficiently alike factually as to make Kissel applicable in determining the issue here.
Another provision in the policy tends to add to the difficulty in understanding it. Under "Exclusions," it is provided that "this policy does not apply: (a) to liability assumed by the insured under any contract or agreement except (1) a contract as defined herein * * *." "Contract" is defined in the policy as, "if in writing, a lease of premises, easement agreement, agreement required by municipal ordinance, sidetrack agreement, or elevator or escalator maintenance agreement." It therefore appears that some sort of liability relating to written contracts for elevator maintenance is covered by the policy. It is not apparent just what that coverage is and it may be, under the general insuring clause, that it would cover the type of negligence alleged in the Rowe suit. We need not determine that question but mention it simply to demonstrate the ambiguity of the policy as relates to the situation before us.
We hold that subparagraph (2), supra, when considered as a part of a definition of "products hazard"when considered in connection with the "Contracts" provisions, supraand when sought to be applied to the factual situation here involved, is misleading and ambiguous and therefore will be construed most favorably to the insured. When so construed we hold that it did not exclude coverage in this case and that defendant was obligated to defend Rafiner in the Rowe suit.
The judgment is reversed and the cause remanded with directions to enter a judgment for plaintiff.
All concur and STONE, Special J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563041/ | 960 A.2d 189 (2008)
MET-ED INDUSTRIAL USERS GROUP and Penelec Industrial Customer Alliance, Petitioners
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent
Metropolitan Edison Company and Pennsylvania Electric Company, Petitioners
v.
Pennsylvania Public Utility Commission, Respondent
Irvin A. Popowsky, Consumer Advocate, Petitioner
v.
Public Utility Commission, Respondent.
Nos. 587 C.D. 2007, 700 C.D. 2007, 701 C.D. 2007
Commonwealth Court of Pennsylvania.
Argued September 10, 2008.
Decided November 7, 2008.
*192 Charis Mincavage, Harrisburg, for petitioners.
Lawrence F. Barth, Asst. Counsel, Harrisburg, for respondent.
John F. Povilaitis, Harrisburg, for Intervenor, Pennsylvania Electric Company.
Linda Richardson Evers, Reading, for Intervenor, Metropolitan Edison Company.
Daniel G. Asmus and Lauren M. Lepkoski, Harrisburg, for Intervenor, Office of Small Business Advocate.
Joel H. Cheskis and Aron J. Beatty, Harrisburg, for Intervenor, Office of Consumer Advocate.
BEFORE: LEADBETTER, President Judge, and McGINLEY, Judge, and FRIEDMAN, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge, and BUTLER, Judge.
OPINION BY Judge FRIEDMAN.
Met-Ed Industrial Users Group and Penelec Industrial Customer Alliance (together, Customers), Metropolitan Edison Company and Pennsylvania Electric Company (together, Utilities) and Irvin A. Popowsky, Consumer Advocate (OCA[1]), petition for review of the January 11, 2007, order of the Pennsylvania Public Utility Commission (PUC). We affirm.
In April 2006, the Utilities filed with the PUC Petitions for Approval of a Rate Transition Plan. The Customers and the OCA filed Formal Complaints in opposition to certain aspects of the plan, and the PUC ordered that Administrative Law Judges (ALJs) hold hearings on the matters. (PUC op. at 3-4, 6.)
After considering the issues, the ALJs issued a recommended decision addressing the questions raised about the plan. The Customers, the OCA and the Utilities each filed exceptions with the PUC, which disposed of the exceptions in its January 11, 2007, opinion and order. The parties each *193 sought reconsideration, but the PUC denied the requests with respect to the issues before us here. Now, the Customers, the OCA and the Utilities each petition this court for review of the PUC's determinations.[2]
I. Utilities Issues
A. Generation Rate Cap Exception
1. Background
The restructuring of the electric utility industry under the Electricity Generation Customer Choice and Competition Act (Competition Act), 66 Pa.C.S. §§ 2801-2812, separated the three traditional functions of electric utilities, i.e., the generation, transmission and distribution of electricity. With the separation of these functions, Pennsylvania residents were able to choose to purchase their electricity from an electric generation supplier other than the local utility. If consumers did not make a choice, the local utility was required to provide them with electricity as the Provider of Last Resort (PLR). ARIPPA v. Pennsylvania Public Utility Commission, 792 A.2d 636 (Pa.Cmwlth. 2002), appeal denied, 572 Pa. 736, 815 A.2d 634 (2003).
Rate caps were established in exchange for utilities being able to recover their transition or stranded costs from ratepayers. Id. The rate caps for electric transmission and distribution expired on December 31, 2004, but the rate cap for electric generation will not expire until December 31, 2010. (PUC's op. at 28.) Until that time, a utility may request an exception to the generation rate cap where the "utility is subject to significant increases in the unit rate of fuel for utility generation or the price of purchased power that are outside of the control of the utility and that would not allow the utility to earn a fair rate of return." 66 Pa.C.S. § 2804(4)(iii)(D).
Here, the Utilities sought an exception to the generation rate cap, claiming that they are subject to significant increases in the price of purchased power that are outside of their control. In support of their request, the Utilities presented evidence showing that they had entered into various long-term contracts for base load PLR power but that those contracts did not cover the Utilities' peak load PLR supply needs. To meet peak load needs, the Utilities entered into a Partial Requirements Agreement with FirstEnergy Solutions (FES Agreement), an electric generation affiliate of the Utilities' parent corporation, FirstEnergy Corporation (FirstEnergy). The term of the FES Agreement was one year, after which FES had the ability to terminate the agreement on short notice. The FES Agreement worked well while the market cost of power was below rate cap levels. However, when it appeared that the cost of power would remain above rate cap levels, FES terminated the agreement.
Relying on this court's holding in ARIPPA, the PUC denied the Utilities' request for an exception, ruling that the Utilities failed to establish that the increases in the price of purchased power were outside of the control of the Utilities. The PUC found that the Utilities had control over their decision to enter into the FES Agreement, which allowed FES to terminate the agreement before the rate cap expiration date and to leave the Utilities *194 without sufficient peak load PLR power. Although the Utilities argued that it was not possible for them to enter into long-term contracts for peak load PLR power, the PUC found that the Utilities could have entered into a full requirements contract for both base load and peak load PLR needs, instead of a partial requirements contract with FES.
2. ARIPPA
Before this court, the Utilities first argue that the PUC erred in relying on ARIPPA because the facts in ARIPPA are distinguishable from the facts in this case. We agree that the facts in ARIPPA are not identical to those before the court here; nevertheless, the holding in ARIPPA is instructive.
In ARIPPA, this court affirmed the PUC's approval of the merger of GPU, Inc. (GPU) with FirstEnergy.[3] This court also reviewed the PUC's decision to grant GPU's request for an exception to the electric generation rate cap based on the PUC's determination that increases in the price of purchased power were outside of GPU's control.
In seeking an exception in ARIPPA, GPU asserted that: (1) GPU was required to provide PLR power to more consumers than envisioned at the time of the restructuring of the electric utility industry; (2) prior to its merger with FirstEnergy, GPU made a reasonable and prudent decision to sell all of its electric generation assets; (3) thus, GPU needed to purchase electric generation on the open market to meet its PLR obligations; (4) wholesale electric prices climbed well above the levels of the capped rates; and (5) GPU had no control over the volatility of those market prices.
This court concluded that GPU failed to establish that it was subject to price increases that were outside of its control. In reaching that conclusion, this court stated:
[T]he term "outside of the control" does not mean[ ] that ratepayers will act as the surety for companies that act to maximize their return, and not, as other utilities did, to protect their exposure from known and definable obligations.
An event "outside of the control" of a person or group typically refers to sudden illness, fire, theft, acts of God and natural disasters, not situations where a party can take actions to protect himself or herself from risk. Strategic business planning always involves decisions on how much risk to accept and where the burden of risk is placed. In this case, GPU Energy made a choice to divest itself of its generation assets and, unlike other utilities, not to protect itself by entering into long-term contracts within the rate caps to protect itself from PLR costs. Instead, it made a bet that electric rates would remain below the rate caps and chose to maximize its profits. This was not an event outside of its control, but a conscious business decision. The General Assembly did not intend that if a utility lost money on choices it made, it would be allowed to recover more in rates. As Commissioner Brownell stated, "the statute did not establish a `heads I win, tails you lose' construct." Because an event that is "outside of the control" does not mean the results of business decisions, it was plainly erroneous for the [PUC] to allow revenues to be increased above the legislatively mandated rate caps.
*195 ARIPPA, 792 A.2d at 665-66 (citation omitted). Thus, here, to obtain an exception to the electric generation rate cap under ARIPPA, the Utilities needed to prove that they were not subject to increased prices as a result of their own business decisions.
3. Availability of Long-Term Contracts
The PUC found that the Utilities could have entered into long-term contracts for PLR power and, thus, concluded that the Utilities were subject to increased prices as a result of their own business decisions. The Utilities argue that the record lacks substantial evidence to support the PUC's finding that the Utilities could have entered into long-term contracts for PLR power.[4] We disagree.
Richard La Capra, an energy industry consultant, testified on behalf of the OCA that:
[A]fter the merger with FirstEnergy, the [Utilities'] ability to provide [PLR] service at capped rates was clearly enhanced. At that point, due to the merger with a company with generation assets, [the Utilities] were in essentially the same position as other Pennsylvania utilities such as PECO, PPL and West Penn Power who entered into long-term contracts with their affiliate generation companies to meet their [PLR] load at capped rates.
(R.R. at 203a, 224a.) La Capra elaborated, stating:
PPL conducted a procurement process to obtain its [PLR] supply through 2009, the end of the rate cap for PPL. As a result of this process, [PPL] entered into a full requirements contract with its affiliate for the provision of power supply to meet its [PLR] obligation through 2009. The PPL contract with its affiliate did not contain a termination clause like [the FES Agreement].
(R.R. at 226a-27a.) La Capra also explained:
[The FES Agreement] was not an arms length transaction and it could have been anticipated that if market prices rose, the interest of [FirstEnergy] stockholders would clash with that of the [Utilities'] customers. . . . This is clearly a risk that was undertaken with a clear view of the various outcomes.
(R.R. at 226a.) According to La Capra, the Utilities "could have locked in longer term contract(s) with [FES,] their post-merger affiliate," (R.R. at 227a); moreover, the Utilities' own evidence shows that "there were contracts available around the time of the merger, and shortly thereafter, for extended time periods at prices at or below the rate caps," (R.R. at 228a; see also R.R. at 144a-45a).
This credible testimony by La Capra constitutes substantial evidence to support the PUC's finding that the Utilities could have entered into long-term contracts for PLR power but, instead, made a business decision to enter into a short-term contract with affiliate FES, betting that the market price of power would not exceed the rate cap before the rate cap expired. Thus, the Utilities cannot prevail on this issue.
B. Consolidated Tax Savings
1. "Actual Taxes Paid" Doctrine
The Utilities do not file federal income tax returns on a stand-alone basis. Instead, the Utilities file their federal return *196 as part of a consolidated group under their parent corporation, FirstEnergy. In filing its federal return, FirstEnergy offsets the positive taxable incomes of its subsidiaries with the negative taxable incomes of its subsidiaries, resulting in a lower net taxable income and lower tax liability.[5] (PUC op. at 98.)
"[W]here a utility realizes federal income tax savings because of its participation in a consolidated return, Pennsylvania law requires that those savings be passed on to the ratepayers by means of an adjustment to the utility's allowance for tax expense." Barasch v. Pennsylvania Public Utility Commission, 120 Pa. Cmwlth. 292, 548 A.2d 1310, 1311 (1988). This principle of law is known as the "actual taxes paid" doctrine. Id. Stated differently, "[a]ll tax savings arising out of participation in a consolidated return must be recognized in ratemaking, otherwise we would be condoning the inclusion of fictitious expenses in the rates charged to the ratepayers."[6]Id. at 1313 (quoting Barasch v. Pennsylvania Public Utility Commission, 507 Pa. 561, 568, 493 A.2d 653, 656 (1985)).
2. Merger Debt Interest
When GPU merged with FirstEnergy, FirstEnergy incurred merger debt by paying an acquisition premium, i.e., an amount above the book value of GPU. As a condition of approving the merger, the PUC prohibited the Utilities from recovering the acquisition premium, i.e., the merger debt, from ratepayers.
The PUC based this condition on City of York v. Pennsylvania Public Utility Commission, 449 Pa. 136, 295 A.2d 825 (1972), in which our supreme court held that, in considering whether to approve the merger of utilities, the PUC must consider the effect that the proposed merger is likely to have on future rates to consumers. In addition to this holding, our supreme court addressed an argument made by the opponents of the merger that, as a result of refinancing necessitated by the merger, the surviving company would have interest *197 costs on the merger debt that it would charge to consumers. On this matter, our supreme court held that a utility may not collect merger debt interest from its customers. Id.
Clearly, then, the Utilities cannot recover their merger debt or merger debt interest from ratepayers. Nevertheless, the Utilities proposed to the PUC that, in order to properly balance the interests of ratepayers and utilities in the determination of a just and reasonable rate,[7] the PUC should exclude the Utilities' merger debt interest from the calculation of the Utilities' consolidated tax savings. The PUC rejected this proposal based on the "actual taxes paid" doctrine.
3. Equitable Exception
In their appeal to this court, the Utilities acknowledge that the PUC, in rejecting their proposal, simply applied the "actual taxes paid" doctrine. However, the Utilities ask this court to recognize an equitable exception to the "actual taxes paid" doctrine where there has been a merger, and, as a "penalty," the utilities may not recover merger debt from ratepayers. (Utilities' reply brief at 21-23.) In making this argument, the Utilities assert that their proposal to the PUC to remove merger debt interest from the calculation of consolidated tax savings is not the same as a proposal to amortize the merger debt through the rates charged to customers. (Utilities' reply brief at 22.)
We decline to recognize such an exception. In City of York, our supreme court made clear that, where there is a merger, merger debt interest may not be collected from ratepayers. Although the Utilities characterize the PUC's refusal to allow them to collect their merger debt from ratepayers as a "penalty" and the refusal to remove merger debt interest from the consolidated tax savings calculation as an extension of that "penalty," disallowing the collection of merger debt interest from ratepayers is the law under City of York, not a "penalty."[8] Thus, there is no equitable basis for an exception to the "actual taxes paid" doctrine based on a utility's inability to recover merger debt from ratepayers.
II. OCA/Customers Issues
A. Transmission Service Charge Rider
As indicated above, the rate cap for electric generation will expire on December 31, 2010, but the rate cap for electric transmission already has expired. With the expiration of the electric transmission rate cap, the Utilities proposed removing transmission costs from their base rates and establishing a reconcilable Transmission Service Charge (TSC) Rider.[9]
1. Congestion Costs
The Utilities also proposed including congestion costs in the TSC Rider. Congestion occurs when electricity flowing over one portion of a transmission grid nears capacity. To deal with congestion, *198 the Utilities use the transmission services of PJM Interconnection, LLC (PJM). PJM manages congestion for electric utilities through its Open Access Transmission Tariff (OATT), which has been approved by the Federal Energy Regulatory Commission (FERC). PJM manages congestion by dispatching electric generation under its control. PJM initially provides electric generation to the Utilities from the lowest cost electric generating unit, but, when congestion occurs, PJM shifts electric generation to a more expensive generating unit. To reduce such congestion costs, PJM recently authorized $1.3 billion for electric transmission upgrades.
Although there is a generation cost associated with congestion on a transmission grid, the PUC approved the inclusion of congestion costs in the TSC Rider as transmission costs because: (1) the Utilities pay PJM for transmission services pursuant to the OATT, a transmission tariff; (2) the OATT includes a specific charge for transmission congestion, and the OATT bill that the Utilities receive from PJM contains a separate charge for transmission congestion; (3) there would be no costs associated with PJM's switching of electric generators but for the congestion on the transmission grid; and (4) congestion costs are reduced by transmission upgrades, not generation upgrades.
a. Transmission or Generation Costs
The OCA and the Customers argue that the PUC improperly approved the inclusion of congestion costs in the TSC Rider as transmission costs. The OCA and the Customers contend that, because there is a generation cost associated with congestion on a transmission grid, congestion costs should be considered generation costs and be subject to generation rate caps. We disagree.
Section 2803 of the Competition Act defines "Transmission and distribution costs" as follows:
All costs directly or indirectly incurred to provide transmission and distribution services to retail electric customers. This includes the return of and return on facilities and other capital investments necessary to provide transmission and distribution services and associated operating expenses, including applicable taxes.
66 Pa.C.S. § 2803. Here, the cost of switching electric generators and the cost of upgrading transmission facilities are costs directly or indirectly incurred to provide transmission services to customers. Thus, the PUC did not err in concluding that congestion costs belong in the TSC Rider as transmission costs.[10]
b. Federal Preemption
The Customers argue that the PUC's inclusion of congestion costs in the TSC Rider as transmission costs is contrary to decisions of the FERC and that the FERC's federal decisions preempt the PUC's determination. The PUC argues that the Customers failed to raise federal preemption as an issue before the PUC, and, thus, the matter is waived pursuant to Pa. R.A.P. 1551(a) (stating that, ordinarily, no question shall be considered that was not raised before the government unit). The Customers assert that they raised concerns about a conflict with FERC on pages 3 to 7 of the exceptions they filed with the PUC and elsewhere. (Customers' *199 reply brief at 15-16.) However, we have examined all pages cited by the Customers and have found no preemption argument. (R.R. at 876a-80a.) Thus, the matter is waived.
c. Violation of Section 2805(a)
The Customers argue that the PUC's inclusion of congestion costs in the TSC Rider as transmission costs violates section 2805(a) of the Competition Act.[11] The PUC argues that the Customers failed to raise a section 2805(a) issue before the PUC, and, thus, the matter is waived. The Customers acknowledge that they "did not specifically cite this section of the Competition Act" in their arguments before the PUC, but they contend that this failure should not render their argument waived. (Customers' reply brief at 17 n. 12.) We disagree. Because the Customers failed to mention section 2805(a) in their arguments before the PUC, it was not possible for the PUC to examine the statutory provision, consider any argument based on the provision and make a determination. Thus, the matter is waived.
d. Re-bundling of Rates
The Customers argue that the PUC's inclusion of congestion costs in the TSC Rider as transmission costs constitutes an inappropriate re-bundling of rates and a violation of the generation rate cap. However, this argument assumes that the PUC erred in concluding that congestion costs are transmission costs rather than generation costs. We have determined that the PUC did not err in that regard; therefore, the Customers cannot prevail on this argument.
B. 2006 Deferred Transmission Costs
1. Background
In May 2006, the PUC granted a request by the Utilities to defer, for accounting and financial reporting purposes, incremental transmission charges that they would incur during 2006 under PJM's OATT. The Utilities stated that they would incur the costs primarily as a result of the expansion of PJM in 2004 and 2005 under a Regional Transmission Expansion Plan (RTEP) approved by FERC. PJM's expansion involved integration of five control zones, which required that PJM add transmission and generation resources that had new cost structures, load requirements and transmission characteristics. PJM's addition of new resources changed patterns of congestion, causing congestion costs to increase 179% for 2005. Moreover, congestion costs for 2006 were forecast to be 450% above 2004 levels.[12] (R.R. at 133a, 136a-37a.)
2. Retroactive Recovery
In the matter before us here, the Utilities sought approval from the PUC to retroactively recover the 2006 transmission costs. The PUC granted approval, and the OCA now argues that the PUC erred in doing so. We disagree.
In Popowsky v. Pennsylvania Public Utility Commission, 868 A.2d 606 (Pa.Cmwlth.2004)(Popowsky II), this court set forth a three-pronged approach for determining whether a utility should be *200 permitted to recover its expenses retroactively. First, we consider whether the costs arose out of an inaccurate projection of costs in an earlier rate proceeding,[13] whether the costs were anticipated and whether they were imposed on the utility from the outside. Second, we evaluate the extraordinary nature of the costs, including whether they are non-recurring expenses arising from a one-time event and whether they are legitimate operating expenses that will never be recovered if retroactive recovery is denied. Finally, we analyze whether the utility claimed the expenses at the first reasonable opportunity and whether the utility can absorb the expenses with the current revenue from its existing tariff. Id.
As for the first prong, the 2006 transmission charges did not arise out of an inaccurate projection of costs in earlier rate proceedings.[14] Rather, the charges arose out of PJM's expansion in 2004 and 2005. Although the Utilities were aware of PJM's expansion before 2006, they did not anticipate the impact of the expansion on their congestion costs in 2006.[15] Moreover, inasmuch as the costs were imposed upon the Utilities by PJM as a result of expansion, the costs were imposed from the outside. Thus, the Utilities have satisfied the first prong.
As for the second prong, the 450% increase in congestion costs resulting from PJM's integration of five different systems is an extraordinary increase.[16] That increase resulted from PJM's expansion, a one-time event; thus, the costs are non-recurring. Moreover, the costs are legitimate operating expenses under the OATT, and, because the Utilities' new rates will not go into effect until 2007, the Utilities will not be able to recover their 2006 transmission costs if retroactive recovery is denied. Thus, the Utilities have satisfied the second prong.
Finally, the Utilities requested recovery of the 2006 transmission costs in April 2006, once they had a forecast of their 2006 costs. (See R.R. at 91a, 101a-03a, 111a, 120a-22a, including an exhibit showing actual costs for 2005 and budgeted costs for 2006.) We agree with the PUC that the Utilities thus claimed the 2006 expenses at the first reasonable opportunity. Moreover, there is no evidence that the Utilities can absorb the 2006 expenses from current revenues. Therefore, the Utilities satisfied the third prong.
Because the Utilities satisfied the three prongs for retroactive recovery set forth in Popowsky II, the OCA cannot prevail on this issue.
*201 3. Carrying Charges
In allowing the Utilities to retroactively recover their 2006 deferred transmission costs, the PUC also permitted the Utilities to recover their carrying charges, i.e., interest. The Office of Small Business Advocate (OSBA), an intervenor here, argues that the PUC erred in permitting the recovery of carrying charges.
The PUC and the Utilities argue that this issue is waived because the actual petitioners in this case did not challenge the PUC's allowance of interest in their petitions for review. The OSBA claims that the OCA and the Customers raised the issue in their petitions for review by stating that the PUC allowed the Utilities to recover their 2006 deferred transmission costs with interest. (OSBA's reply brief at 7.) However, we have reviewed the petitions for review, and neither the OCA nor the Customers object to the PUC's allowance of interest in their statement of objections to the PUC's order.[17] Thus, the matter is waived.[18]
C. Universal Service Cost Rider
The Utilities sought PUC approval of a Universal Service Cost Rider to pay for universal service programs, i.e., programs that help low-income customers to maintain electric service.[19] Although universal service programs assist residential customers only, the Utilities proposed that the Universal Service Cost Rider apply to all customer classes. The PUC approved the Universal Service Cost Rider, but the PUC ruled that the Universal Service Cost Rider would apply only to residential customers. The OCA argues that the PUC erred in limiting the Utilities' recovery of universal service costs to residential customers. We disagree.
Section 2802(17) of the Competition Act provides:
There are certain public purpose costs, including programs for low-income assistance, energy conservation and others, which have been implemented and supported by public utilities' bundled rates. The public purpose is to be promoted by continuing universal service and energy conservation policies, protections and services, and full recovery of such costs is to be permitted through a nonbypassable rate mechanism.
66 Pa.C.S. § 2802(17) (emphasis added). Section 2804(9) of the Competition Act provides, in pertinent part:
The [PUC] shall ensure that universal service and energy conservation policies, activities and services are appropriately funded.... Policies, activities and services under this paragraph shall be funded in each electric distribution territory by nonbypassable, competitively-neutral cost-recovery mechanisms that *202 fully recover the costs of universal service and energy conservation services.
66 Pa.C.S. § 2804(9) (emphasis added).
The OCA argues that the word "nonbypassable" in these sections means that the rate mechanism may not allow any customer class to by-pass a contribution to the cost of universal service programs. In making this argument, the OCA relies upon this court's decision in Lloyd v. Pennsylvania Public Utility Commission, 904 A.2d 1010 (Pa.Cmwlth.2006), appeal denied, 591 Pa. 676, 916 A.2d 1104 (2007).
In Lloyd, this court considered an argument that the Sustainable Energy Fund (SEF) programs should not be funded through electric distribution rates because the SEF programs benefit electric generation, not electric distribution, service.[20] This court commented that the Competition Act "only provides that it be funded by `non-bypassable rates' without any requirement that it be by a rate that is directly benefited by the program." Id. at 1027. Thus, under Lloyd, there is no statutory requirement that the funding for special programs come only from those who benefit from the programs. However, the lack of such a requirement does not mean that funding for special programs must come from those who do not benefit. In fact, in Lloyd, this court pointed out that, according to the credible evidence, SEF programs do benefit distribution service. Therefore, SEF programs are funded by those who benefit from them. Clearly, then, Lloyd is not dispositive here.
The PUC contends that the OCA has taken the term "nonbypassable" out of context. The ALJs, with whom the PUC agreed, stated:
In the context of a regulatory environment in which there is retail competition, a nonbypassable charge is one in which customers pay the charge whether they "shop" for generation supply or take service under [PLR] rates from an EDC. A nonbypassable charge would generally require that the charge be recovered in a rate that is paid by all customers in the class, both shopping and non-shopping. Such a charge does not imply an allocation scheme in which costs are assigned to all rate classes. Rather, in the context of the Competition Act, a nonbypassable charge means that universal service costs that were in the bundled rates for a particular customer class should remain within that class after rate unbundling. Specifically, if universal service costs were recovered only from residential customers prior to unbundling, as they were, then all residential customers should continue to pay these costs regardless of whether a residential customer begins shopping or does not shop.
(R.R. at 859a-60a) (emphasis added).
When statutory language is not clear, this court may defer to an administrative agency's interpretation to ascertain legislative intent. Pennsylvania Power Company v. Public Utility Commission, 932 A.2d 300 (Pa.Cmwlth.2007). Here, it is reasonable to interpret the word "nonbypassable" in the context of de-regulation. The Competition Act allowed consumers to shop, or not, for electricity, and, prior to de-regulation, residential customers funded universal service costs. Thus, in sections 2802(17) and 2804(9) of the Competition Act, "nonbypassable" reasonably means that residential consumers cannot by-pass their prior funding of universal service costs by their choice, or non-choice, of an electric generation supplier. Inasmuch as the PUC's interpretation of *203 the word "nonbypassable" in the Competition Act is reasonable, we shall defer to it.[21]
Accordingly, we affirm.
ORDER
AND NOW, this 7th day of November, 2008, the order of the Pennsylvania Public Utility Commission, dated January 11, 2007, is hereby affirmed.
NOTES
[1] The Consumer Advocate heads the Office of Consumer Advocate, which has a statutory duty to represent the interest of consumers before the Pennsylvania Public Utility Commission. Section 902-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, added by section 1 of the Act of July 9, 1976, P.L. 903, as amended, 71 P.S. § 309-2.
[2] In addition to the parties, the Office of Small Business Advocate and The Commercial Group have filed briefs as intervenors. Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
[3] At the time of the merger, GPU held the Utilities as subsidiaries. Thus, after the merger, FirstEnergy became the parent company of the Utilities, and the Utilities became wholly-owned public utility subsidiaries of FirstEnergy.
[4] The Utilities also argue that they presented substantial evidence to establish that long-term contracts for peak load PLR power were not available. However, it is beyond the scope of this court's review to consider whether the record contains substantial evidence to support findings not made by the PUC.
[5] In Barasch v. Pennsylvania Public Utility Commission, 120 Pa.Cmwlth. 292, 548 A.2d 1310, 1312 (1988) (citation omitted), this court explained:
When consolidated tax returns are used, each subsidiary of a parent corporation calculates its separate income, deductions, tax liability and tax credits on a stand-alone basis. However, the subsidiary does not then file a separate federal income tax return or pay the calculated tax to the Internal Revenue Service (IRS). Rather, the subsidiary submits its calculations . . . to the parent corporation. As is permitted by [law], the parent corporation then offsets taxable income generated by some subsidiaries with tax losses and credits generated by other subsidiaries to arrive at a figure representing the taxable income of the consolidated group.
[6] To determine "actual taxes paid" in the ratemaking context, the PUC is required to use the "modified effective tax rate" method.
An effective tax rate method calculates the consolidated tax savings by determining the difference between the total of the stand-alone tax liabilities of all of the members of the consolidated group and the tax actually paid after offsetting of income because of consolidation and then allocates those savings among all of the members. The rationale of this method is that, because the parent pays tax at the marginal rate but on an amount of income reduced by consolidated offsetting, the parent, and in turn the subsidiaries, should be viewed as paying at an "effective" tax rate that is below what they would have paid if the tax had been calculated by applying the marginal tax rate to the full income of each member on a stand-alone basis.
Barasch, 548 A.2d at 1313-14. The "modified" effective tax rate method makes modifications to avoid any flow-through of investment tax credits or accelerated depreciation benefits, which would violate federal tax law. Id.
[7] In determining just and reasonable rates, the PUC has discretion to determine the proper balance between the interests of ratepayers and utilities. Popowsky v. Pennsylvania Public Utility Commission, 542 Pa. 99, 665 A.2d 808 (1995).
[8] We note that the removal of merger debt interest from the consolidated tax savings calculation would result in the ratepayers paying some portion of the Utilities' merger debt interest, which would be contrary to City of York.
[9] The Utilities would reconcile the TSC Rider each year to determine whether the Utilities collected more than enough or not enough from its PLR customers to cover transmission charges. (R.R. at 91a.)
[10] The OCA also argues that Financial Transaction Rights (FTRs) and Auction Revenue Rights (ARRs), which are financial tools that the Utilities use to mitigate their congestion costs risk, should be considered generation costs rather than transmission costs. However, having concluded that congestion costs are properly considered transmission costs, we also conclude that FTRs and ARRs are properly considered transmission costs.
[11] 66 Pa.C.S. § 2805(a). Section 2805(a) of the Competition Act requires that the PUC work with the federal government to establish independent system operators to operate the transmission system and interstate power pools and to ensure the continued provision of adequate, safe and reliable electric service to the citizens and businesses of the Commonwealth.
[12] We note that PJM expected its planned transmission upgrades to significantly reduce congestion costs in future years. (R.R. at 137a.)
[13] The PUC may not allow utilities to recover deficits created by inaccuracies in its prior rate authorizations. Popowsky II.
[14] The PUC found that the Utilities' last rate proceedings occurred in 1992 and 1986. (R.R. at 847a.)
[15] In 2004, the Utilities concluded that they could not absorb transmission costs using the base rates. (R.R. at 134a.) Thus, in January 2005, after the transmission rate cap expired, the Utilities filed with the PUC a request to defer 2005 transmission costs beginning January 1, 2005. (R.R. at 134a-35a.) However, in April 2006, the Utilities decided to absorb 2005 costs and seek to recover only the 2006 transmission costs. (R.R. at 135a.)
[16] The OCA argues that transmission costs are not extraordinary but, rather, are usual and recurring costs of business. The OCA contends that, to be extraordinary expenses, the expenses must result from an act of God or a terrorist attack, not from congestion problems related to the expansion of transmission facilities. (OCA's brief at 23.) However, we agree with the PUC that a 450% increase in congestion costs is extraordinary and that the particular difficulties of the PJM expansion in this case render the increased expense a non-recurring one.
[17] Indeed, in challenging the recovery of 2006 deferred transmission costs in their briefs, neither the OCA nor the Customers argue in the alternative that, even if the PUC properly allowed the recovery of the deferred costs, the PUC improperly allowed the recovery of carrying charges.
[18] See Pa. R.A.P. 1513(d) (stating that a petition for review shall contain a general statement of the objections to the determination and that the general statement will be deemed to include every subsidiary question fairly comprised therein); Pa. R.A.P. 2102 (stating that, for purposes of briefing and argument, intervenors shall be subject to the rules applicable to the party on whose side the intervenor is principally aligned); Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa.Cmwlth. 1997) (stating that, when a petitioner fails to raise an issue in the petition for review, it is considered waived).
[19] See section 2803 of the Competition Act, 66 Pa.C.S. § 2803 (defining "Universal service and energy conservation" to include programs that help low-income customers to maintain electric service).
[20] The SEF is a fund to promote the development and use of renewable energy and clean energy technologies, energy conservation and efficiency. Lloyd.
[21] We also note that the Competition Act defines the term "Competitive transition charge" as a "nonbypassable charge applied to the bill of every customer...." 66 Pa.C.S. § 2803. If the legislature intended a "nonbypassable" charge to be one that every customer must pay, regardless of customer class, then it made no sense for the legislature to add "applied to the bill of every customer" in this definition. The word "nonbypassable" would have been sufficient by itself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563086/ | 95 F.2d 976 (1938)
STRECKER
v.
KESSLER, District Director of Immigration and Naturalization.
No. 8680.
Circuit Court of Appeals, Fifth Circuit.
April 6, 1938.
C. A. Stanfield, of Hot Springs, Ark., for appellant.
Leon D. Hubert, Jr., Asst. U. S. Atty., of New Orleans, La., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
HUTCHESON, Circuit Judge.
Appellant, an alien, was held for deportation, upon a warrant finding him subject to deportation, under the Act of October 16, 1918, as amended by the Act of June 5, 1920, 8 U.S.C.A. § 137, in that he believes in or advocates or is a member of an organization that believes in, advises, advocates, or teaches, is a member of an organization that writes, publishes, or circulates written or printed matter advising or teaching, the overthrow by force and violence of the government of the United States. He applied for and obtained a writ of habeas corpus upon Eugene Kessler, District Director, who had him in custody. Afterwards, upon a hearing, there was an order discharging the writ, and remanding appellant for deportation. This appeal tests whether that order was rightly entered.
Appellant contends both that the hearings upon which the deportation order was based were so unfair as to constitute a denial of justice, and that the findings are without support in the evidence.
*977 We find nothing essentially unfair about the hearings; as deportation hearings go, they were conducted with ordinary fairness. We agree with appellant, however, that the purported finding that he believes in and teaches, and belongs to or did belong to, an organization which believes in and teaches the overthrow by force and violence of the government of the United States, is without any support in the evidence, is a mere fiating. The proceedings as a whole, and the questioning and summary in particular, are dramatic illustrations of the tyranny of labels over certain types of mind. The evidence, and the only evidence relied on for the finding and order, is that during the presidential campaign of 1932, when one Foster was running as the white, and one Ford as the colored, candidate of the Communist Party of America, for President of the United States, appellant, in November, 1932, became a member of the Communist Party and accepted certain literature of the Communist Party for distribution. He testified that he was a member of the Communist Party of America until February, 1933, when he quit paying his dues, and that since that time he has not been a member. He did not testify, nor did any one else, that he believed in the overthrow by force and violence of the government of the United States, neither did he, nor any one else, testify that the organization he had belonged to, the Communist Party of America, taught, advocated, or incited such overthrow. None of the literature which he was supposed to have circulated in 1932 was introduced, but his book of membership in the Communist Party in the United States was. Not a word in this membership book advocated, incited, or even suggested that the government of the United States should be overthrown by force or violence. It did teach that the party is the vanguard of the working class; that it incorporates the whole body of experience of the proletarian struggle basing itself upon the revolutionary theory of Marxism, and representing the general and lasting interests of the whole of the working class. The record contained also, offered by the Bureau, extracts from a copy of the "Communist" dated April 1934, "8th Convention issue, a magazine of the theory and practices of Marxism and Leninism, published monthly by the Communist Party in the United States of America." Not a single extract from this magazine referred to the government of the United States of America directly or indirectly. There is a discussion in it of Austro-Marxism. There is, too, the cynical suggestion that the proletariat should learn the sly ways of the bourgeoisie to become masters of politics and of laws, so that "legality," instead of "killing the proletariat," would "kill the bourgeoisie," and the statement that the final overthrow of capitalism could not be accomplished without a mobilization of the workers for the struggle against it. There is, too, the general statement that the question of a violent revolution lies at the root of the whole of Marx's teachings, and that only Philistines or downright opportunists can talk about revolution without violence.
The evidence for Strecker makes him out a small bourgeoisie, a merchant, with a little capital, some canniness, a fair amount of human kindness, some bad habits, and apparently no quarrel with the government of the United States, but only with what he regards as the evils of capitalism as such, and with grafters holding government offices. He flatly denies, and no one disputed him, that he has ever taught or believed in the unlawful destruction of property, or the overthrow by force of the United States government, and in answer to the question, "Just what do you believe in in the way of government," replied, "I believe it is best like we have it here. We have a good constitution for the people by the people. We have a lot of grafters, as you know, that should be gotten rid of." He testified that he was not an anarchist, that he was not opposed to the United States government, and that he never knowingly joined an organization the purpose of which was to destroy the government. All of the literature he received when he joined in November, as he recalled it, was political, such as "Vote Communist in the November election"; that he never believed in nor taught sabotage, or the killing or assaulting of officers because they were officers. All that was proven against Strecker was that in 1932 he joined the Communist Party, and that he answered a foolish question "Supposing that the majority of the populace of the United States were Communists, and were certain of a victory over Capitalism in an armed conflict, would you then personally bear arms against the present Government?" foolishly, according to its folly "Certainly; I would be a fool to get myself killed fighting for Capitalism." This proof does not support the finding on which the warrant was based.
*978 The statute under which these proceedings were instituted was enacted in 1918 and amended in 1920, to meet a situation caused by the crisis in Russia in 1918 and 1919, and the propaganda following that crisis for the overthrow of governments by force. It was enacted to enable the United States to expel from its shores aliens seeking a footing here, to propagandize and proselytize for direct and violent action. The decisions of the Circuit Courts of Appeal in Skeffington v. Katzeff, 1 Cir., 277 F. 129; Antolish v. Paul, 7 Cir., 283 F. 957; Ungar v. Seaman, 8 Cir., 4 F.2d 80, on the authority of which it was held in Ex Parte Vilarino, 9 Cir., 50 F.2d 582; Kjar v. Doak, 7 Cir., 61 F.2d 566, upon which the appellee relies here, that membership in the Communist Party of America alone is sufficient to warrant deportation, were rendered upon the Russian experience, and the record of the party at that time. They were all fact cases. They did not, they could not, decide that membership in the Communist Party of America, standing alone, is now sufficient to warrant deportation. The statute makes no such provision. Courts may not write it into the statute.
Much water, socially and politically, has gone under the bridge since 1920. Russia itself is more vigorously organized than almost any other country in the world, to prohibit and suppress those who teach and preach the overthrow of government by force. In this country, in the presidential elections of 1932 and of 1936, the Communist Party, seeking by political means rather than by violence, to remake the United States according to its heart's desire, into a government of the proletariat, by the proletariat, and for the proletariat, had a candidate for President. Nothing in our Constitution or our laws forbids the formation of such a party, or persons from joining them. The statute invoked here does not forbid membership in the Communist, or in any other party, except one which teaches the overthrow by force and violence, of the government of the United States.
It seems to me to be a kind of Pecksniffian righteousness, savoring strongly of hypocrisy and party bigotry, to assume and find that merely because Strecker joined the Communist Party of America, he is an advocate of, or belongs to, a party which advocates the overthrow by force and violence of the government of the United States. It seems to me, too, that the cause of liberalism is more retarded than advanced by forays for deportation on evidence like this. But whatever may be thought to be the propriety, from the standpoint of tolerance and liberalism, of this proceeding, it may not be doubted that, from the stand-point of its legality, a deportation order requires more than a mere fiating. There must be evidence in the record supporting the finding on which the order rests. Such evidence is wanting here.
The order is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
HOLMES, Circuit Judge, concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540493/ | 213 B.R. 754 (1997)
In re Alan LOUIE, Debtor.
Mychael ROBINSON, Plaintiff,
v.
Alan LOUIE, Defendant.
Bankruptcy No. 97-30448DDM, Adversary No. 97-3335DM.
United States Bankruptcy Court, N.D. California.
September 2, 1997.
*755 *756 Marty K. Courson, Welch, Olrich & Mori, San Francisco, CA, for Plaintiff.
Waukeen Q. McCoy, San Francisco, CA, Michael Fluetsch, San Rafael, CA, for Debtor/Defendant.
MEMORANDUM DECISION REGARDING CLAIMS BASED ON FEAR OF HIV/AIDS AND FOR SEXUAL BATTERY
DENNIS MONTALI, Bankruptcy Judge.
I. INTRODUCTION
In this nondischargeability adversary proceeding, plaintiff Mychael Robinson ("Robinson") *757 seeks a determination of nondischargeability of debt against debtor and defendant Alan Louie ("Louie") on a variety of theories.
For the reasons discussed below, the court will dismiss Robinson's causes of action for fraud and deceit regarding HIV/AIDS, sexual assault, and intentional infliction of emotional distress for failure to state claims upon which relief can be granted under Fed. R. Civ. Proc. 12(b)(6), made applicable by Fed. R. Bankr.Proc. 7012(b) ("Rule 12(b)(6)"). The court will deny Louie's motion to dismiss Robinson's cause of action for sexual battery, concluding that Robinson has made a sufficient showing to sustain this cause of action as a matter of law.[1]
II. BACKGROUND[2]
In 1991, Robinson and Louie met and began dating. They continued their relationship until November of 1995 when they exchanged commitment vows and moved in together. Robinson and Louie agreed to pool and share equally all of their assets. Further, they agreed that Louie would be the primary source of income and Robinson would be responsible for maintaining the household. Based on this allocation of responsibilities, Robinson closed his two businesses and Louie agreed to support him.
Robinson and Louie, who had previously engaged in protected sexual intercourse, began having frequent, high-risk, unprotected sex after Louie stated to Robinson that Robinson did not need a condom and Louie removed a condom from Robinson.
In December of 1995, Robinson discovered several bottles of Azidothymidine[3] hidden in Louie's house. Robinson confronted Louie, who then admitted that he had been HIV-positive since roughly 1984. The parties then terminated their relationship. Robinson has not become HIV-positive, having subsequently tested negative for the virus.
On October 4, 1996, Robinson filed a state court complaint (the "State Court Complaint") for fraud, intentional infliction of emotional distress, breach of partnership and breach of fiduciary duty, among other things. Thereafter, Louie filed a voluntary Chapter 7 petition and Robinson filed this adversary proceeding seeking, inter alia, that any monetary *758 liability asserted in the State Court Complaint be declared nondischargeable under 11 U.S.C. § 523(a)(6) (" § 523(a)(6)").
III. DISCUSSION
Initially, it should be noted that Louie's knowledge of his HIV status gave rise to a duty of disclosure and fair dealing with his sexual partners. This conclusion derives from both the general duty expressed in California Civil Code section 1714 (1997) that "every one is responsible not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill", as well as the more specific duty of disclosure established in cases such as Doe v. Roe, 218 Cal. App. 3d 1538, 1545, 267 Cal. Rptr. 564, 567 (1990) (duty to disclose infection with communicable disease prior to intercourse); and Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 996, 198 Cal. Rptr. 273, 276 (1984) (defendant breached duty to warn of communicable disease).[4]
If Robinson had plead that he had been infected with HIV by Louie, his causes of action for fraud, intentional infliction of emotional distress and sexual battery would unquestionably be proper and sustainable under California law. See, e.g., Doe v. Roe and Kathleen K. v. Robert B., supra. They would also survive a Rule 12(b)(6) challenge as stating, at the very least, claims under § 523(a)(6).
Robinson has plead, however, that he was exposed to, but not infected with HIV. Consequently this court must determine whether Kerins v. Hartley, 27 Cal. App. 4th 1062, 33 Cal. Rptr. 2d 172 (1994) (reviewing causes of action arising from patient's exposure to HIV by her physician, without infection) and analogously, Potter v. Firestone Tire and Rubber Co., 6 Cal. 4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993) (assessing availability of damages based on exposure to carcinogens without development of cancer) mandate the conclusion urged by Louie: that Robinson cannot express legally cognizable damages for fear of acquiring AIDS, and cannot therefore support a cause of action arising out of exposure to HIV without infection.[5]
A. Intentional Infliction of Emotional Distress
The elements of the tort of intentional infliction of emotional distress are: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Davidson v. City of Westminster, 32 Cal. 3d 197, 209, 185 Cal. Rptr. 252, 258, 649 P.2d 894 (1982). The conduct itself must be so extreme "as to exceed all bounds of that usually tolerated in a civilized community." Id.
A properly plead claim for intentional infliction of emotional distress provides the required elements of a nondischargeable debt under § 523(a)(6). See Impulsora Del Territorio v. Cecchini (In re Cecchini), 780 F.2d 1440, 1443 (9th Cir.1986) (holding that a "wrongful act . . . done intentionally, [which] necessarily produces harm, and is without just cause or excuse . . . is `willful and malicious' *759 even absent proof of a specific intent to injure").
Here, Louie acted with at least reckless disregard of the almost certain probability of causing Robinson extreme emotional distress, if not infection itself, and Robinson did, in fact, suffer extreme emotional distress as a direct result of Louie's conduct.
In Potter v. Firestone, however, the California Supreme Court stated, in the context of intentional actions which exposed the plaintiff to carcinogens, that a plaintiff must demonstrate that his fear of developing cancer is reasonable. Potter, 6 Cal.4th at 1004, 25 Cal. Rptr. 2d 550, 863 P.2d 795. This requires a showing that the "fear is based upon medically or scientifically corroborated knowledge that the defendant's conduct has significantly increased the plaintiff's risk of cancer and that the plaintiff's actual risk of the threatened cancer is significant." Id.
In Kerins, the court of appeal extended the Potter reasonable fear requirement to a case involving exposure to HIV, where there was no subsequent infection.[6]Kerins, 27 Cal.App.4th at 1075, 33 Cal. Rptr. 2d 172. See also Herbert v. Regents of the University of California, 26 Cal. App. 4th 782, 31 Cal. Rptr. 2d 709 (1994) (holding that the fear of cancer rule applies to fear of AIDS cases). The Kerins court held that because plaintiff had tested negative for HIV more than six months after exposure, the potential of HIV being present in her system but not detected by the HIV test was so minimal that her fear of contracting AIDS was unreasonable as a matter of law. Therefore plaintiff could not demonstrate legally cognizable damages for the purpose of her cause of action for intentional infliction of emotional distress. Kerins, 27 Cal.App.4th at 1075-76, 33 Cal. Rptr. 2d 172.
Although neither Potter nor Kerins address the question of whether, in HIV exposure cases, there should be emotional distress damages available for the six month window of anxiety following exposure, during which it is uncertain if exposure has actually occurred,[7] the decision in Kerins specifically overruled the court of appeal's prior decision in the same case[8] in which damages were allowed for a reasonable window of anxiety. The Kerins court definitively expressed its opinion that damages for intentional or negligent infliction of emotional distress are not available without actual infection.
Taking Kerins and Potter together, this court is required to view the question of whether Robinson has sustained legally cognizable damages, not while Robinson was suffering the distress and fear about possibly being infected with HIV, but instead after the six month window of anxiety has passed. Once Robinson received HIV negative test results, he was no longer able to sustain a cause of action for intentional infliction of emotional distress.
Robinson contends that his fear is reasonable, because it is possible that he is actually infected with HIV, even though he has not produced antibodies. This assertion does not comport with the current medical consensus that HIV testing is conclusive at six months from infection in almost 100% of cases.[9] Under Potter and Kerins, Robinson cannot state a claim for intentional infliction of emotional *760 distress, and this cause of action must be dismissed under Rule 12(b)(6).[10]
B. Fraud
Robinson charges Louie with "fraud and deceit re HIV/AIDS." He alleges that Louie owed him a duty prior to engaging in sexual relationships to disclose the fact that Louie had tested positive for HIV/AIDS and contends that the duty is based upon a fiduciary obligation arising out of the couples' special relationship and the general duty of a person with venereal disease to avoid sexual contact with uninfected persons, or at least to warn potential sex partners before sexual contact occurs, citing Doe v. Roe, supra. He alleges that Louie's positive test for HIV/AIDS was a material fact since it put Robinson at great risk, that Louie knew that the undisclosed facts were material and that the representations concerning the lack of any need to take normal precautions were false and made with intent to induce Robinson's reliance by engaging in unprotected high-risk sexual practices. Robinson alleges that he relied justifiably upon those misrepresentations, and that he would not have done so had he known the true facts. He contends that such conduct was intentional, wrongful, malicious and despicable, and carried on with a willful and conscious disregard for the rights and safety of others.
Although Robinson contends that the allegations of the State Court Complaint, if proven, establish nondischargeability under § 523(a)(6), the court will analyze the fraud allegations under traditional 11 U.S.C. § 523(a)(2) ("§ 523(a)(2)") standards.
Section 523(a)(2) provides that a debt for "money, property or services" is nondischargeable, "to the extent obtained by false pretenses, a false representation, or actual fraud." Even though a literal reading of § 523(a)(2) indicates that it applies only to "a debt for money, property or services" obtained by fraud and Robinson has not alleged that Louie obtained such "money, property, or services," the Ninth Circuit has specifically held that this section also applies to "loss to the creditor [that] the act of fraud itself created." Lee-Benner v. Gergely (In re Gergely), 110 F.3d 1448, 1453 (9th Cir.1997) (an action for alleged intentional misrepresentation of the need for an amniocentesis test fell under § 523(a)(2), even where debt was not for money obtained by fraud, but for damages resulting collaterally from the alleged fraud).
Generally, the courts have held that a cause of action for fraud under § 523(a)(2) has five necessary elements: (1) a representation; *761 (2) falsity; (3) scienter; (4) reliance; and (5) "that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made." Gergely, 110 F.3d at 1453. Similarly, California Civil Code section 3294(c)(3) (1997) defines fraud as, "an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person or property or legal rights or otherwise causing injury."
A cause of action which sets forth the elements of fraud under California law and properly alleges justifiable reliance establishes the basis for a nondischargeable debt under § 523(a)(2). It appears, therefore, that Robinson has adequately plead the required elements of his fraud cause of action. As a result of Louie's conduct, Robinson was injured in some amount, by the fear and stress from the time he learned he was exposed to HIV to the time he took an HIV test, and found he was HIV negative, and from the time following his HIV test based on his concern that he may nonetheless have been infected by Louie, but had a false-negative result.
While it would appear that Robinson has plead every element for fraud, the prevailing California law negates the fifth element that of damages caused by the fear of contracting HIV/AIDS. Kerins requires that where there is exposure to HIV without infection, the plaintiff must demonstrate that his fear of contracting HIV is reasonable, as a threshold for a legally sustainable assertion of damages.[11]
Although Louie's actions occurred in the scope of an intimate relationship, those actions are not sufficient to distinguish the present case and avoid the policy-based limitation on damages for a cause of action based on damages arising from fear of AIDS. Nonetheless, Robinson may have incurred damages other than the distress caused by the fear of AIDS as a result of the alleged fraud, such as the costs of testing and future monitoring. Potter, 6 Cal.4th at 1002-09, 25 Cal. Rptr. 2d 550, 863 P.2d 795. Therefore, although he cannot recover damages for the fear of contracting AIDS, he will be allowed to amend his complaint to allege other actual damages arising out of Louie's alleged fraudulent conduct.
C. Sexual Assault and Sexual Battery
Robinson alleges a cause of action entitled "Sexual Battery" and another entitled "Sexual Assault." The allegations of the two causes of action are the same except the sexual battery cause contains an additional allegation as to Louie's intent to make contact with Robinson's person and to harm him by engaging in unprotected sex. The sexual assault claim alleges that Louie intended to cause Robinson apprehension of harmful and offensive contact. Robinson apparently bases these causes of action on California Civil Code § 1708.5 (1997) ("C.C. § 1708.5"),[12] although he does not mention that section in *762 his complaint or in his opposition to Louie's motion.
Robinson's claim for sexual assault does not satisfy the requisites of C.C. § 1708.5. Robinson did not know, when he consented to have sex with Louie, that Louie was HIV-positive; Robinson thus could not have suffered an apprehension of sexually offensive conduct, and Louie cannot be said to have intended to cause such an apprehension, inasmuch as he was concealing the very fact that would have made the contact offensive. Therefore, Robinson cannot sustain his sexual assault claim.
Robinson's allegations of an unwanted sexual touching, however, are facially sufficient to sustain his causes of action based on the language of C.C. § 1708.5. Louie intended to have sexual contact with Robinson; the contact was harmful or offensive because it exposed Robinson to a fatal disease, and Louie knew this. By engaging in unprotected sexual contacts without informing his partner of his HIV-positive status, a sexually offensive contact resulted. To the extent Robinson was harmed by this offensive touching, the allegations of sexual battery thus state a basis for nondischargeability under § 523(a)(6). Cecchini, 780 F.2d at 1443 (§ 523(a)(6) applies to "wrongful act . . . done intentionally, [which] necessarily produces harm"). Once again, however, California case precedent raises specific problems which require further analysis: whether Kerins v. Hartley, supra, prevents Robinson from alleging "harm" and thus bars recovery for sexual battery; and whether Robinson's consent to intercourse negates the necessary lack of consent element of the sexual battery.
1. Applicability of Kerins v. Hartley.
Louie does not specifically address the sexual battery cause of action, but includes it in his fraud cause of action analysis, arguing that the sexual battery claim should be dismissed for the same lack of legally cognizable damages under Kerins.
Although the Kerins court barred a battery cause of action based on the same emotional distress limitations applicable to the intentional infliction of emotional distress and fraud claims (viz. no reasonable fear of infection), 27 Cal. App. 4th at 1076, 33 Cal. Rptr. 2d 172, Kerins will not bar Robinson in the present case for several reasons.
a. Kerins dealt with a technical battery in the scope of a surgical procedure, and, contrary to case law regarding sexual battery which has liberally allowed battery actions, California precedent limits the availability of battery causes of action arising from surgical procedures. See, e.g., Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P.2d 1 (1972) (holding that a battery cause of action is only proper where a surgeon performs a surgery to which the patient has not consented). Therefore the same inherent restrictions on a technical battery case do not apply to a sexual battery case, particularly one where the plaintiff has not consented to high risk sexual intercourse.
b. The law presumes that a plaintiff has been damaged merely by being the victim of an unwanted and offensive touching; he does not have to demonstrate additional damages to support a sexual battery cause of action. "[T]he essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body. . . ." Restatement (Second) of Torts § 18 (1965). Cf. People v. Malone, 47 Cal. 3d 1, 37, 252 Cal. Rptr. 525, 762 P.2d 1249 (1988) (describing sexual battery as an unwanted sexual advance); and, People v. Pahl, 226 Cal. App. 3d 1651, 1661, 277 Cal. Rptr. 656, 663 n. 4 (1991) (stating that the essence of the offense of sexual battery is the unwanted touching). The plaintiff does not even have to be aware of the offensive contact at the time it occurs. Restatement (Second) of Torts, § 18 (1965). See also Aetna Casualty & Surety Co. v. Sheft, 989 F.2d 1105 (9th Cir.1993), where the Ninth Circuit expressed its belief that the California Supreme Court would characterize conduct such as Louie's as "inherently harmful."[13]
*763 The essence of a battery claim, unlike the claim of emotional distress dealt with in Kerins, is not primarily to compensate the plaintiff for mental distress caused by the touching, but rather to punish the defendant for the unwanted contact.[14] Under traditional law, injury is inherent in the offensive touching, thereby "necessarily produc[ing] harm" and satisfying Cecchini (780 F.2d at 1443) and § 523(a)(6).
C. The policy reasons bolstering Kerins do not exist here. The Kerins court emphasized that allowing recovery to those who merely fear they have been infected with a disease takes money away from those who are actually suffering from the disease by dissipating a finite pool of medical malpractice insurance proceeds in payment of emotional distress claims without actual injury. Kerins, 27 Cal.App.4th, at 1072-73, 33 Cal. Rptr. 2d 172. In the case of an intentional tort between sexual partners, insurance may not generally be available and therefore this Kerins policy basis is not relevant in the present case. Moreover, the court has a competing, equally valid policy reason for allowing the sexual battery cause of action to proceed: providing a cause of action for mere exposure without infection may act as a deterrent to people who are infected and engage in high risk sex without informing their partners. (Cf. J.B. v. Bohonovsky, supra.)
Therefore although Kerins generally impacts Robinson's sexual battery cause of action, that claim can be sufficiently distinguished from one arising out of a medical procedure, so that Kerins is not controlling in this instance.
d. Finally, C.C. § 1708.5(b) directs that a person who commits a sexual battery is liable for damages ". . . including, but not limited to, general damages, special damages and punitive damages."
While Robinson may be precluded from bringing a nondischargeability action for intentional or negligent infliction of emotional distress for fear of AIDS, he is entitled to recover damages caused by the sexual battery. "In the case of many torts, such as *764 assault, battery, false imprisonment, and defamation, mental suffering will frequently constitute the principal element of damages." Merenda v. Superior Court, 3 Cal. App. 4th 1, 8-9, 4 Cal. Rptr. 2d 87 (1992), quoting State Rubbish Collectors' Assn. v. Siliznoff, 38 Cal. 2d 330, 339, 240 P.2d 282 (1952); citing Deevy v. Tassi, 21 Cal. 2d 109, 130 P.2d 389 (1942) ("The principal element of damages in actions for battery, assault or false imprisonment, as well as in actions for defamation, malicious prosecution and alienation of affections, is frequently the disagreeable emotion experienced by the plaintiff . . . A person who has a cause of action for a tort may be entitled to recover as an element of damages for that form of mental distress known as humiliation . . . As an element of damages for a tort, a person may be entitled to recover for a feeling of anxiety . . . if this is the expectable result . . . In some cases fear and anxiety alone are a sufficient basis for the action, as where the defendant has assaulted the plaintiff. In California the law is settled that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of . . . and in this connection mental suffering includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and injury . . . "(emphasis added)).
In light of the foregoing long-standing case law, it is clear that if a sexually offensive contact causes emotional distress, that "distress" is part of the plaintiff's damages under common law and C.C. § 1708.5. Those emotional damages may include the dismay and shock which would naturally flow from the realization that the defendant had wailfully and deceitfully exposed his life partner to a fatal disease. It is not limited to the fear of the disease itself, as opposed the plaintiff on Kerins, whose claim for emotional damages appears to be limited to such fear. As previously stated, the essence of the grievance is the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of the person and not in any physical harm done to the body.
It is also clear under California law that a plaintiff may recover nominal damages for improper conduct, whether or not the person has suffered actual damages.[15] Thus, even though emotional distress damages may not be recovered because Robinson's fear is not "reasonable" (see Potter, infra), the sexual battery action may proceed.
2. Robinson's Consent to Intercourse.
Robinson's uninformed consent to intercourse does not alter the validity of this cause of action. The failure to disclose a communicable disease prior to intercourse vitiates consent and turns consensual intercourse into battery. Kathleen K. v. Robert B., 150 Cal.App.3d at 997, 198 Cal. Rptr. 273 (holding that consent is vitiated by the fraudulent concealment of the risk of infection with venereal disease). See also Aetna Casualty v. Sheft, 989 F.2d at 1109 (stating that consenting to have sex is not the same as consenting to be exposed to AIDS, and therefore consent is vitiated by the nondisclosure of HIV status). In the present case, Robinson consented to sex, but did not consent to be exposed to HIV. For this reason, Louie's nondisclosure of his HIV status vitiated Robinson's consent to intercourse.
Robinson's allegation of an unwanted sexual touching is, therefore, sufficient to support his cause of action for sexual battery, and Louie's motion to dismiss will be denied as to this cause of action.
IV. CONCLUSION
The court is concurrently issuing a separate order consistent with this decision.
NOTES
[1] Robinson's claims for declaratory relief regarding existence of a putative marriage, dissolution of a putative marriage and division of quasi-marital property, breach of domestic partnership agreement, fraud and deceit related to that agreement and the parties' relationship, conversion, breach of fiduciary duty and constructive trust are the subject of a companion Memorandum Decision the court is issuing contemporaneously with this decision. Robinson's theories of negligent failure to warn regarding HIV/AIDS and negligent infliction of emotional distress will not be discussed as Robinson's counsel has admitted that such state law causes of action are not available in a nondischargeability proceeding under 11 U.S.C. § 523(a).
[2] It is axiomatic that the complaint must be construed "in the light most favorable to the plaintiff, and its allegations are taken as true" for the purpose of determining whether the allegations constitute a statement of a claim for which relief may be granted. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996). Therefore, in the following discussion of facts, the court assumes for the purposes of this motion only that all of the allegations of the complaint are true.
[3] Azidothymidine, generally described as AZT, is a drug commonly used in the treatment of HIV/AIDS. The disease was described by the court in Macy's California, Inc. v. Superior Court, 41 Cal. App. 4th 744, 48 Cal. Rptr. 2d 496 (1995) as follows:
We insert here an instructional footnote about AIDS and HIV, one probably unnecessary for the contemporary reader. We optimistically anticipate a day when AIDS/HIV is nothing more than a historical footnote. "First isolated and identified by scientists in 1983, HIV is a retrovirus that attacks the human immune system. The virus invades host cells, notably certain lymphocytes, replicates itself, weakens the immune system, and ultimately destroys the body's capacity to ward off disease. [¶] HIV's presence is detected by a laboratory blood test for antibodies to the virus. The virus may reside latently in the body for periods as long as ten years or more, during which time the infected person will manifest no symptoms of illness and function normally. HIV typically spreads via genital fluids or blood transmitted from one person to another through sexual contact, the sharing of needles in intravenous drug use, blood transfusions, infiltration into wounds, or from mother to child during pregnancy or birth. [Citations.] [¶] AIDS, in turn, is the condition that eventually results from an immune system gravely impaired by HIV. . . . AIDS is invariably fatal." (Faya v. Almaraz (1993) 329 Md. 435, 620 A.2d 327, 328-329.)
41 Cal.App. 4th at 746-7 n. 1, 48 Cal. Rptr. 2d 496.
[4] This duty is also reflected in Cal. Health & Safety Code § 120290, which makes the willful exposure of a contagious infectious or communicable disease to another person a misdemeanor.
[5] In Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 434, 131 Cal. Rptr. 14, 22, 551 P.2d 334 (1976), the California Supreme Court stated that the courts may depart from the premise that each man owes a duty to society of ordinary care and skill, only based upon a careful review of several policy considerations including foreseeability and certainty of harm, the connection between defendant's conduct and plaintiff's injury, and the ramifications to the community of imposing a duty of care.
Although an analysis of the Tarasoff factors leans in favor of imposing liability on Louie, Kerins in departing from the general and specific duties of disclosure where there is exposure without infection made a policy decision, focusing on certainty of harm, which follows from the general overall limits on the availability of emotional distress damages in California. See, e.g., Christensen v. Superior Court, 54 Cal. 3d 868, 2 Cal. Rptr. 2d 79, 820 P.2d 181 (1991); Thing v. La Chusa, 48 Cal. 3d 644, 257 Cal. Rptr. 865, 771 P.2d 814 (1989); as well as Potter v. Firestone, upon which Kerins was based.
[6] In Kerins, plaintiff was operated on by a physician who was infected with HIV at the time of the surgery. Plaintiff subsequently learned that the physician was HIV positive, and although the plaintiff tested negative for HIV, she brought a suit against the physician for intentional infliction of emotional distress and battery, as well as negligence-based causes of action which are not relevant in the present matter. Kerins, 27 Cal. App.4th at 1066, 33 Cal. Rptr. 2d 172.
[7] Based on the discussion in Kerins regarding the reliability of HIV testing procedures, as well as various references by the parties herein in their moving papers, it appears that in over 98% of cases, an HIV test is conclusive six months from exposure. This relatively short period of time for HIV to manifest itself should not be confused with the much longer period of time the virus may reside in the body before resulting in AIDS. See quote from Faya v. Almaraz, 620 A.2d at 328-29, supra in note 3.
[8] The earlier decision is set forth at Kerins v. Hartley, 21 Cal. Rptr. 2d 621 (1993), rev'd, 24 Cal. Rptr. 2d 236, 860 P.2d 1182 (1993).
[9] See note 7, supra.
[10] In Petri v. Bank of New York, 582 N.Y.S.2d 608, 612-14, 153 Misc. 2d 426, 432-34 (1992), a case decided in part on similar circumstances as the present case, the court agreed that an intentional infliction of emotional distress cause of action could not stand in the absence of actual transmission of the HIV virus. However, the court dismissed without prejudice to reinstate the cause of action if the plaintiff ever became infected with HIV based on exposure by the defendant. See also B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) (approving a claim of intentional infliction of emotional distress following infection with the HIV virus). Consequently, if Robinson subsequently becomes infected with HIV, and can prove causation, he presumably could bring a cause of action at that time, as a matter of state law. Under California Civil Code section 340, the statute of limitations for bringing a personal injury cause of action runs for one year from the time the plaintiff knew or should have known of the injury. See also Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949); Anderson v. Southern Pac. Co., 231 Cal. App. 2d 233, 41 Cal. Rptr. 743 (1965); and, Tresemer v. Barke, 86 Cal. App. 3d 656, 150 Cal. Rptr. 384 (1978) (all three cases holding that a cause of action for personal injury accrues at the time the defendant knew of should have known of the injury). Robinson could not know he was infected until he actually tested positive and that should therefore be the time at which the statute of limitations should begin running, if it ever occurs. The Ninth Circuit Court of Appeals has confirmed that the same results should follow under California law upon positive HIV testing or infection with AIDS. New v. Armour Pharmaceutical Co., 67 F.3d 716, 721-22 (9th Cir.1995).
Nonetheless, if after Louie's discharge in bankruptcy, Robinson became HIV positive due to Louie's exposing him to HIV, he may be barred from bringing a suit because the possibility of his developing HIV was a contingent claim, in the contemplation of the parties, arising from prepetition activities of the debtor. Such a claim would theoretically have to be brought in Louie's current bankruptcy case or be discharged under 11 U.S.C. § 727(b); See California Department of Health v. Jensen (In re Jensen), 995 F.2d 925 (9th Cir.1993) (finding that injury, although unmanifested, was in the fair contemplation of the parties and was therefore discharged). Because this scenario is not presented here, the court expresses no opinion on the outcome of these issues.
[11] In Potter, the court held that where plaintiff was negligently exposed to carcinogens, he had to show that it was "more likely than not" that he would develop cancer as a result of the exposure. Potter, 6 Cal.4th at 996, 25 Cal. Rptr. 2d 550, 863 P.2d 795. The Potter court then provided an exception to the "more likely than not" standard where the defendant breached a duty owed to the plaintiff and engaged in conduct that was oppressive, fraudulent or malicious, resulting in a negligent injury to the plaintiff. Id. at 999, 25 Cal. Rptr. 2d 550, 863 P.2d 795. In such a cause of action, the plaintiff is not required to show that it is more likely than not that he will develop a serious illness, but merely that his fear is "reasonable, genuine and serious." Id.
Kerins extended the "reasonable fear" requirement to a cause of action based on intentional acts directly resulting in damage to the plaintiff, as opposed to the intentional acts in Potter which negligently injured the plaintiff. Kerins, 27 Cal. App.4th at 1075, 33 Cal. Rptr. 2d 172.
[12] California Civil Code § 1708.5 provides, in part:
(a) A person commits a sexual battery who does any of the following:
(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.
(2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.
(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.
[13] Aetna Casualty & Surety involved an action related to a highly publicized suit brought by a former homosexual lover of the late movie star, Rock Hudson. Hudson's homeowner's insurance policy issuer sought a declaration that its policy did not cover intentional acts of the insured. A jury had already found that at the time Hudson's lover, Marc Christian, engaged in high-risk sex with him, Hudson knew that he had AIDS and concealed the information from Christian; that he affirmatively misrepresented his physical condition; that the misrepresentations were made to induce Christian to continue engaging in high-risk sex; that Christian reasonably relied upon Hudson's misrepresentations and concealment, and as a result suffered increased emotional distress; that Hudson's conduct was outrageous and his acts were done either with intent to cause Christian emotional damage or with reckless disregard of the probability of causing such distress. At the time of the action brought by the insurer, Christian had not tested positive for AIDS. See also Christian v. Sheft, No. C 574153 (Cal.Super.Ct. Feb. 15, 1989) (found liability even though plaintiff had tested negative 16 times). J.B. v. Bohonovsky, 835 F. Supp. 796, 801 n. 6 (D.N.J.1993) (describing in detail the jury action and findings in the Christian v. Sheft action).
[14] In a case similar to this one (except that it did not involve a cause of action for sexual battery), a court denied damages for the intentional infliction of emotional distress to a plaintiff whose partner had wilfully concealed that he had AIDS and failed to take the steps necessary to prevent its sexual transmission. J.B. v. Bohonovsky, 835 F. Supp. 796 (D.N.J.1993). The court found that the plaintiff had failed to establish the severity of his emotional distress. In so holding, however, the Bohonovsky court recognized that a defendant who knowingly places his or her partner at grave risk by failing to disclose his illness before engaging in sexual activity should bear some liability:
There can be little doubt that a person who knows that he or she has AIDS and misrepresents or conceals that knowledge from a sexual partner who then contracts AIDS as the result of unprotected sex, should be liable for the injuries sustained by that partner. A person who knowingly has AIDS, has a duty to disclose it and take the steps necessary to protect against its transmission to others.
Those who knowingly put others at such grave risk should not escape liability merely by the fortuitous circumstances that their conduct did not result in the actual transmittal of the disease. If nothing else, fear of liability may serve as a deterrent to such hateful conduct in the guise of love. Properly supported by competent evidence and medical opinion, claims for emotional distress are and should be cognizable. In this matter, however, plaintiff has failed to meet the threshold necessary to permit this matter to go forward.
Id. at 797-98. In Bohonovsky, the court applied New Jersey law, on intentional infliction of emotional distress caused by fear of AIDS, which appears to be contrary to California law under Kerins. But in the present case, Louie's liability arises in the sexual battery cause of action.
[15] As stated by Professor Witkin:
Nominal damages are usually awarded where there is an invasion of a legally protected interest which does not result in actual damage. The invasion is "injury without damage," and an award of damages is not the object of the action, which is brought to vindicate the right or interest. The interest is recognized and protected by the award of nominal damages, together with costs. (C.C. 3360; Siminoff v. Goodman & Co. Bank (1912) 198 C.A. 5, 15, 18 Cal. App. 5, 121 P. 939; Am. Jur.2d, Damages § 10.)
6 B.E. Witkin, Summary Of California Law (Torts) § 1317 at 775 (1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564133/ | 75 F.2d 692 (1935)
FORNO
v.
COYLE.[*]
No. 7384.
Circuit Court of Appeals, Ninth Circuit.
February 25, 1935.
Harry E. Pratt, of Fairbanks, Alaska, and Herman Weinberger, of San Francisco, Cal., for appellant.
John L. McGinn, of San Francisco, Cal., and Robert W. Jennings, of Sacramento, Cal., for appellee.
Before WILBUR and GARRECHT, Circuit Judges.
WILBUR, Circuit Judge.
The appellee has moved this court to dismiss the appeal and affirm the judgment of the lower court, for the reason that this court has no jurisdiction to proceed herein, in that there is no showing that the value of the matter in controversy exceeds $1,000.
In his affidavit as to the value of the property in controversy, the appellant declared: "* * * The area in conflict * * * constitutes 1.3 acres of the total area of 11.07 acres of my claim, the Poorman Bench, 1st tier, * * * I have been mining my said claim continuously since 1927 and have sunk seven * * * shafts to bedrock and run many tunnels and worked out considerable ground on said claim which *693 has yielded something over $60,000.00 in gold dust to me during that time; one of the last mentioned shafts I sank upon the disputed area; * * * a portion of such disputed area I am informed and verily believe was worked by one Otto W. Kickbush and pay gravels found upon the same; that from my own mining and prospecting on my said claim as aforesaid and from the way the pay streak ran, I am quite certain that the area in conflict above mentioned and as described by the pleadings in the above entitled case is of a value in excess of one thousand * * * dollars."
This statement stands uncontradicted by any sworn assertion. The appellee concedes that "neither the pleadings nor the record contains any revelation as to the value" of the property, other than the appellant's affidavit, which it is claimed is insufficient to establish the jurisdictional value.
The appellee cites but one case in support of his contention that the appeal should be dismissed; namely, Smith v. Benton, 7 Kan. App. 62, 51 P. 971. In that case the court held that the proof of value was insufficient, but the following paragraph on page 972 of the opinion in 51 P., 7 Kan. App. 62, 63, at once distinguishes that case from the one at bar: "After this case was submitted on the motion to dismiss, but before the decision thereon, by leave of court, the respective parties hereto filed affidavits as to the value of the matter in controversy. The plaintiff in error filed the affidavits of several persons, including himself, that the value thereof was more than $100, and the defendant in error filed the affidavits of other persons stating that the value thereof was less than $100. Neither party gave any reason for their opinion, and said affidavits were merely the expression of opinion of the respective witnesses. From this evidence it is impossible for us to say that the amount or value in controversy affirmatively appears to be more than $100."
In the instant case we have no conflicting affidavits as to the value of the property, and the appellant's sworn statement is more than a mere "expression of opinion," for it clearly sets forth the facts upon which that opinion is based. The uncontradicted affidavit is sufficient evidence of value to establish jurisdictional amount. See Wilson v. Blair, 119 U.S. 387, 7 S. Ct. 230, 30 L. Ed. 441; Davie v. Heyward (C. C.) 33 F. 93; Red River Cattle Co. v. Needham, 137 U.S. 632, 11 S. Ct. 208, 34 L. Ed. 799.
Accordingly, the motion to dismiss the appeal is denied, and we advance to a consideration of the case on its merits.
This is an action in ejectment involving a triangular piece of placer ground containing 1.3 acres. The plaintiff claims this property as a part of Gold Bench placer mining claim. The defendant claims the same as being a portion of Poorman Bench, first tier, placer mining claim.
Defendant's claim to the Poorman Bench, first tier, placer mining claim, is based upon an attempted relocation on June 30 and July 1, 1927, of the Hagan Bench placer mining claim which was originally located in 1913 prior to the location of the Gold Bench placer mining claim in 1916. Plaintiff's claim, therefore, depends upon the location of the mutual boundary line between the Hagan Bench placer mining claim and the Gold Bench placer mining claim.
The testimony adduced on behalf of the plaintiff fixed that boundary line so as to include the triangular piece of ground in question as a part of the Gold Bench placer mining claim, and consequently placed it outside the Hagan Bench claim.
The trial court instructed the jury that "the dispute in the action centers around the location of the downstream (with reference to Poorman Creek) end or side line of the Hagan Bench," and that, "If you believe that the preponderance of the evidence in this case has established that the ground in dispute was a part of the Gold Bench placer mining claim as said claim was originally staked and marked upon the ground and that the plaintiff at the time of the bringing of this action was the owner of said claim, you should find for the plaintiff." These instructions were correct, and were accepted by the parties without objection or exception. The jury, upon this issue thus stated, rendered a verdict specifically finding that the area in question was within the Gold Bench placer mining claim as originally located in 1916. It is not contended that the evidence was insufficient to support the verdict. Thus the issue in the case as location of boundary line was decided in favor of the plaintiff by the jury, and being supported by the evidence is not subject to attack by the defendant, except for errors in the progress of the trial.
The defendant contends that the trial judge misdirected the jury in relation to his affirmative defense. This defense sets up *694 his claim of title to the disputed area based upon his relocation of the Hagan Bench claim in 1927. While the plaintiff questioned the validity of this relocation, it is clear that if the triangular piece of land in controversy was never a part of the Hagan Bench claim and was a part of his Gold Bench placer mining claim, that the relocation of the Hagan Bench claim by the defendant is wholly immaterial. If defendant properly located the Hagan Bench claim with reference to its original boundaries, he did not thereby encroach upon the plaintiff's Gold Bench placer mining claim. If, on the other hand, in relocating the Hagan Bench claim he set the stakes so as to include in his relocation the triangular piece of land which was already owned by the plaintiff, the relocation to that extent was of no force or effect, even if it be conceded that the location was in other respects valid.
In order to understand the defendant's claim and to show clearly that it is immaterial whether or not the relocation was valid or not, it should be stated that the defendant was advised by the plaintiff that the Hagan Bench claim would be open for location on July 1, 1927, because of the failure of the owner to do the assessment work in the preceding year. Acting upon that advice, the defendant purported to relocate the Hagan Bench claim. He posted four stakes at the four corners of what he believed to be the Hagan Bench claim. Three of these stakes, including the one with the notice of location on it, were driven on the 30th of June. The fourth stake was not driven until the evening of July 1st, at which time the defendant panned some dirt and found gold. Defendant admits that the three stakes driven on the 30th of June were prematurely placed owing to the fact that the land was not open to relocation until noon July 1st. He contends that, inasmuch as the discovery was essential to relocation, unless he adopted the discovery by the previous locator, the discovery of the evening of July 1st and the driving of the fourth stake on July 1st fixed the time of relocation and thus placed it after the lapsing of the original location when the land was open for relocation.
The defendant contends that the court's instructions with reference to the discovery were ambiguous, and that the instructions in effect permitted the jury to conclude that the defendant may have relied upon the previous discovery by the original location of the Hagan Bench claim rather than his own discovery on July 1, 1927. If the land was within the boundaries of the original Hagan Bench claim it was not in the Gold Bench claim, and vice versa. In either event the relocation of the Hagan Bench claim would not affect the plaintiff's right to recover, for the plaintiff was bound to recover on the strength of his own title, and could not recover on the weakness of his adversary's title to the disputed triangle. Plaintiff having established his title to the disputed triangle, the affirmative defense falls regardless of the rights of the appellant under his relocation, and any errors committed in instructing the jury with relation thereto would not be prejudicial.
The appellant contends that the court erred in awarding to the appellee as costs the actual expenses of his witnesses, instead of the per diem and mileage provided for by chapter 38 of the Session Laws of Alaska of 1923, p. 47.
In 1900, Congress passed the following law for Alaska (31 Stat. 332, § 30, 48 USCA § 25) which is now section 389 of the Compiled Laws of Alaska: "In case the law requires or authorizes any services to be performed or any act to be done by any official or person within the Territory of Alaska, and provides no compensation therefor, the Attorney General may prescribe and promulgate a schedule of such fees, mileage, or other compensation as shall be by him deemed proper for each division of the court, and such schedule shall have the force and effect of law; and the Attorney General may from time to time amend such schedule and promulgate the same as amended, and the schedule as amended and promulgated shall also have the force and effect of law."
Under this section the Attorney General of the United States promulgated Circular No. 639, dated December 26, 1916, in which a witness might elect to receive his actual expenses of travel and subsistence "in lieu of all per diems and all mileages, as above provided."
The appellant argues that even though the Attorney General's schedule had the force of law when made, it was subject to amendment "the same as any other law," and that such amendment was effected by the act of 1923. Section 1 of that statute provides that: "The prevailing party may tax as costs * * * witness fee for each day a witness is necessarily absent from his usual place of abode by reason of attendance upon court, with traveling expenses at 15 cents per mile actually and necessarily traveled," *695 and that "a party to the action, if a witness, shall be entitled to the same fee and traveling expense as any other witness."
Construing the identical circular of the Attorney General and the identical act of 1923, an Alaska court, in United States v. Cadzow, 7 Alaska 126, 130, said, with reference to the act of 1923: "* * * It will be seen that the use of the word `may' in the above connection is permissive, and not peremptory, and gives to the prevailing party merely permission to follow the provisions thereinafter contained if he so desires, and if he does not so desire, and does not choose to exercise the permission granted, he is not estopped from claiming what he is allowed in the opening words of the paragraph of the same section, which is a re-enactment in identical language, as before stated, of section 1345, Compiled Laws of Alaska, viz., `all necessary disbursements, including the fees of officers and witnesses.'"
The appellant also complains that even if the Attorney General's schedule and not the act of 1923 is followed, the appellee should not be awarded his own costs as a witness. The Attorney General's schedule, however, was promulgated under the authority of section 389, which states that in case the law requires or authorizes any services to be performed by any "official or person," and provides no compensation therefor, the Attorney General may promulgate a schedule fixing fees, etc.
The Attorney General's schedule itself authorizes fees for "witnesses" in general, or "any witness," and does not specifically exclude parties as witnesses from the benefits of its provisions.
Furthermore, we see no reason why the act of 1923, which does specifically authorize parties to receive witness fees, should not be given effect in the instant case. True it is that the decision in United States v. Cadzow, supra, held that the act of 1923 repealed neither the section authorizing the Attorney General to promulgate such a schedule, nor the schedule itself. But there is no repugnance between the schedule and the statute of 1923. The former is silent as to parties as witnesses; the latter in terms allows such parties to receive witness fees. We are not put to a choice as to which pronouncement shall govern us here; we can give effect to both. As to the per diem provisions, the act of 1923 is, as the Alaska court has held, merely "permissive"; as to authorizing witness fees for parties to litigation, the schedule is silent, while the statute is specific in its sanction.
The assignment of error as to costs, set out in extenso in the brief of the appellant, contains intimations of another error as to costs, in connection with the lack of special subpna for witnesses residing more than 100 miles from the place of trial. The appellant, however, does not discuss this point in his brief; and therefore we are at liberty to disregard it.
In Lee Tung v. United States, 7 F.(2d) 111, 112, this court said: "On the argument it was suggested that the court erred in refusing to instruct the jury as to the effect to be given to evidence of good character; but counsel did not deem the question of sufficient importance to discuss it in his brief, and we do not consider it of sufficient moment to depart from the general rule that such assignments will not be considered. Clark v. United States (C. C. A.) 265 F. 104, 107."
See, also, Consolidated Interstate-Callahan Mining Co. v. Witkouski (C. C. A. 9) 249 F. 833, 840.
Finally, the appellant assigns as error the court's award of $500 as attorneys' fees, as part of the costs, in favor of the appellee and against the appellant. The ground of attack is that: "The question of attorney's fee was an issue raised by the pleadings and no evidence was introduced thereon by the plaintiff and no finding made relative thereto by the jury and the court was without power so to do."
Section 1341 of the Compiled Laws of Alaska, which is a part of the Act of Congress of June 6, 1900, 31 Stat. 415-418, provides as follows: "The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties; but there may be allowed to the prevailing party in the judgment certain sums by way of indemnity for his attorney fees in maintaining the action or defense thereto, which allowances are termed costs."
Section 1345 of the same compilation, and a part of the same act of Congress, reads as follows: "A party entitled to costs shall also be allowed for all necessary disbursements, including the fees of officers and witnesses, the necessary expenses of taking depositions by commission or otherwise, the expense of publication of the summons or notices, and the postage where the same are served by mail, the compensation of referees, *696 and the necessary expense of copying any public record, book, or document used as evidence on the trial."
Section 1345, among others, was amended by chapter 38 of the Act of 1923, Laws of Alaska, supra, as follows: "The prevailing party may tax as costs * * * in the district court only, a reasonable attorney's fee to be fixed by the court."
See Pond v. Goldstein (C. C. A. 9) 41 F. (2d) 76, 81.
The gist of the appellant's argument under this heading is thus stated in his brief: "Thus, as Sec. 1341 Cow. L. A. permitted certain sums as attorney's fees to be fixed by statute or rule of court, etc., and Chap. 38 S. L. A. 1923 permitted the District Court to fix a reasonable attorney's fee, the two statutes together gave the authority to the District Court to make a District Court rule which would constitute an unalterable amount as reimbursement for the expense of attorney's fee."
By the act of 1923, amending the act of Congress, the Territorial Legislature of Alaska gave the courts the express power to impose "reasonable" attorney's fees, and that what is "reasonable" depends on the circumstances of each individual case. It must be remembered, of course, that 48 US CA § 23 provides in part: "All the laws of the United States passed prior to August 24, 1912, establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by Act of Congress; except as herein provided all laws in force in Alaska prior to that date shall continue in full force and effect until altered, amended, or repealed by Congress or by the legislature."
The appellant relies upon a number of cases decided by the Supreme Court of Oregon since 1921. These cases are not in point, since, as the appellant himself observes, they construe section 561 of the Oregon Laws (Olson, 1920), which was almost identical with section 1341 of the Laws of Alaska, supra. Neither section 561 of the Oregon Laws nor section 1341 of the Alaska Laws, however, contains the provision as to "reasonable" attorneys' fees "to be fixed by the court," which is found in the act of 1923, supra.
As to the objection that "no evidence was submitted to the jury" on the question of what was a "reasonable" attorney's fee, we need only point out that no such evidence was necessary. In Globe Indemnity Co. v. Sulpho-Saline Bath Co. (C. C. A. 8) 299 F. 219, 222, certiorari denied, 266 U.S. 606, 45 S. Ct. 92, 69 L. Ed. 464, the court said: "The further point, in connection with the allowance of this [attorney's] fee, that there was no evidence as to a reasonable amount is not open to examination. If it were, we would be inclined to hold that the court is as good [a] judge of reasonableness of attorney fees for services in that court as any one. Any testimony as to what would be a reasonable fee would be in the nature of expert evidence, and, as such, advisory but not binding upon the court."
See, also, State v. Glass, 99 Kan. 159, 160 P. 1145, 1146; Hurni v. Sioux City Stock Yards Co., 138 Iowa, 475, 114 N.W. 1074, 1076; Woodward v. Brown, 119 Cal. 283, 51 P. 2, 542, 63 Am. St. Rep. 108; Hotaling v. Monteith, 128 Cal. 556, 61 P. 95.
We find no error in the record, and the judgment is affirmed.
NOTES
[*] Rehearing denied April 22, 1935. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565089/ | 34 So. 3d 151 (2010)
Justin PENNINGTON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-4182.
District Court of Appeal of Florida, First District.
April 30, 2010.
*152 Justin Pennington, pro se.
Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
LEWIS, J.
Justin Pennington, Appellant, seeks review of an order denying his motion for postconviction relief after an evidentiary hearing. Among other things, he argues that the trial court erred in failing to find ineffective assistance of counsel where his attorney neglected to tell him the maximum sentence he could face when discussing a plea offer with him, and the State later withdrew the offer, cutting off his opportunity to accept it. For the reasons explained below, the trial court's order is inadequate to show that the motion was properly denied.[1] Accordingly, we reverse *153 and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
Appellant was sentenced to community control for burglary of an occupied structure. Later, the State filed a third amended affidavit charging him with violating community control by failing to remain confined to his approved residence and by committing several new law violations: aggravated assault; possession of a firearm by convicted felon; felony fleeing or attempting to elude a law enforcement officer; possession of a controlled substance; possession of a legend drug without a prescription (four counts); resisting an officer without violence; and petit theft. After an additional amendment to the affidavit,[2] Appellant pled nolo contendere to violating community control, aggravated assault, felony fleeing or attempting to elude a law enforcement officer, possession of a controlled substance, possession of a legend drug without a prescription, and resisting an officer without violence. The trial court accepted the plea, revoked community control, and sentenced Appellant to fifteen years in prison for burglary of an occupied structure. For the remaining offenses, Appellant was sentenced to fifteen years of probation to follow his term of imprisonment. He did not appeal.
Thereafter, he timely filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing that his trial counsel rendered ineffective assistance in advising him not to accept a favorable plea offer from the State. According to Appellant's motion and its attachments, the State offered to support concurrent sentences of five years' imprisonment followed by two years' probation in exchange for nolo contendere pleas as to violation of community control, aggravated assault, fleeing or attempting to elude a law enforcement officer, possession of a controlled substance, possession of new or legend drug, and resisting an officer without violence. The trial court held an evidentiary hearing on Appellant's claim.
Evidence submitted at the hearing confirmed that the State had made such an offer and that Appellant and his counsel had discussed the offer at arraignment. When asked whether he had ever advised Appellant of the maximum sentence he could face as a result of all the charges, counsel testified that he would have discussed "whatever was in the plea agreement." He admitted that the proposed plea agreement did not provide the statutory maximum for the violation of community control. The plea agreement itself reveals that the State provided the five-year statutory maximum on three offenses (aggravated assault, fleeing and eluding, and possession of a controlled substance) but neglected to indicate the statutory maximum for the violation of community control, possession of a new or legend drug, and resisting an officer without arrest. Thus, the plea agreement failed to mention that the total penalty Appellant *154 could face based on the statutory maximum for each of the offenses listed was thirty-one years and sixty days' imprisonment.[3]
Based on counsel's testimony that the information he shared about the statutory maximum was "whatever was in the plea agreement," it appears that he failed to advise Appellant that his total exposure was thirty-one years, and not just the fifteen years listed on the proposed agreement. Notably, the thirty-one-year maximum includes only the offenses the State agreed to pursue if Appellant accepted the plea offer, not the remaining offenses that are listed on the third amended affidavit but not on the plea offer. Thus, Appellant was facing a maximum sentence of at least thirty-one years' imprisonment when presented with an offer of five years' imprisonment followed by two years of probation.
Appellant did not accept the offer at arraignment, and the State withdrew it fifteen days later. Counsel testified that Appellant was "agitated" at arraignment and did not want to accept the State's offer. Counsel further testified that he was "going back and forth" with Appellant about it and that Appellant "got a little nervous about his attitude" as the arraignments proceeded. Counsel explained that he then told Appellant to "just wait and see what the evidence is all about." Appellant testified that trial counsel advised him to reject the offer and that he did not discuss the statutory maximum with him until a year after arraignment. He further testified that he did not know the statutory maximum at arraignment but that he was planning to accept the offer until trial counsel advised him against it.
The trial court denied Appellant's postconviction motion, finding that it was within the broad range of reasonably competent performance for counsel to advise Appellant not to accept the offer until he could further investigate the case. The trial court also accepted counsel's testimony that Appellant did not want to accept the State's offer. Further, the trial court found that Appellant had not met his burden to show "that counsel misinformed him concerning the sentence he faced." Appellant now seeks review of the denial of his motion.
II. Analysis
A. Standards Governing Claims of Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is a mixed question of law and fact. Stephens v. State, 748 So. 2d 1028, 1032 (Fla.1999). While appellate courts must give deference to trial courts factual findings, they must review trial courts application of law to facts de novo to ensure uniformity in determining what constitutes deficient performance. Id. at 1033-34. Factual findings are reviewed for competent, substantial evidence. Blanco v. State, 702 So. 2d 1250, 1252 (Fla.1997). Additionally, the defendant has the burden to prove a claim of ineffective assistance of counsel at an evidentiary hearing on a Rule 3.850 motion. Williams v. State, 974 So. 2d 405, 407 (Fla. 2d DCA 2007). Once the defendant presents evidence to support *155 the claim, however, the State has a burden to present contradictory evidence. Id.
To prove a claim for ineffective assistance of counsel, a defendant must show that trial counsels performance was deficient and that the deficiency was prejudicial to the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The deficiency prong requires the defendant to establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. Id. at 688, 104 S. Ct. 2052. There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S. Ct. 2052. In determining whether an attorney's performance was deficient, courts should make "every effort... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Evans v. State, 975 So. 2d 1035, 1043 (Fla.2007). The prejudice prong requires the defendant to establish "a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. 2052. When the defendant fails to establish either Strickland prong, it is unnecessary to consider the other. Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001).
B. The Performance Prong of Strickland
The specific deficiency at issue in this case is trial counsel's failure to advise his client of the statutory maximum when discussing a plea offer. Appellant correctly notes that an attorney must advise a client of the statutory maximum before advising the client to reject or accept a plea offer. See Williams v. State, 924 So. 2d 897, 898 (Fla. 1st DCA 2006) (finding an ineffective assistance of counsel claim facially sufficient where the defendant alleged that counsel advised him to reject a plea offer without first advising him of the statutory maximum); Tidwell v. State, 844 So. 2d 701, 702 (Fla. 1st DCA 2003) (same); Fla. R.Crim. P. 3.171(c)(2) (providing that defense counsel shall advise the defendant of all plea offers and "all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant"). In at least two cases, Williams v. State, 924 So.2d at 898, and Tidwell v. State, 844 So.2d at 702, this Court has required an evidentiary hearing where the defendants alleged (1) that their attorneys advised them to reject plea offers without first informing them of the maximum possible sentences they faced, (2) that they would have accepted the plea offers had they been advised of the statutory maximum, and (3) that they ultimately received harsher sentences than the ones proposed in the plea offers.
In Morgan v. State, 991 So. 2d 835 (Fla.2008), the Florida Supreme Court confirmed that ineffective assistance of counsel claims based on advice to reject a plea offer are cognizable. The Morgan court also confirmed that defendants are entitled to relief on such claims when they allege and prove three factors: "(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel's failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed."[4] 991 So.2d *156 at 839-40. The Morgan decision is consistent with the supreme court's earlier recognition, in Cottle v. State, 733 So. 2d 963, 969 (Fla.1999), that "an inherent prejudice results from a defendant's inability, due to counsel's neglect, to make an informed decision whether to plea bargain." See Morgan, 991 So.2d at 839-40. This language reiterates the established principle that it is a client's, not an attorney's, decision to either accept or reject a plea offer. See Cottle, 733 So.2d at 969.
Here, the trial court found that Appellant had "not shown that counsel misinformed him concerning the sentence he faced." This finding does not address Appellant's argument that his counsel's ineffective assistance was based in part on his failure to advise him of the statutory maximum. It also does not take into account the shifting of the burden of proof once a postconviction defendant presents evidence to support a Rule 3.850 claim. Appellant did not allege that counsel gave him wrong information; rather, he alleged that counsel neglected to provide information necessary to full consideration of the plea offer. Appellant presented evidence to support his claim that counsel did not inform him of the statutory maximum in the form of his own testimony, trial counsel's testimony, and the plea form. The State's evidence did not refute Appellant's evidence that counsel neglected to tell him the statutory maximum for at least the violation of community control and the two misdemeanors at issue in the third amended affidavit.
At the hearing, counsel explained why he did not advise Appellant to accept the offer at arraignment. However, he did not address why he failed to inform Appellant of the full statutory maximum when assisting him in making the decision of whether to accept the plea offer. This information was readily accessible to counsel and pertinent to Appellant's decision.
Our precedent requires attorneys to inform their clients of the maximum sentences they may face when advising them as to whether to reject a plea offer. Although counsel in the instant case was advising his client to leave an offer open, rather than to reject it outright, knowledge of the statutory maximum was vital to an informed decision as to whether to accept the offer or leave it open, thus risking its withdrawal. Because Appellant's evidence that counsel did not inform him of the statutory maximum for violating his community control sentence was unrefuted, we must reject the trial court's finding that Appellant did not meet his burden on this issue. Because our precedent establishes that such information is vital to an informed decision regarding a plea offer, we also must reject the trial court's conclusion that trial counsel performed reasonably when discussing the offer with Appellant.
Our conclusion that counsel's performance was deficient does not end the inquiry, however. Appellant also must establish that he was prejudiced by this deficiency. See Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla.2001) (observing that Strickland requires a defendant to establish both prongs to prevail on a claim of ineffective assistance of counsel).
C. The Prejudice Prong of Strickland
As noted above, when an ineffective assistance of counsel claim arises out of a defendant's failure to accept a plea offer, the prejudice prong requires a showing that, but for counsel's deficient performance, *157 the defendant would have accepted the offer, which would have resulted in a lesser sentence than what was ultimately imposed. Morgan v. State, 991 So. 2d 835, 839-40 (Fla.2008). The standard of proof is a "reasonable probability." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Thus, to demonstrate prejudice under Morgan and Strickland, Appellant needed to show a reasonable probability that but for trial counsel's failure to advise him of the statutory maximum, he would have accepted the State's offer, which involved a lesser sentence than the one he ultimately received. See Morgan, 991 So.2d at 839-40; Strickland, 466 U.S. at 694, 104 S. Ct. 2052.
Here, the trial court found that Appellant had not established prejudice because he told counsel at arraignment that he did not want to accept the State's offer. While the trial court was entitled to accept counsel's testimony that Appellant did not want to accept the offer, this testimony does not settle the issue. The key issue is whether there is a reasonable probability that Appellant would have accepted the offer had he been informed of the statutory maximum. Appellant's desire not to accept the offer when he was inadequately informed of the risk of not accepting it is unremarkable. The trial court's order does not specifically address whether Appellant would have left the offer open after arraignment had he been advised of the statutory maximum. Consequently, it inadequately addressed the prejudice prong.
III. Conclusion
We conclude that the trial court erred as a matter of law in finding counsel's failure to inform Appellant of the statutory maximum reasonable. Further, we conclude that the trial court failed to resolve conflicts in the evidence with respect to the legal standard governing the prejudice prong in the instant case. Accordingly, we reverse and remand for additional findings on the prejudice prong, vacation of the order appealed from, and entry of a new order consistent with this opinion.
REVERSED and REMANDED with instructions.
VAN NORTWICK and ROWE, JJ., concur.
NOTES
[1] We have reached this decision without the benefit of argument from the State. Citing Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), the State filed a notice that it would not file an answer brief unless requested to do so. This notice was improper because Toler concerns summary denials of motions filed under Rule 3.850, not denials issued after evidentiary hearings. See 493 So.2d at 491 (adopting discretionary standards for this Court's approach to the "streamlined procedure for the handling of appeals from orders denying 3.850 motions without hearing" under Florida Rule of Appellate Procedure 9.140(g) (emphasis added)). Briefing is required in an appeal from a non-summary denial of a Rule 3.850 motion. Williams v. State, 24 So. 3d 1252, 1252 n. 1 (Fla. 1st DCA 2009); accord Ketion v. State, 548 So. 2d 778, 780 n. 5 (Fla. 1st DCA 1989) (noting, after excusing the State from filing an answer brief in an appeal from a denial of a petition for writ of habeas corpus, that "[c]omplete briefing is appropriate where a motion for post-conviction relief is disposed of after an evidentiary hearing").
[2] The details of the additional amendment are not relevant to this appeal because the amendment occurred after the time frame relevant to counsel's alleged ineffective assistance.
[3] Because Appellant was on community control for burglary of an occupied structure, a second-degree felony, the maximum sentence he could face for violating community control was fifteen years in prison. See §§ 921.002(1)(g), 810.02(3)(c), 775.082(3)(c), Fla. Stat. (2004). Resisting an officer without violence is a first-degree misdemeanor punishable by up to one year of imprisonment. §§ 843.02, 775.082(4)(a), Fla. Stat. (2005). Possession of a legend drug is a second-degree misdemeanor punishable by up to sixty days of imprisonment. §§ 499.03(3), 775.082(4)(b), Fla. Stat. (2005).
[4] The third factor does not appear to be contingent on a finding that the trial court would have actually accepted the plea arrangement offered by the State. See Cottle v. State, 733 So. 2d 963, 969 (Fla.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564405/ | 929 S.W.2d 577 (1996)
Valarie BROWN, Appellant,
v.
MONTGOMERY COUNTY HOSPITAL DISTRICT, d/b/a Medical Center Hospital, Susan Spring, and Louis Bremer, Appellees.
No. 09-95-020CV.
Court of Appeals of Texas, Beaumont.
August 29, 1996.
Rehearing Overruled September 26, 1996.
*580 Larry Watts, Watts & Associates, Houston, for appellant.
Ralph Burnham, Timothy D. Riley, Floyd, Taylor & Riley, Houston, Terri S. Harris, Riley & Harris, Houston, for appellee.
Before BURGESS, STOVER and CARR[*], JJ.
OPINION
RON CARR, Justice (Assigned).
This is an appeal from a summary judgment denying recovery in a wrongful termination of employment case. Appellant Valarie Brown, sued appellees, Montgomery County Hospital District, d/b/a Medical Center Hospital, the hospital's Vice-President, Susan Spring, and Louis Bremer, the hospital's President and CEO, alleging she was wrongfully terminated[1] from her employment at Medical Center Hospital. The trial court granted Appellees' motion for summary judgment and this appeal followed.
We grant Brown's first two points of error, because we find that Appellant raised a genuine issue of material fact via competent summary judgment evidence as to whether or not (1) Brown voluntarily resigned or was forced to resign her employment with the hospital by constructive discharge; (2) Brown's last paycheck included an amount for unworked severance pay and, if so, did Brown know that prior to September 25, 1991 so as to effect an estoppel of her constructive discharge claim; (3) Brown's resignation was accepted by the hospital for an effective date of September 6, or September 25, 1991; and (4) there was an oral contract of employment between Brown and the hospital[2] and, if so, did the hospital breach the oral contract. We remand those issues back to the trial court for a fact finding determination. To the extent we find that the uncontroverted summary judgment evidence proves as a matter of law that Spring and Bremer individually are immune from personal liability, we deny Brown's third point of error; to the extent we hold Brown's due process claim against the hospital survives summary judgment attack, we sustain Brown's third point of error; because we hold as a matter of law there was no violation of Appellant's liberty rights, we deny Appellant's fourth point of error.
STANDARD OF REVIEW
A movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there are disputed material fact issues precluding summary judgment, proof favorable to the non-movant should be taken as true, the court indulging every reasonable inference and resolving any doubts in favor of non movant. El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987). When a defendant comes forward with competent summary judgment evidence that conclusively negates one or more essential elements of the plaintiff's claim, the plaintiff is under a burden to come forward with competent controverting summary judgment evidence to preclude the entry of judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).
SUMMARY JUDGMENT FACTS
In 1991, Brown had served ten years as the Laboratory Director for Medical Center *581 Hospital. In March 1990, Brown gained the title "Systems Manager" when the District undertook to computerize its medical laboratory. Needing assistance in this task, Appellant hired an assistant, Jewel Smith, as Assistant Laboratory Director. According to Brown, Smith soon proved to be incompetent, a performance deficiency which Brown began to document and report to her superiors and by August 1991, Smith's inadequate job performance had become a genuine detriment to patient safety. As Smith was still in her probationary employment period, Brown recommended to Spring that Smith be terminated. Spring refused to act. On September 4, 1991, Spring called Brown to Spring's office and presented a document to Brown which contained a host of unflattering criticisms regarding Brown's interpersonal and managerial skills. Brown's surprise was profound because her previous ten years of work performance evaluations were very good. No complainant was actually named in Spring's document, though Brown requested that those complaining be identified and their charges made specific, so that Brown could adequately respond. Although Spring denies threatening Brown with termination, Brown alleges she was told "You're going to have to change or you're going to be fired." As the meeting drew to a close, Spring asked Appellant when she (Brown) would be resigning. Because Spring refused to be specific about the complaints and Spring threatened imminent termination i.e., resign or be fired, Brown resigned her position, effective on September 25, 1991. Brown says Spring agreed to accept her resignation "effective September 25, 1991." Brown told Spring that she wanted to continue working through the effective date of her resignation, September 25, 1991. Spring told Brown, however, that she would not allow her to work past Friday, September 6, 1991. Spring thus informed Brown that a final check would be cut reflecting payment of Brown's regular salary through September 25, 1991, accrued salary, unused vacation time, unused sick pay and accrued holiday time. This largesse was forthcoming because Brown had given the required two-week notice. According to Brown, at no time was she told that the check represented severance compensation.
Shortly after the meeting with Spring, Brown submitted her formal written letter of resignation, complaining that the "[a]dministration is unwilling to make the commitment of personnel, time, and support necessary for the continued success of the Laboratory and the implementation of a laboratory information system at this time...." The letter makes no reference to the meeting with Ms. Spring or the complaints levied against Brown at the meeting. The letter was delivered to Bremer, as president of the Medical Center Hospital.
According to Bremer, Brown's resignation was accepted by Bremer and became effective on September 6, 1991. Thereafter, Brown received a check from the hospital in the amount of $7,562.03, which according to the hospital was for severance pay. Brown accepted the check, cashed it, and did not return to work following September 6, 1991.
On September 25, 1991, having reconsidered the potentially career damaging manner in which she had departed employment from the hospital, Brown rescinded her resignation in writing to Bremer. She also stated her intention to activate due process through a grievance procedure. Three months later, Brown brought this suit alleging she was wrongfully terminated.
CONSTRUCTIVE DISCHARGE/VOLUNTARY RESIGNATION
Appellant's first point of error contends that she raised a genuine issue of material fact via competent summary judgment evidence as to whether she was forced to resign or resigned voluntarily. Brown's second point of error contends (1) that because she alleged a valid and enforceable written and oral contract, her controverting summary judgment evidence raised a genuine fact-issue as to whether or not Brown's employment at-will status was modified; and (2) because Brown's summary judgment affidavit attested that she was not fired for good cause, a fact issue existed on the issue of breach of contract. To prevail on Brown's first point, Brown must show either that she was terminated or was constructively discharged. *582 Brown did not allege at the trial court level, and does not raise on appeal, that she was actually terminated, so the point has been waived. Garcia v. Robinson, 817 S.W.2d 59 (Tex.1991). Brown claims, rather, that her resignation was, in fact, not a resignation, but was a "constructive discharge."
Under Texas law, a "constructive discharge" occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Epps v. NCNB Texas National Bank, 838 F.Supp. 296, 304 (N.D.Texas 1993), affirmed, 7 F.3d 44 (5th Cir.1993). To find that a constructive discharge has occurred, the trier of fact must be satisfied that the working conditions to which the employee was subjected were so difficult or unpleasant that a reasonable person in the employee's shoes would have been compelled to resign. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993).
Bremer states by summary judgment affidavit that Brown resigned voluntarily.[3] Appellees argue that Brown voluntarily resigned because it is undisputed that nowhere in Brown's September 4, 1991, resignation letter does Brown state that she is resigning for fear of termination.
However, Brown's summary judgment affidavit states that Spring forced Brown to resign or be fired and that her intention was to avoid the career damaging effects associated with an involuntarily termination. This is sufficient to raise an issue of fact as to whether or not Brown voluntarily resigned or was forced to resign.[4]
The hospital also argues that Boze v. Branstetter, 912 F.2d 801, 804-05 (5th Cir. 1990) bars Brown's constructive discharge claim as a matter of law. In that case, an attorney working for Chevron received a poor performance evaluation. The evaluation cited many complaints the company had with his work, and stated that if the attorney failed to improve and sustain the corrections listed, the company would be forced to take disciplinary action, including discharge. Id. at 803. Shortly thereafter, the attorney retired and filed suit against Chevron.
The trial court granted Chevron's motion for summary judgment, which was upheld on appeal. In affirming the summary judgment, the Fifth Circuit held that the attorney had not been constructively discharged because; (1) the working conditions he described did not constitute discharge; and (2) a reasonable employee dissatisfied with his performance evaluation would have pursued the company's grievance procedures. Id. at 805. However we find Boze to be distinguishable. In our case, Brown submitted summary judgment evidence via her summary judgment affidavit that Spring demanded Brown resign or be fired and we hold that such summary judgment evidence is sufficient to defeat a summary judgment attack and if believed by a trier of fact, is sufficient to support a constructive discharge claim.
ESTOPPEL
Next, Appellees contend that Brown is estopped to claim that she was constructively discharged because she knowingly accepted and retained the benefits of her voluntary resignation, i.e., severance pay. The doctrine of quasi-estoppel prevents a party from retaining a benefit by asserting a position to the disadvantage of another and then asserting a right which is inconsistent with that previous position. Stimpson v. Plano Indep. School Dist., 743 S.W.2d 944, 946 (Tex.App.Dallas 1987, writ denied); Hurt v. Standard Oil Co., 444 S.W.2d 342, 347 (Tex.Civ.App.El Paso 1969, no writ). Therefore, Appellees argue that once Brown received, accepted, and retained the severance check, she was barred from taking an inconsistent position that would cause loss or injury to appellees. See Fabrique v. Corman, *583 796 S.W.2d 790, 792 (Tex.App.Dallas 1990, writ denied).
In support of this estoppel argument, Appellees rely on Brown's own summary judgment affidavit which states:
I then asked what I was going to receive in terms of salary and benefits. Ms. Spring stated that since I had given my required two-week notice and offered to work during the notice period, I would be paid my regular salary through and until the end of the effective date of my termination, September 25, 1991. In addition, I was assured that I would be paid all of my accrued salary, unused vacation time, unused sick pay, and accrued holiday time.
However, Appellees incorrectly argue that no controverting summary judgment evidence was presented. Brown provided controverting summary judgment evidence in the form of a copy of the paycheck stub and the check itself, which Brown argues does not mention the word "severance." Additionally, in her summary judgment affidavit, Brown noted that Spring recited the various items which were to comprise Brown's last paycheck and at no time did Spring mention "severance pay." Following our Nixon standard of review, we conclude that Brown's controverting summary judgment evidence is sufficient to raise a fact issue as to whether or not Brown's last paycheck included an amount for unworked severance pay (or was only for monies due her pursuant to hospital policy) and if so, whether Brown knowingly accepted it as a severance pay check prior to September 25, 1991.
ACCEPTANCE OF RESIGNATION
On September 25, 1991, Brown wrote Bremer a letter withdrawing her September 6, 1991, resignation. Brown's summary judgment affidavit asserts that Brown and Spring agreed that her September 6, 1991, resignation would be effective September 25, 1991. According to Bremer, she accepted Brown's resignation on September 6, 1991. This is sufficient to raise a fact issue as to whether Brown's resignation was accepted by the hospital for an effective date of September 6, 1991, or September 25, 1991.
BREACH OF CONTRACT
The hospital's summary judgment evidence maintains that there was no contract, written or oral, between Brown and the hospital and that any oral contract, if any, is unenforceable as a matter of law because it would violate the statute of frauds. See Wal-Mart Stores, Inc. v. Coward, 829 S.W.2d 340 (Tex. App.Beaumont 1992, writ denied).
WRITTEN CONTRACT
Brown first maintains that a written contract of employment between Brown and the hospital exists via the employee benefits manual. However, the employee manual itself reveals that her employment is at will. In addition, we do not find the employee manual language implies that an employee cannot be terminated except for "good cause." An employee manual or handbook cannot create a contract between the employee and employer unless it specifically and expressly so states by limiting the relationship and curtails the employer's right to terminate the employee. Figueroa v. West, 902 S.W.2d 701, 704 (Tex.App.El Paso 1995, no writ); McAlister v. Medina Elec. Co-op., Inc., 830 S.W.2d 659, 664 (Tex.App.San Antonio 1992, writ denied).
Accordingly, we reject Brown's written contract argument and hold as a matter of law that this employee benefits manual did not modify the at-will relationship.
ORAL CONTRACT
Brown next maintains that an enforceable employment contract existed between Brown and the hospital via an oral agreement.
The long-standing rule in Texas is that absent contractual limitations, employment for an indefinite term may be terminated at-will and without cause. Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 723 (Tex.1990). However, the parties may modify the at-will employment by agreement, and the agreement may be oral. Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825, 826 (Tex.App.Austin 1989, writ dism'd)(an oral agreement not to fire an employee except for "good cause" modifies *584 the at-will status); Kelley v. Apache Products, Inc., 709 S.W.2d 772, 774 (Tex.App. Beaumont 1986, writ ref'd n.r.e.) (any employment at-will contract can be modified by an oral agreement); Johnson v. Ford Motor Co., 690 S.W.2d 90, 93 (Tex.App.Eastland 1985, writ ref'd n.r.e.) (oral agreement that one would not be terminated except for "good cause" modifies the at-will relationship and is enforceable).
In this case, Brown's summary judgment affidavit asserts that prior to and during her employment, she was orally promised by the then-administrator that as long as Brown performed her job satisfactorily, Brown would have a job and that Brown would not be fired without "good cause." For purposes of summary judgment we take Brown's affidavit as true. Therefore, such representations by the then-administrator who acted as an agent of the Hospital would constitute an oral modification of Brown's at-will status. See Morgan, 764 S.W.2d at 827.
An oral agreement not to fire an employee unless there exists "good cause" or as long as an employee performs satisfactorily ("satisfaction contract") has been routinely held to be a valid oral modification of the at-will status and enforceable. See Morgan, 764 S.W.2d at 827, Johnson, 690 S.W.2d at 93, Hardison v. A.H. Belo Corp., 247 S.W.2d 167, 168 (Tex.Civ.App.Dallas 1952, no writ). As the court in Morgan stated at 827:
More important, subsequent authorities have limited the at-will doctrine in nondurational ways. For example, an [oral] agreement not to fire an employee except for good cause does defeat the presumption of at-will status even though no exact duration is agree upon.
The Texas Supreme Court, as well as the other Texas courts have agreed that indefinite term employment contracts, like the oral contract in this case, are considered performable within one year and do not violate the statute of frauds. Miller v. Riata Cadillac Co., 517 S.W.2d 773, 775 (Tex.1974); Bratcher v. Dozier, 162 Tex. 319, 346 S.W.2d 795 (1961); Morgan, 764 S.W.2d at 827.
Relying on Wal-Mart Stores, Inc., 829 S.W.2d at 343, the hospital argues that an oral contract with no definite duration violates the statute of frauds. However, in Coward, Plaintiff Coward alleged a contract "for life", a fact which this Court noted made the statute of frauds applicable since by plaintiff's own admission, the contract was for an indefinite duration of time. Coward at 343. Brown's assertion is very different. She asserts that the promise made to her was that her employment would continue until such time as her work performance gave Appellees just cause to terminate her employment. The primary issue centers on whether a definite term or indefinite term contract was contemplated and what activating event would allow the employer to terminate Appellant's employment.
In her summary judgment affidavit, Brown made clear that she had been orally promised employment as long as she performed satisfactorily and until such time as her performance gave the hospital good cause to terminate her. Such representations have most recently been held to constitute enforceable oral contracts of employment. See Floors Unlimited, Inc. v. Fieldcrest Cannon Inc., 55 F.3d 181 (5th Cir.1995)(citing Gerstacker v. Blum Consulting Eng's, 884 S.W.2d 845 (Tex.App.Dallas 1994, writ denied)).
The court in Gerstacker cited Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483 (Tex. 1991), as did this court in Coward. However, in Schroeder the Texas Supreme Court predicated its decision on the fact that plaintiff Schroeder's oral contract had an implied term of years (8 to 10), a fact which immediately made the oral promise unenforceable under the statute of frauds. Schroeder, 813 S.W.2d at 489.
The Gerstacker court also cited Hall v. Hall, 158 Tex. 95, 99, 308 S.W.2d 12, 15 (1957). In Hall, the Texas Supreme Court established the rule that where contract performance is uncertain such that performance could possibly be made within one year then such a contract remains outside the statute of frauds. This result is true "... however improbable performance within one year may be." Gerstacker, 884 S.W.2d at 849 (citing Hall, 308 S.W.2d at 15) (1957). There is a difference between the eventual duration of an oral contract for employment and what *585 parties initially contemplate to be the intended length of performance. If an expressed contingency, such as deterioration in an employee's quality of performance, is initially contemplated to be the activating event which could lead to termination, such an event could take place within one year's time. Therefore, an oral contract of employment which allows for termination based only on good cause falls outside the statute of frauds. Id. at 850-51 (citing Hall, 308 S.W.2d at 16-17). See also Floors, 55 F.3d at 186, ("... we are now satisfied that, if faced with this issue, Texas courts would conclude that a contract for an indefinite duration, terminable only for cause, falls outside the statute of frauds.").
We hold Brown has alleged a valid and enforceable oral contract. Accordingly, we find that a fact issue exists (1) as to whether or not Brown and the hospital orally modified Brown's at-will employment status and (2) because Brown has attested in her summary judgment affidavit that she was not fired for good cause, a fact issue exists on the issue of breach of the oral contract, if any.
SUMMARY
We sustain Brown's first point of error because we find that Brown's summary judgment evidence raised a genuine issue of material fact as to whether or not (1) Brown resigned voluntarily or was forced to resign; (2) Brown's last paycheck included an amount for unworked severance pay and if so, did Brown know that prior to September 25, 1991 so as to effect an estoppel of her constructive discharge claim; and, (3) Brown's resignation was accepted by the hospital for an effective date of September 6, 1991, or September 25, 1991. To the extent that we reject Brown's written contract argument by holding that as a matter of law the employee benefits manual does not constitute a contract modifying Brown's at-will status, we deny Brown's second point of error. To the extent that we hold that Brown has alleged a valid and enforceable oral contract and find that Brown's summary judgment evidence raised a genuine issue of material fact (1) as to whether or not Brown and the hospital orally modified Brown's at-will employment status and (2) if so did the hospital breach the oral contract, we grant Brown's second point of error. Accordingly, Brown's first point of error is sustained and her second point of error is denied in part and granted in part.
DUE PROCESS CLAIM
Brown's third point of error contends her due process claim survives summary judgment attack (1) if her contract claim survives because she would hold a vested property interest in her employment and (2) because a question of fact remains regarding whether she voluntarily resigned her position.
First, it is undisputed that Brown is a "public employee" of the Montgomery County Hospital District. The United States Supreme Court has held that "some kind of hearing" is ordinarily a constitutional requirement for due process purposes before a public employee who has a property interest in his job may be terminated. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
In order to determine whether Brown has a property interest in continued employment sufficient to entitle Brown to due process protection, one looks to state law. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Schaper v. City of Huntsville, 813 F.2d 709, 713 (5th Cir. 1987). Under Texas law, Brown can show a valid property interest if she can show that a valid and enforceable contract of employment exists. If a contract exists, Brown is entitled to procedural due process before the Hospital can take Brown's continued employment interest away. Schaper, 813 F.2d at 714; Findeisen v. North East I.S.D., 749 F.2d 234, 237 (5th Cir.1984).
As previously discussed, upon remand, if the fact finder finds that Brown had an enforceable oral contract of employment that she could continue to work for Montgomery County Hospital District as long as she was doing a good job and that she would not be fired unless there was "good cause" to do so, this agreement is enforceable under Texas law. In the event of an affirmative finding that an oral contract of employment *586 with Montgomery County Hospital District exists, Brown was entitled to pre-termination procedural due process which specifically includes:
(1) written notice of the reasons for termination prior to the termination.
(2) an effective opportunity to rebut those reasons through written response as well as an oral response before the official in charge of making the termination decision.
Glenn v. Newman, 614 F.2d 467, 472 (5th Cir.1980). See also Findeisen v. North East I.S.D., 749 F.2d at 237.
In this case, Brown's summary judgment evidence provides that Brown was denied an explanation of the employer's evidence for threatening termination and an effective opportunity for rebuttal. Brown was first told that there was a number of complaints against her but Appellee Spring would not discuss any of the specifics of such complaints. Brown was then asked to resign or be terminated. After Appellant requested an opportunity to confront those who had complained, Spring refused. In addition, after Appellant requested that a grievance be filed against Appellee Spring, such request was also denied.
The only defense raised by Appellees regarding the lack of procedural due process against the hospital is the hospital's assertion that an employee is not entitled to any procedural due process if he or she is "constructively discharged", citing Fowler v. Carrollton Public Library, 799 F.2d 976, 981 (5th Cir.1986). However, such a proposition is inapplicable when an employee is told to "resign or be fired", and it is the employer's intention to provide such a choice in order to deprive the employee of due process. See Findeisen, 749 F.2d at 237-38; Bueno v. City of Donna, 714 F.2d 484, 492-93 (5th Cir.1983). Therefore, if a fact finder finds Brown was told to resign or be terminated, Brown is entitled to claim a violation of due process rights against the Hospital.
However, assuming all Brown's allegations to be true, Bremer and Spring individually are entitled to qualified immunity as a matter of law. See Boozier v. Hambrick, 846 S.W.2d 593, 597-98 (Tex.App. Houston [1st Dist.] 1993, no writ)(city official entitled to summary judgment as a matter of law).[5] Whether the individual appellees are entitled to immunity is a question of law for the court. Pfannstiel, 918 F.2d at 1183; Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).
Spring and Bremer's controverting summary judgment evidence provides that both exercised discretion and judgment in their dealing with Brown and that both acted in good faith within the scope of their authority. *587 Therefore, both Spring and Bremer are immune from personal liability.
Accordingly, Brown's third point of error is granted as to the hospital and denied as to Spring and Bremer individually.
LIBERTY INTEREST CLAIMS
Brown's final point of error argues that the trial court should have considered Brown's claim that her liberty interest was violated when she was retaliated against for speaking out on matters of public concern.
Brown first claims she was denied a liberty interest because her free speech rights were allegedly violated. Specifically, she claims that she was "terminated" for speaking out about the work performance of another employee, Jewell Smith. Whether Brown's speech was protected is a legal question for the court. Terrell v. University of Texas System Police, 792 F.2d 1360, 1361-62 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987).
In order to establish a first amendment violation, Brown must first prove that: (1) her speech involved a matter of public concern; (2) that her interest in commenting on matters of public concern is greater than appellees' interest in promoting the efficiency of the public services performed by the hospital; and (3) her speech motivated appellees' decision to fire her. Frazier v. King, 873 F.2d 820, 825 (5th Cir.), cert. denied, 493 U.S. 977, 110 S.Ct. 502, 107 L.Ed.2d 504 (1989); Thompson v. City of Starkville, 901 F.2d 456 (5th Cir.1990).
Brown fails on all three prongs of the free speech test. First, her speech did not involve a public concern. Brown claims in her affidavit she was fired for speaking out against a fellow employee. Specifically, she states:
I believe I was terminated for speaking out about the decline in patient safety and laboratory care based on Jewell Smith's deficient work performance. I also believe that I was retaliated against for suggesting that Jewell Smith be terminated. I knew that Jewell Smith and Susie Spring were personal friends, but I did not believe I would be terminated for trying to protect the working conditions in the laboratory.
Speech, as in Brown's case, that addresses personal concerns and complaints or personal employment disputes of the plaintiff, and which is not disseminated to others to inform them of wrongdoing by a governmental agency, is not considered a public concern. Terrell, 792 F.2d at 1361-63. Classic internal grievances are not public concerns. Thompson, 901 F.2d at 465-67. The Terrell court, citing the United States Supreme Court in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), held:
In determine whether a particular speech or writing addressed a matter of public concern, we must decide whether the plaintiff was deprived of fundamental rights by virtue of working for the government. Because almost anything that occurs within a public agency could be of concern to the public, we do not focus on the inherent interest or importance of the matters discussed by the employee. Rather, our task is to decide whether the speech at issue in a particular case was made primarily in the plaintiff's role as a citizen or primarily in his role as employee.
Terrell, 792 F.2d at 1362. Brown never attempts to intimate that her actions were for the public good, instead of for her own individual interests.
Furthermore, Brown produced no evidence of any potential danger or decline in patient care or safety due to Smith's performance as alleged in Brown's affidavit. Such conclusory and unsupported statements are not competent controverting evidence. TEX.R. CIV. P. 166a(c); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). Since Brown's speech did not involve any issue of public concern, the prong two balancing test is moot, and there is no summary judgment evidence to support the conclusion that Brown's speech motivated Appellees to fire her.
Second, Brown claims she was denied a liberty interest, because her resignation somehow jeopardized her future employment opportunities. Clearly, Brown was not terminated. *588 However, even if she were, Appellees are still entitled to summary judgment.
An employee is denied a liberty interest if that employee is discharged under circumstances that put his reputation, honor, or integrity at stake so as to impose a stigma against her that forecloses the freedom to take advantage of other employment opportunities, unless the employee is granted a name-clearing hearing. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). Brown, to state a cause of action for denial of a name-clearing hearing, must show that: (1) she was discharged, (2) defamatory charges were made against her in connection with the discharge; (3) the charges were made public; (4) the charges were false; (5) no meaningful public hearing was conducted predischarge; (6) she requested a hearing to clear her name; and (7) the request was denied. Rosenstein v. City of Dallas, 876 F.2d 392, 395-96 (5th Cir.1989).
In this case, the summary judgment evidence leaves open the question of whether Brown was constructively discharged or resigned. However, the summary judgment evidence conclusively established that there were no publicly defamatory charges made against her; and she did not request (and thus was not denied) a name-clearing hearing. The summary judgment evidence conclusively establishes that Brown cannot establish any one element of her liberty interest cause of action. Moreover, if only one element of Brown's liberty cause of action was disproved, appellees are entitled to summary judgment as a matter of law. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). Brown's fourth point of error is denied.
Summary judgment is AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
NOTES
[*] The Honorable Ron Carr, sitting by assignment pursuant to TEX. GOV'T CODE ANN. § 74.003(b) (Vernon 1988).
[1] Appellant Valarie Brown asserted the following causes of action in her lawsuit; 1) violations of her due process rights under the United States Constitution and under the Texas Constitution, Article I, Section 19; 2) violation of Appellant's First Amendment rights under the United States Constitution and under the Texas Constitution, Article I, Section 8; 3) breach of contract based on the Hospital's termination of Appellant's employment without good cause and the Hospital's failing to follow its own written procedures by disallowing Appellant an opportunity to present a formal grievance to the hospital; and 4) violation of Appellant's liberty interests by punishing Appellant in absence of personal culpability.
[2] Because Brown has not made any contract claim against Spring or Bremer, individually, we hold Spring and Bremer entitled to summary judgment on Brown's contract claim as a matter of law.
[3] Appellee Bremer was not physically present during the September 4, 1991, meeting, and thus, Bremer's summary judgment affidavit does not address what representations were made by Spring to Brown at that meeting.
[4] In addition, neither Spring or Bremer may testify as to Brown's underlying intention when she submitted her September 4, 1991, resignation letter. See Lawrence v. T.D. Industries, 730 S.W.2d 843, 845 (Tex.App.Dallas 1987, writ ref'd n.r.e.).
[5] Public policy encourages public officers to carry out their duties without fear of personal liability. Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex.App.Waco 1990, writ denied). "Government officers have a common-law immunity from personal liability while performing discretionary duties in good faith within the scope of their authority. See Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425, 427 (1954). This immunity, variously known as governmental, official quasi-judicial or qualified immunity, evolved out of a public policy that encourages public officers to carry out their duties without fear of personal liability. Austin v. Hale, 711 S.W.2d 64, 68 (Tex. App.Waco 1986, no writ) (quoting Baker v. Story, 621 S.W.2d 639, 643-44 (Tex.Civ.App.San Antonio 1981, writ ref'd n.r.e.)). Otherwise, "the prudent would be reluctant to enter governmental service and even competent persons who entered public life would not be zealous in discharging their duties." Baker, 621 S.W.2d at 643-44. Official immunity protects peace officers. Wyse v. Department of Public Safety, 733 S.W.2d 224, 227 (Tex.App.Waco 1986, writ ref'd n.r.e.); Dent v. City of Dallas, 729 S.W.2d 114, 117 (Tex.App.Dallas 1986, writ ref'd n.r.e.); Anderson v. Higdon, 695 S.W.2d 320, 324 (Tex.App.Waco 1985, writ ref'd n.r.e.)....
The Supreme Court has drawn this distinction between discretionary and ministerial functions:
Where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial.
Rains v. Simpson, 50 Tex. 495, 501 (1878)(quoting Commissioner v. Smith, 5 Tex. 471, 479 (1849)); Miller v. State, 53 S.W.2d 838, 840 (Tex.Civ.App.Amarillo 1932, writ ref'd)." Id. at 101, 264 S.W.2d 425.
Additionally, Brown has not addressed qualified immunity or agency on appeal so it has been waived and judgment for Spring and Bremer, individually, affirmed. Garcia v. Robinson, 817 S.W.2d 59 (Tex.1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564409/ | 929 S.W.2d 169 (1996)
55 Ark.App. 42
Jerry PENNINGTON d/b/a K & K Construction Company, Appellant,
v.
Walter D. RHODES and Georgetta B. Rhodes, His Wife, Appellees.
No. CA 95-847.
Court of Appeals of Arkansas, Division II.
September 25, 1996.
*171 C. Mac Norton, Pine Bluff, for appellant.
Maxie G. Kizer, Pine Bluff, for appellees.
GRIFFEN, Judge.
Appellees Walter D. Rhodes and Georgetta B. Rhodes, his wife, sued Jerry Pennington d/b/a K & K Construction Company ("Pennington" or "appellant") for breach of contract in the Circuit Court of Jefferson County. Their complaint alleged that Pennington contracted with them to build a house during the summer of 1988, and that Pennington built the house and was paid $68,541.40 in October 1988. The complaint also alleged that appellees later discovered defective workmanship and materials that caused structural damage to the foundation, masonry, walls, framing, roof, and floor joists of the house, for which appellees sought judgment for damages totaling $150,000. Pennington admitted contracting with appellees, building their house, and being paid $68,541.40, but denied breaching their contract and asserted that he was not notified about alleged defects in materials and workmanship so that he could cure them if they existed.
The case was tried to a jury over two days, and the jury returned a verdict awarding damages to appellees of $68,541.40, the precise amount they paid Pennington. Pennington filed a motion for judgment notwithstanding the verdict, and, in the alternative, for new trial, but his motion was denied. Judgment was, therefore, entered against him for $68,541.40, plus costs of $109.75, and attorney fees of $6854.14, from which Pennington has brought this appeal. He contends that the trial court erred in denying his motion for directed verdict at the end of appellees' case, erred in denying his post-trial motion for judgment notwithstanding the verdict or for new trial because the jury verdict is not supported by the evidence, and also that the trial court should have sustained his motion for mistrial based upon the closing argument by counsel for appellees. We hold that the verdict was not supported by the evidence. Therefore, we reverse and remand for new trial.
PENNINGTON'S MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT
Rule 50(a) of the Arkansas Rules of Civil Procedure provides:
[a] party may move for a directed verdict at the close of the evidence offered by an opponent and may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the extent as if the motion had not been made. A party may also move for a directed verdict at the close of all of the evidence.
Rule 50(b) provides:
[w]henever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not more than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or, if a verdict was not returned, that party may move for judgment *172 in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed, or it may order a new trial.
The intent of Rule 50(a) is to require a party testing the sufficiency of the evidence to first submit the question to the trial court, thereby permitting that court to rule at the conclusion of all the evidence but prior to verdict, and thus preserving the specific question for appeal. Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990). On the other hand, the motion for judgment n.o.v. is permitted by Rule 50(b) for the express purpose of not only again raising the question of sufficiency of the evidence but also all other questions properly preserved during trial, all of which are to be considered by the court in light of the verdict rendered. Id. The motion for a directed verdict is a condition precedent to moving for a judgment notwithstanding the verdict based on the reasoning that a motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence. Wheeler Motor Co., Inc. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993).
Appellate review of a motion for a directed verdict entails determining whether the nonmovant's proof was so insubstantial as to require a jury verdict, if entered in his behalf, to be set aside. Nicholson v. Simmons First Nat'l Corp., 312 Ark. 291, 849 S.W.2d 483 (1993). The standard of review in determining the propriety of refusing a directed-verdict motion is whether the verdict of the jury is supported by substantial evidence, that is, evidence that is sufficient to compel a conclusion one way or the other and that goes beyond suspicion or conjecture. Barnes, Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993).
Pennington appears to concede that the appellees presented enough evidence to justify denial of his motion for directed verdict as to breach of contract, and the record contains considerable evidence that the house Pennington constructed was defective. Appellee Georgetta Rhodes and seven other witnesses testified about defects in the house. The sheetrock was cracked despite Pennington's effort to repair it after appellees informed him about that problem. Although the house is totally electric and the Description of Materials provided that it would have a 200 ampere breaker, it was constructed with a 150 ampere breaker which could cause problems with inadequate voltage, according to one expert witness. Although the Description of Materials called for nine and one-fourth inches of insulation to be provided at the ceiling, witnesses testified that less than six inches was found. Two architects, a civil engineer, a retired housing inspector and electrician, and two building contractors testified concerning defects in the roof, walls, brick veneer, and foundation of the house. Although Pennington did not concede that the house was defective, the record contains no proof that these defects were not present.
However, Pennington argues that he was entitled to a directed verdict because he was not given notice of the defects and a reasonable opportunity to correct them before suit was filed. In Pickler v. Fisher, 7 Ark.App. 125, 644 S.W.2d 644 (1983), we rejected the notion that one who purchases what is alleged to be a defective new dwelling must give notice to the seller-builder of each and every defect complained of and that upon failure to do so will have waived any defects not contained in a written notice. While we declined to hold the provisions of the Uniform Commercial Code applicable to all cases involving breach of warranty in new housing, we stated that the buyer is not required to list each and every objection that he would rely on to constitute the breach. Instead, we held that notification need only be with sufficient clarity to apprise the vendor-builder that a breach of implied warranty is being asserted and to give him sufficient opportunity *173 to inspect the premises and correct the defects. Id. The sufficiency of the notice and whether it was given within a reasonable time are ordinarily questions of fact for the trier of fact to determine, and we observed that in doing so the trier of fact could properly consider the superior position of the builder in determining the extent of a defect, the need for correcting it, and the consequences for failing to do so. Id., 7 Ark.App. at 129, 644 S.W.2d at 646.
There was evidence in the case now before us that Pennington was notified at least three times about problems with the house. He attempted to repair some of the problems, but apparently urged the appellees to let some of the observable cracks in walls "run their course." Later investigation by others revealed serious structural defects with the house, as already mentioned. Suffice it to say that the record contains ample proof to support the apparent conclusion by the jury that the house was defective and that Pennington knew about the defects so that he could have undertaken corrections had he been inclined to do so. Therefore, the trial court properly denied his motion for directed verdict on the notice issue.
Pennington also moved for directed verdict at the close of appellees' case on the ground that appellees failed to present proof concerning the value of the defective house. There was proof from three witnesses concerning the estimated cost of repairing the defects. William W. Hope, a civil engineer, testified that it would cost at least $58,000 to repair the foundation, replace and repair defects in brick veneer, walls and floors, repair the roof framing, and provide oversight and design for the work, and that although the house could be repaired the cost could exceed the $58,000 estimate. James L. Scott, a retired builder, testified that the cost to repair the house would be $41,750, but that he did not believe that the house could be repaired and that there would be "significant waste of materials" in trying to repair it. Scott testified that he would not attempt to repair the house, but that he would advise the owners to level it and rebuild. Michael James Ott, a homebuilder and repair and remodeling contractor, estimated that the cost to repair the house with its defects would be $43,540, and he believed that the house could be repaired. However, he emphasized that his estimate did not include foundation repairs which, in his view, would cost more than the total estimated for the remaining work. None of these witnesses was asked to estimate the value of the house with its defects, only the cost of repairing the defects.
In cases involving breach of warranty for a newly constructed house, Arkansas has recognized two ways of proving damages. The preferred measure of damages in construction contract cases involving new structures is to use the cost of repairing the defects so that the vendee-owner recovers an amount that will repair the house to the quality expected when the parties struck their bargain. Daniel v. Quick, 270 Ark. 528, 606 S.W.2d 81 (1980). The other method is to fix damages as the difference in the house's value as defective versus its value without defects. See Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978). In Williams v. Charles Sloan, Inc., 17 Ark.App. 247, 706 S.W.2d 405 (1986), we reversed a judgment based on a jury verdict of $28,000 in favor of purchasers of a defective house because the verdict was not supported by the evidence based on the difference in value measure of damages, and we cited the two methods of determining damages where breach of a construction contract results in incomplete or defective construction. The Restatement (Second) of Contracts, § 348(2) (1979) defines these methods as follows:
§ 348. Alternatives to Loss in Value of Performance
....
(2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on
(a) the diminution in the market price of the property caused by the breach, or
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him. *174 Comment c to Section 348 speaks to the incomplete or defective performance situation, and is instructive concerning when the cost of repairs standard may be preferred over the diminution in value standard:
Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects. Even if this gives him a recovery somewhat in excess of the loss in value to him, it is better that he receive a small windfall than that he be under-compensated by being limited to the resulting diminution in the market value of his property.
Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been improperly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party. Damages based on the cost to remedy the defects would then give the injured party a recovery greatly in excess of the loss in value to him and result in a substantial windfall. Such an award will not be made. It is sometimes said that the award would involve "economic waste," but this is a misleading expression since an injured party will not, even if awarded an excessive amount of damages, usually pay to have the defects remedied if to do so will cost him more than the resulting increase in value to him. If an award based on the cost to remedy the defects would clearly be excessive and the injured party does not prove the actual loss in value to him, damages will be based instead on the difference between the market price that the property would have had without the defects and the market price of the property with the defects. This diminution in market price is the least possible loss in value to the injured party, since he could always sell the property on the market even if it had no special value to him.
Restatement (Second) of Contracts § 348 cmt. c (1979).
Although the Restatement approach to determining if the repair costs are disproportionate looks to the probable loss of value caused by the defective construction, Arkansas looks to whether the repair costs are disproportionate to the results to be obtained from curing the defects where the building is a dwelling built on the owner's property for his occupancy. Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978). In that case the Supreme Court addressed the proper measure of damages applicable in cases involving a suit by a vendee-owner against a vendor-builder alleging defective construction of a new house, and observed that the underlying purpose in awarding damages for breach of contract is to place the injured party in as good a position as he would have been had the contract been performed. Id. (citing Rebsamen Companies, Inc. v. Arkansas St. Hosp., 258 Ark. 160, 522 S.W.2d 845 (1975)). However, the Court also observed that the difference in the value of a building as erected and its value if it had been constructed according to the contract is not always appropriate where the contractor's performance is defective, particularly where a house is built on the owner's property for his own occupancy and the aesthetic value of enjoying a properly constructed home is involved. Carter, supra.
We stated in Williams that although judicial preference for the cost-of-repairs measure and the economic-waste exception is an effort to avoid the situation where the contractor is required to tear down a structure or otherwise commit economic waste to correct a defect that does not detract from the market value as much as it would cost to repair it, this preference for the cost-of-repair measure and the economic waste exception does not limit the injured buyer to only one measure of damages. 17 Ark.App. at 251, 706 S.W.2d at 407. Writing for the court in Williams, then Judge (now Justice) Corbin stated that "the court would be correct in applying the cost of repairs measure to determine the damages where the injured buyer asserts damages based on the difference in market value and the contractor presents evidence that the cost of repairing the defects would be less than the difference in market value." Id. (emphasis added). *175 We ultimately held that the $28,000 verdict for the homeowner in Williams was not supported by substantial evidence because the evidence in that case only supported a verdict of $6,500 based on the difference between the market value of the house as defective at the time of the breach, and its value had it been constructed in accordance with the contract. However, we rejected the builders' contention that they were entitled to a judgment notwithstanding the verdict because the trial court had used an improper measure of damages (difference in market value) where the builders presented no evidence that cost of repairs was the correct measure of damages.
The same reasoning applies in this case, although we are presented with the opposite situation. Here, the buyers presented proof concerning the cost of repairs but no proof on the difference in market value of their house. As the Williams opinion indicated, preference for the cost-of-repairs measure and the economic-waste exception does not limit the injured buyer to only one measure of damages. If Pennington believed that cost of repairs was not the correct measure of damages, he had an opportunity to present evidence on the difference in market value caused by the defects. The mere fact that appellees presented no proof on the difference in market value did not mean that the jury was forced to conjecture or surmise before it could return a verdict on the cost-of-repairs measure of damages.
However, once appellees presented sufficient proof to go to the jury on the cost-of-repairs measure, the burden shifted to Pennington to produce evidence showing (a) either that repairing the defects was unreasonable because it would have involved more destruction of quality workmanship than would have been warranted considering the value likely to be added to the house by making the repairs, or (b) that the repair costs would have been disproportionate to the probable increase in value to appellees resulting from proper construction, so that difference in value would have been the proper measure of damages. Either approach would have required proof regarding the value of the house as defectively constructed and its value if constructed without defect as the contract contemplated. Pennington clearly did not produce that proof, either when appellees rested their case or at the close of all the proof, so the trial court properly denied his motion for directed verdict.
It is true that appellees presented proof from a real-estate appraiser showing the value of the house to be $87,000 without defects. It is also true that appellees paid $68,541.40 to Pennington under their contract. Nevertheless, the contract price certainly should not be deemed the value that the parties agreed the house would have due to the defective construction. There was no proof regarding the value of the house as defectively constructed. The evidence was conflicting on whether the house could be repaired, or whether repairing it was economically feasible, thus presenting a question of fact for the jury to resolve. Before the cost of repairs measure of damages could be deemed improper on the ground that the cost of repairs was disproportionate to the probable value that might be gained from making them, Pennington was obligated to either prove that it would have been unreasonable to repair the defects because doing so would have necessitated the loss of quality construction greatly exceeding whatever benefit that might have been added to the house by the repairs, or prove that the repair costs were disproportionate to the value that would have been added to the house by making the repairs. Either approach required proof of what the house is worth in its defective state. Pennington's failure to present that proof justified denial of his motion for directed verdict and his motion for judgment n.o.v. based on the measure of damages argument.
In summary, the general rule preferred in Arkansas in cases involving defective performance of a contract for a newly constructed house is that the cost of correcting the defects, rather than the difference in value, is the proper measure of damages where the repairs will not involve unreasonable destruction of quality construction, or the repair cost will not be grossly disproportionate to the benefit to be obtained from making the repairs. This standard applies even when the value of a newly constructed *176 but defective house exceeds the contract price, because the owner's interest "is in having defective construction corrected so that he and his family may enjoy a properly constructed dwelling and he is not concerned with offsetting any loss on a possible resale of the property. In such a case, aesthetic values are properly involved." Carter v. Quick, 263 Ark. at 209, 563 S.W.2d at 465. Nevertheless, the buyer-owner is not limited to the cost of repairs measure of damages. Williams, supra. The seller-builder of the defective new dwelling has the burden of proving that the cost-of-repairs standard is improper. This proof may take the form of evidence showing that repairing the defects will involve unreasonable destruction of quality construction or that the cost of repairs would be grossly disproportionate to the increase in value to be obtained from making them. If the seller-builder fails to present that proof, as in this case, he is not entitled to a directed verdict or judgment notwithstanding the verdict where the owner has introduced proof showing the cost of repairs.
PENNINGTON'S MOTION FOR NEW TRIAL
Pennington also contends that the trial court erred by denying his motion for new trial pursuant to ARCP 59, arguing that the verdict is clearly contrary to the preponderance of the evidence and clearly contrary to law. We agree that the verdict is not supported by the evidence.
The jury returned a verdict for appellees of $68,541.60, the precise amount that appellees paid Pennington under their contract. There was no proof that this amount equaled the cost of repairing the defects to the house. There was no proof that the house was worthless; indeed, appellees introduced proof through witness Hope, the civil engineer, that the house was worth repairing even if the cost of repairs equaled or exceeded $58,000. Although another witness testified that he did not believe that the house could be repaired and would not counsel trying to repair it, that testimony did not mean that the house was worthless, rather that the witness did not believe that the defects could be repaired.
The jury was apparently persuaded to return a verdict awarding the appellees the amount they paid Pennington based on the closing argument by counsel for appellees. During that argument, counsel for appellees told the jury that it could return a verdict awarding the money that appellees had paid. Counsel for Pennington objected. The trial court overruled the objection on the ground that arguments of counsel are not evidence. We decline to disturb that ruling out of deference to the exercise of the trial judge's discretion, and find no abuse of discretion in the ruling. See also Faught v. Ligon Specialized Hauler, Inc., 273 Ark. 259, 619 S.W.2d 627 (1981).
We are constrained, however, to hold that the verdict is not supported by the evidence where it did not conform to any of the cost of repairs proof and the record contains no proof about the value of the house as defectively constructed. In effect, the jury awarded the appellees the same relief that they might have obtained upon a complaint for rescission of the contract and restitution. The fundamental difference, however, is that while return of the purchase price is permissible in an action for rescission on the theory that the fundamental purpose of the contract has failed resulting in the complaining party receiving no benefit from its bargain, an action for breach of contract implies that the complaining party received less benefit than it had a right to expect because of the other party's breach. In this case, appellees proved that they paid $68,541.40, and that Pennington built a house that was defective. They sued contending that Pennington had built a defective house, not that the house is worthless. Therefore, the jury verdict awarding them their purchase price is not supported by the evidence and must be reversed.
The appellees produced evidence through one witness that it would cost at least $58,000 to repair the defects. Pursuant to our decision in Williams v. Charles Sloan, Inc., supra. we reverse the judgment below and remand to the trial judge with an instruction that the verdict be reduced to $58,000 to conform to the evidence, if appellees agree. If appellees do not agree to the remittitur, *177 the trial judge should enter an order granting Pennington's motion for new trial.
Reversed and remanded.
ROBBINS and STROUD, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563305/ | 960 A.2d 842 (2008)
MILLER
v.
COM., DEPT. OF TRANSP., BUREAU OF DRIVER LICENSING.
No. 120 EAL (2008).
Supreme Court of Pennsylvania.
September 22, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563205/ | 960 A.2d 320 (2008)
THOMPSON
v.
U.S.
No. 07-CM-1069.
District of Columbia Court of Appeals.
September 18, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563109/ | 95 F.2d 719 (1938)
COMMISSIONER OF INTERNAL REVENUE
v.
EDWARDS DRILLING CO.
No. 8600.
Circuit Court of Appeals, Fifth Circuit.
March 26, 1938.
S. Dee Hanson, Norman D. Keller, and Sewall Key, Sp. Assts. to Atty. Gen., James W. Morris, Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and John E. Marshall, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for petitioner.
Walter E. Barton, of Washington, D. C., for respondent.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
HUTCHESON, Circuit Judge.
Respondent, an oil well drilling company, in the year 1931, drilled for others 120 wells in the East Texas field. Each of these wells was drilled under a contract, providing for payment out of oil produced from it, of the agreed price for drilling it. As to each of the wells drilled except 3, 2 contracted October 6, at $20,500 each, and 1 October 8, 1931, at $50,000, the contract price was paid out of oil produced from it within the year. From these 3, though completed in 1931, the taxpayer received only $1,821.55 within the year. It therefore returned only that amount as income, though it deducted as ordinary and necessary business expenses, the amount of $36,113.11 as the cost of drilling the well.
The Commissioner accepted the deduction as correct, but finding that the taxpayer was on an accrual basis, that the completion of the wells had with sufficient certainty accrued the payments for them, and that they had a present worth of $40,821.91, determined a deficiency accordingly. The Board, on appeal to it, concurred with the Commissioner that the taxpayer was on an accrual basis, but not with his determination that the present worth of the oil payments had accrued as taxable income within the year. In a carefully considered opinion, 35 B.T.A. 341, finding this determination without support in the evidence, it found that the future payments, though having a present speculative worth of $29,750, were dependent upon so many contingencies which might never happen, affected with so many uncertainties, as that to require the taxpayer to pay a tax on their value as income received within the year, would be to treat as income what might never be received. It redetermined the deficiency accordingly.
The Commissioner, assailing this finding and redetermination, insists that it is not only unsupported by the evidence, but is in the face of these undisputed facts; the proven character of the field as of large productive capacity; that all of the other wells but these, drilled in that year by the taxpayer, had paid out within the year; that in the next year the taxpayer received, by payments upon, and by sale of, his interest in the $50,000 contract, $11,611.45, and within four years was paid in full out *720 of the production from the other two wells the $41,000 contracted for.
The taxpayer, urging that the Board's findings have not been challenged by any assignment of error requiring an examination of the evidence, that the question presented by the petition for review must be determined on these findings alone, and that they are definite, specific, and precise, and fully support the Board's conclusion, moved to strike the statement of the evidence as improperly brought up.
It urges further that, if the statement of the evidence is to be considered, it will be found not only not contradictory of, but not even consistent with, the Board's findings.
We disagree with the taxpayer that the assignment of error on which the Commissioner relies is insufficient to bring in review here the evidence on which the Board acted. We think it squarely challenges the judgment and findings as unsupported by competent and substantial evidence. Dayton Co. v. McMahon, 8 Cir., 82 F.2d 942; Tracy v. Commissioner, 6 Cir., 53 F.2d 575; Dayton Co. v. Commissioner, 8 Cir., 90 F.2d 767. The motion to strike the statement is overruled.
We agree with the taxpayer, however, that the findings of the Board, as they appear fully set out in its opinion and report, are not without substantial support in the evidence. Because the Board's opinion has set these facts out fully, we will not set them out here, other than to say that the greatly disturbed and uncertain conditions in the field shown by the evidence, and found by it when the 3 wells in question were drilled, arising out of the strict limitations on production imposed by the Commission upon the law abiding, and the wastage and drainage caused by the tremendous overproduction of the lawless, rendered greatly uncertain what was, in the earlier part of the year, fairly certain, that wells drilled in the field on contracts would pay out. The hazards and uncertainties attending the recovery by the taxpayer of the oil payments promised it are adequately shown, we think, by the fact that it was able to obtain a $50,000 contract for the drilling of a well which cost it only $13,000, and a $20,000 contract for the drilling of each of 2 wells which cost it $10,000 each to complete, the fact that though it had a $36,000 net interest in the $50,000 contract, it sold it for $9,000 cash, and the further fact found by the Board, that the present worth of the $91,000 oil payment contracts, after the wells were completed, was only $29,750.
It is of course true, as the Board points out, that under the accrual method of accounting employed by petitioner, items must be accrued as income when the events occur to fix the amounts due and determine liability to pay. United States v. Anderson, 269 U.S. 422, 46 S. Ct. 131, 70 L. Ed. 347. Generally speaking, however, the income tax law is concerned, and its administration should deal only, with, realized losses, and realized gains. Lucas v. American Code Co., 280 U.S. 445, 50 S. Ct. 202, 74 L. Ed. 538, 67 A.L.R. 1010. The taxpayer therefore, is under no obligation to pay a tax on income he might never receive. North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S. Ct. 613, 76 L. Ed. 1197. A strained construction in administrative efforts to accrue income should be avoided.
Of the many cases supporting this view, Com'r v. Cleveland Trinidad Paving Co., 6 Cir., 62 F.2d 85; McPherson v. Helvering, 62 App.D.C. 325, 67 F.2d 749; Burnet v. Logan, 283 U.S. 404, 51 S. Ct. 550, 75 L. Ed. 1143; Woods v. Lewellyn, 3 Cir., 252 F. 106, may be cited.
The order of the Board is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563128/ | 960 A.2d 1135 (2008)
In re Barry K. DOWNEY, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 416968).
No. 08-BG-1160.
District of Columbia Court of Appeals.
December 4, 2008.
Aron U. Raskas and Andrew Jay Graham, Baltimore, MD, were on the motion to stay.
Wallace E. Shipp, Jr., Bar Counsel and William R. Ross, Assistant Bar Counsel, were on the opposition to the motion to stay.
Before BLACKBURNE-RIGSBY, Associate Judge, FARRELL, Associate Judge, Retired, and PRYOR, Senior Judge.
*1136 PER CURIAM:
Respondent Barry K. Downey was admitted to the bar of this court in 1989. He is a principal in the firm of Smith and Downey, focuses his practice on employee benefits law, has provided pro bono services throughout his legal career, and is active in his church and its charitable endeavors. Mr. Downey has not been the subject of disciplinary proceedings in this or any other jurisdiction before this case. However, on July 21, 2008, he pleaded guilty to engaging in the business of money transmission without a license, a felony, in violation of D.C. Code § 26-1002 (2001)
The Statement of Offense filed in the U.S. District Court for the District of Columbia, to which respondent has stipulated as part of his plea, demonstrates that he is the co-founder and a director of a company called e-gold, Ltd., and is the Secretary, Vice-President, and Director of another company, Gold & Silver Reserve, Inc. The former is an alternative payment system operated over the internet, and the latter is the parent company of e-gold. Respondent was not actively involved in the day-to-day operation of the money transmission businesses because he lives in Maryland and they operate primarily in Florida; but he did participate in developing the business model for the companies, including assuring that they complied with federal and state law. Because his expertise is in employee benefits, he consulted another attorney in this regard, who confirmed his belief that the companies did not have to be licensed as money transmission businesses. The United States government, however, disagreed and charged him as indicated above.[1]
Respondent accepted the government's plea offer, acknowledging that his legal advice regarding compliance had been incorrect and that the businesses had been operating without the required licenses. He promptly reported his guilty plea to the Office of Bar Counsel, and he and his business partners have taken steps to see that the companies are properly licensed and monitored, and have ceased operating them in the meantime.
On September 17, 2008, Bar Counsel notified this court of respondent's guilty plea to a "serious crime," as defined by D.C. Bar R. XI, § 10(b). Normally, this court would have temporarily suspended respondent, but before such an order was issued he filed a motion to stay that action. Bar Counsel has filed an opposition.
This court's rules provide that upon the filing of a certified copy of a docket entry or record demonstrating that a member of its bar has pleaded guilty to a "serious crime," which includes any felony, the member will be immediately suspended from the practice of law pending final disposition of the disciplinary proceeding. D.C. Bar R. XI, § 10(b), (c). However, for "good cause shown," the court may "set aside such order ... when it appears in the interests of justice to do so." Id. § 10(c). In another context, we have said that "good cause is to be determined `in light of the circumstances of each case[ ].'"[2] That principle should apply in this context as well. But, because we have not had occasion to discuss before the considerations that guide application of Rule 10(c)'s set-aside provision, we do so briefly here. We grant the motion for a stay.
*1137 "The temporary suspension of an attorney pending the completion of disciplinary proceedings has the same effect as a preliminary injunction barring the attorney from the practice of law." In re Malvin, 466 A.2d 1220, 1223 (D.C.1983) (discussing then D.C. Bar R. XI, § 3(3), which allowed temporary suspension where an attorney "appear[ed] to be causing great public harm by misappropriating funds to his own use, or by other means"). Because respondent has been convicted of a "serious crime," Rule XI, § 10(c) requires him to show "good cause" why the suspension order that would otherwise issue as a matter of course should be stayed or "set aside." Respondent's contrary suggestion that, as in Malvin, the burden here is on Bar Counsel to justify his interim suspension is contrary to § 10(c)'s language and ignores his conviction for a serious crime. The respondent in Malvin had not been so convicted when Bar Counsel sought his emergency suspension. That difference in situations explains the differing assignment of burden of proof in the two cases.
Nevertheless, the concrete factors we considered in Malvin may properly be taken into account in deciding whether respondent has shown good cause to stay the suspension which § 10(c) would otherwise require. Specifically, we must ask (1) whether allowing him to continue to practice poses an undue risk of harm to the public; (2) whether there is a substantial likelihood, based on the available evidence, that the disciplinary proceeding will result in imposition of a "significant sanction"; (3) whether "the balance of injuries" favors stay of the suspension; and (4), related to all these, whether "a suspension is in the public interest." See 466 A.2d at 1223.
Applying these considerations, we conclude that respondent has shown good cause for the court to stay the interim suspension. His prior unblemished record as an attorney; his plea of guilty to what amounts to a strict liability offense involving no scienter or moral turpitude; and the fact that his violation arose from conduct outside of his normal legal practice all suggest a very low degree of risk that permitting him to practice in the interim will harm the public. For the same reasons, but subject of course to development of a factual record in the disciplinary process, we think that the likelihood that respondent will receive a significant sanction, i.e., a suspension (if at all) of more than brief duration, is very small. Stated differently, there is a reasonable possibility on this record that interim suspension might exceed the sanction that will eventually be imposed on respondent. Considering, finally, the harm to respondent's livelihood and ability to support his family that interim suspension may entail, we conclude that respondent has met his burden to show good cause for why the court should stay its hand.
Accordingly, we grant respondent's motion to stay the suspension that § 10(c) would otherwise require, without prejudice to Bar Counsel's moving to vacate the stay after the Board on Professional Responsibility's report and recommendation has been filed.
So ordered.
NOTES
[1] While there is no allegation of any such impropriety by either of the companies or respondent, businesses of this type are of concern to the government because of their money laundering potential.
[2] Restaurant Equip. & Supply Depot, Inc. v. Gutierrez, 852 A.2d 951, 956 (D.C.2004) (citation omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459656/ | 392 S.W.2d 168 (1965)
Morton N. GOLDBERG, Appellant,
v.
Mary Margaret GOLDBERG, Appellee.
No. 16648.
Court of Civil Appeals of Texas, Fort Worth.
June 4, 1965.
*169 Brantley Pringle, Fort Worth, for appellant.
Tilley, Hyder & Law, Thos. H. Law and Robert M. Randolph, Fort Worth, for appellee.
MASSEY, Chief Justice.
Plaintiff Mary Margaret Goldberg sued defendant Morton N. Goldberg for divorce. Defendant filed his cross-action for like relief against plaintiff. Following a trial before the court without a jury judgment was rendered for plaintiff. The defendant appealed. Plaintiff filed a cross-appeal.
Judgment affirmed.
Defendant's complaint is that there was error in the judgment in respect to attorney's fees adjudged against him, and in the amount awarded. Further, his complaint is of the trial court's award to plaintiff of: a one-half interest in a promissory note received on sale of what he claims was his separate interest in certain property, an amount in dollars representing one-half the cash surrender value of his life insurance policies, and an amount in dollars representing one-half the value of his clinic assets.
It is obvious from the language of the judgment that except for the attorney's fees, the court intended to make a "split down the middle" of the community property and/or the value thereof, awarding one-half to each party. The court intended to give each party what was his or her separate property. In any event, the court was acquainted with the property with which it dealt, whether its character constituted community or separate property. Additionally, the court intended that the defendant pay all the reasonable and necessary attorney's fees of plaintiff, found in the amount of $7,500.00. Judgment for the attorney's fees amount was awarded directly to the "law firm of Tilley, Hyder & Law."
Relative to the property award, predicate for defendant's complaint lies in his contention *170 that such was his personal property. No part of the property was real estate. Art. 4638, Vernon's Ann.Tex.Civ.St., "Division of property", provides that upon pronouncing a decree of divorce a court shall also order a division of the estate of the parties in such a way as the court shall deem just and right, etc. In Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923), it was stated: "For the purpose of doing equity, the court may award all the personal property to either spouse, * * *." See commentary by Professor William O. Huie, on Texas' Community Property Law, in Vol. 13, V.A.T.S., § 12, "Division on Divorce", beginning at p. 45. See also Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313 (1939); Grant v. Grant, 351 S.W.2d 897 (Waco Civ.App., 1961, writ dism.).
The fact that the property might constitute separate property of the defendant (a matter in dispute) is of no consequence. Under the law the court, in the exercise of equity powers pursuant to Art. 4638, is authorized to take the separate property of one party and award it to the other in a decree made pursuant to divorce. Such an award will not be disturbed unless there is a clear abuse of discretion. Mozisek v. Mozisek, 365 S.W.2d 669 (Fort Worth Civ.App., 1963, writ dism.).
The defendant does not premise his contention of error upon any abuse of discretion as such is usually considered. Indeed the record fails to substantiate any abuse. He does, however, contend that the award to the wife in effect granted permanent alimony. We believe the contention is spurious and hold that it has no merit. Plaintiff was awarded nothing in the nature of property necessarily deliverable by defendant as property he will or might acquire subsequent to the divorce. The award, as of property, is a portion of such existent at time the divorce was granted. In no sense did the award include alimony to accrue subsequently.
We hold against the defendant's contention on the matter of attorney's fees. Evidence thereon introduced before the court, without objection from the defendant, adequately supports the amount awarded. Such was awarded direct to the law firm of Tilley, Hyder and Law, and in this respect the judgment was unusual, but under the circumstances of the case would not amount to reversible error. The record clearly reflects that the law firm represented the plaintiff from the beginning and that no other attorney participated in her behalf. Two members of the firm, Thomas H. Law and Robert M. Randolph, submitted themselves to the jurisdiction of the court as parties in the case during the pendency of the litigation. Occasion therefor was in connection with their request for injunctive relief against the defendant and another.
Plaintiff's petition alleged that she had employed said firm as attorneys to represent her in the divorce proceeding and had contracted to pay them a reasonable fee therefor, that such services were necessary, and that she had no separate property or income with which to pay the fee. The prayer of the petition omitted reference to an attorney's fee, but contained a prayer for general relief. In that part of the judgment of the court antecedent to the portion containing the order and decree the following language appears: "The law firm of Tilley, Hyder & Law, attorneys for Plaintiff, should be awarded attorneys' fees in the amount of $7,500.00, * * * paid by Defendant." Subsequent thereto the judgment provided: "It is further ORDERED, ADJUDGED and DECREED that the law firm of Tilley, Hyder & Law have and recover from Defendant the sum of $7,500.00 as reasonable attorneys' fees for their services herein."
As between plaintiff and defendant, at least, the issue upon the matter of attorney's fees was before the court as tried without objection and with the consent of the parties. *171 Texas Rules of Civil Procedure, Rule 67, "Amendments to Conform to Issues Tried Without Objection". Under this theory the right of the plaintiff to attorney's fees was established in the evidence and the defendant's liability therefor in the reasonable amount found by the court was likewise established. Considered as error the entry of judgment decreeing that defendant should pay the attorney's fees direct to plaintiff's attorneys, rather than to plaintiff, would be an error of which the plaintiff, not the defendant, might have cause for complaint. She does not complain. Had there existed any dispute between plaintiff and her attorneys relative to which should have the right to receive judgment for attorney's fees, the matter could be remanded to the trial court to render a proper judgment in such respect. In such hypothetical dispute the defendant would have no interest, for with the amount of his liability established under circumstances obviating any further exposure to either of said parties' claim against him, based upon the same liability, he could suffer no prejudice. Gulf, C. & S. F. Ry. Co. v. Cooper, 33 Tex. Civ. App. 319, 77 S.W. 263 (CCA of Texas, 1903, no writ hist.).
But there is no such dispute. Plaintiff is entirely satisfied that Tilley, Hyder & Law have the judgment for attorney's fees which might have been a part of her own judgment. We believe this presents a condition no different in aspect from that which would have been existent had she received the judgment and executed to the firm a direct transfer of her interest therein to the extent of the amount of attorney's fees. Anyway, both plaintiff and the law firm are effectively estopped by the judgment from seeking to impose further liability against defendant. Akin v. Akin, 276 S.W.2d 323 (Austin Civ.App., 1955, writ dism.); 20 Tex.Jur.2d 624, "Divorce and Separation," § 300, "Recovery in divorce suit".
We also hold that in this case the award of attorney's fees (by and through plaintiff, under her pleadings, though rendered directly in behalf of Tilley, Hyder & Law) was supported by the prayer for general relief in plaintiff's pleadings. "Except in special situations * * * in § 6.25, the general prayer will authorize a judgment for any relief within the court's jurisdiction, provided such relief is justified by the proof admitted under the allegations of the complaint and is consistent with a theory of the claim reflected in the petition." 2 McDonald, Texas Civil Practice, p. 605, "Pleading: Petition", § 6.26, " B. General Prayer". The special situations to which McDonald referred are without application.
The first three of plaintiff's cross-assignments of error relate to contentions that the trial court erred in the division of the parties' property. We have already stated that any error in the court's conclusions upon the matter of whether the property so awarded was separate or community in character would be immaterial, and that the awards would not be disturbed in the absence of an abuse of discretion. The same thing has full application to the contentions plaintiff has advanced. We perceive no abuse of discretion in the award and apportionment of property. The cross-points of appeal are overruled.
By plaintiff's final cross-assignment complaint is made that she received what was basicly a money judgment only, and that the trial court erred in failing to set aside to her a direct interest in the assets of the parties or imposing an express lien upon the property awarded to the defendant for the security of her money judgment.
In 20 Tex.Jur.2d 561, "Divorce and Separation", § 225, "(Partition of Property) In general", it is said, "Where an equal division of property is called for, if the commissioners on partition find that it is impracticable to allot shares of exact equal value, such inequality may be corrected by charging the share of greater value with *172 a lien in favor of the share of less value, in an amount sufficient to equalize the values, which constitutes an encumbrance in the nature of a vendor's lien against the share of greater value, but which is not considered a personal obligation." The same principle might be said to apply in the instant case, without regard to whether the partition was intended to be equal. The court would have no doubt been entitled to charge the property awarded to the defendant with a lien which would have provided a form of insurance against any action by the defendant to defeat that part of the plaintiff's judgment which amounted to no more than an unsecured judgment in personam.
In 44 Tex.Jur.2d 274, "Partition", § 30, "Accounting; Adjustment of equities", it is stated that pursuant to judicial partition the trial court has authority to adjust and enforce between cotenants every conceivable equity relating to the parties and the property. At. p. 279, § 33, "Owelty", it is stated that property may be divided into shares of unequal value, and the inequality corrected by means of a charge or lien on the more valuable parts in favor of the less valuable ones, with the sum that is thus awarded in order to adjust an inequality in the value of shares referred to as owelty. See Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 140 A.L.R. 1164 (1942), wherein Chief Justice Alexander stated that the "power to award owelty" has always been regarded as necessary to the act of partitioning property, and that the owelty lien or charge, as applied to partitioned land, may be implied in the absence of express agreement.
Had the trial court chosen to set aside to plaintiff a direct interest in the assets of herself and the defendant, as in the form of a lien upon the property of the defendant for the security of what amounted to her judgment in personam, it is not to be doubted that action effecting that result would have been proper. The question here, however, is whether the court erred when it failed to do this when it partitioned the property under Art. 4638.
Action in partition is equitable in nature although taken pursuant to authority and direction of statute. Propriety of such action is measured by the test of whether it amounted to an abuse of discretion. Necessarily, plaintiff has found herself obliged to contend that in its failure and refusal to afford her such additional security the court abused its discretion. She has been unable to cite any authority to substantiate her contention. She has devoted the argument in her brief to an explanation of how the "homestead exemptions" might operate to defeat her; how the law relative to exemptions applicable to levy on cash surrender values of life insurance policies might defeat any satisfaction of her judgment when the beneficiaries therein named are members of the insured's family; how the exemptions applicable to tools of a trade or profession would be available to prevent her levy on the equipment in the defendant's clinic; and, pointing out that her community interest in the accounts receivable of defendant's medical practice is in thousands of small accounts, impractical for garnishment action, she demonstrates that the peculiarities of the situation might militate against her ultimate recovery of the full interest in the property which the court intended that she receive.
We must assume that the trial court considered such possibilities when it rendered judgment. Having given consideration thereto the court elected to make equitable partition of the property by the manner adopted. We cannot say that the court abused its discretion. The cross-assignment of error is overruled.
Judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563183/ | 758 S.W.2d 214 (1988)
WRG ENTERPRISES, INC., Plaintiff/Appellant,
v.
Gentry CROWELL, Secretary of State and W.J. Michael Cody, Attorney General of the State of Tennessee, Defendants/Appellees.
Supreme Court of Tennessee, at Nashville.
September 26, 1988.
Harris A. Gilbert, Gilbert & Milom, Nashville, Errol Copilevitz, John P. Jennings, Jr., Copilevitz, Bryant, Gray & Jennings, P.C., Kansas City, Mo., for plaintiff/appellant.
W.J. Michael Cody, Atty. Gen. & Reporter, Perry Allan Craft, Deputy Atty. Gen., Steven A. Hart, Mark Tyler Seitz, Asst. Attys. Gen., Nashville, for defendants/appellees.
OPINION
O'BRIEN, Justice.
Plaintiff filed an application for a certificate of registration as a professional solicitor with the charitable solicitations division of the Secretary of State's Office. The application was denied. After appropriate hearings pursuant to the Administrative Procedures Act a complaint and petition for review were filed in the Chancery Court for Davidson County challenging the constitutionality of T.C.A. §§ 48-3-513(i) and 48-3-513(k).
The foregoing statutes incorporate two (2) of the provisions of Tennessee's Solicitation of Charitable Funds Act, T.C.A. § 48-3-501, et seq. By agreement of the parties the case was submitted for decision in the trial court on the following written stipulation of facts:
1. WRG Enterprises, Inc. is a for profit corporation, with offices located at 1507 Laurel Street, Sarasota, Florida. Mr. Paul Monville is the president of WRG Enterprises, Inc.
2. WRG Enterprises, Inc. is a professional fund-raising council of charitable funds and a "professional solicitor" as defined in T.C.A. § 48-3-501(5).
3. WRG Enterprises, Inc. was licensed as a professional fund-raising council [sic] of charitable funds in the state of Tennessee for the period between September 12, 1985, and December 31, 1985, pursuant to a certificate of registration issued by the Secretary of State.
*215 4. After WRG Enterprises, Inc. was granted a certificate of registration to solicit charitable funds in Tennessee, the Charitable Solicitations Division of the Office of the Secretary of State became aware of two agreements to solicit charitable funds which called for a commission of thirty-five percent (35%) of "collateral [sic] monies" to be paid to WRG Enterprises, Inc. The first of these agreements was entered into on April 15, 1985, between WRG Enterprises, Inc. and the Dyersburg, Tennessee Jaycees. The second of these agreements was entered into on August 14, 1985, between WRG Enterprises, Inc. and the Optimist Club of White Station, Memphis, Tennessee, Inc. T.C.A. § 48-3-513(k) states that "a professional solicitor's total fee shall not be in excess of fifteen percent (15%) of the gross contributions which he solicits; all fund raising costs shall be included in such gross contributions."
5. WRG Enterprises, Inc. stated on its 1985 application for registration as a professional fund raising council of charitable funds that they intended to implement a solicitation program which included telemarketing. Likewise, WRG Enterprises, Inc's 1986 application for renewal of its certificate of registration states that WRG Enterprises, Inc. intends to implement a solicitation program which includes telemarketing.
6. T.C.A. § 48-3-513(i) states that "telephone solicitation shall not be made by any professional solicitor or his agent, servant, or employee in any manner whatsoever."
7. Based upon the foregoing, the Charitable Solicitations Division of the Office of the Secretary of State denied the renewal of the certificate of registration issued to WRG Enterprises, Inc. on February 28, 1986.
8. WRG Enterprises, Inc. filed a timely request for a hearing before the Secretary of State.
9. WRG Enterprises, Inc., if registered to solicit charitable funds in Tennessee, intends to enter into contracts and may charge a commission in excess of fifteen percent (15%) of gross contributions for services rendered in connection therewith as a professional fund raising council of charitable funds. Additionally, if licensed, WRG Enterprises, Inc. intends to conduct a program of solicitation which includes telemarketing.
10. It is the intent of the parties that all constitutional issues are not to be presented to this forum; however, the parties agree that any constitutional issues may be raised upon appeal to Chancery Court and thereafter.
The chancellor upheld the constitutionality of the code sections in question. An appeal has been taken to this Court pursuant to T.C.A. § 16-4-108 with the sole issue being the constitutional validity of T.C.A. § 48-3-513(i) and § 48-3-513(k).
The challenge mounted here is directed to purported violations of both the First and Fourteenth Amendments to the United States Constitution and Article I, Sec. 19 of the Tennessee Constitution. This Court has previously recognized that regulation of First Amendment rights is subject to exacting judicial review, as well as the duty imposed upon the State to demonstrate that any burden placed on Free Speech Rights must be justified by a compelling State interest. See Bemis Pentecostal Church v. State, 731 S.W.2d 897, 903 (Tenn. 1987). However, we reject appellant's assertion that the burden of proving the legitimacy of a statute challenged on First Amendment grounds rests on the statute's proponent. The authorities cited for this proposition are based on the imposition of injunctive restraint against free speech and the argument rests on the statement that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." See Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575, 1578, 29 L. Ed. 2d 1 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 639, 9 L. Ed. 2d 584 (1963). The burden of proof may be ameliorated to some extent by the strict scrutiny test imposed in First Amendment cases however that burden as well as the burden of persuasion remains with the *216 challenger. This rule prevails even though "A law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional." City of Mobile, Alabama v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980). Nonetheless, statutes should be construed whenever possible so as to uphold their constitutionality. United States v. Vuitch, 402 U.S. 62, 91 S. Ct. 1294, 28 L. Ed. 2d 601 (1971). Also see Fritts v. Wallace, 723 S.W.2d 948, 949 (Tenn. 1987).
We look first to the constitutionality of T.C.A. § 48-3-513. This code section spells out certain restraints imposed by the Solicitation of Charitable Funds Act and contains a series of regulatory provisions. Subsection (i) specifically mandates that "Telephone solicitations shall not be made by any professional solicitor or his agent, servant, or employee in any manner whatsoever."
The United States Supreme Court decisions involving First Amendment limitations on prohibitions against the solicitation of contributions by charitable organizations have been synthesized in three recent cases. Village of Schaumburg v. Citizens for a Better Environment, et al, 444 U.S. 620, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980); Secretary of State of Maryland v. Joseph H. Munson Company, Inc., 467 U.S. 947, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); Riley v. National Federation of the Blind of North Carolina, ___ U.S. ___, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988). There is not any specific reference to telephone solicitations by professional solicitors of contributions on behalf of charitable organizations in any of these three cases. Appellant informs us that there have been only two published cases which have directly considered that prohibition. The North Carolina Legislature enacted a statute making it a misdemeanor to solicit contributions for charities by telephone. In Optimist Club of North Raleigh v. Riley, 563 F. Supp. 847 (E.D.N.C. 1982) the federal district court, citing Village of Schaumburg v. Citizens, supra, struck down the statute, rejecting defendant's assertion that it was narrowly tailored to prevent fraud by regulating the type and manner of charitable solicitations. The court held:
"[P]laintiffs have shown that the total ban of telephone solicitation infringes on the First Amendment rights of professional solicitors and has a substantially restrictive effect not only on the solicitor's right to communicate, but also on the ability of charitable organizations to conduct different types of solicitation campaigns."
In Planned Parenthood League v. Attorney General, 391 Mass. 709, 464 N.E.2d 55 (1984), cert. denied 469 U.S. 858, 105 S. Ct. 189, 83 L. Ed. 2d 122 (1984), the Massachusetts Court reasoned as follows:
"To effectuate legitimate governmental goals, a restriction may regulate in any reasonable way the time, place or manner of speech, provided that the regulation is applied to all speech, regardless of content. Consolidated Edison Company of New York v. Public Service Commission of New York, supra, 447 U.S. [530] at 536, 100 S.Ct. at [2326] 2332 [65 L. Ed. 2d 319 (1980)]. `The First Amendment's hostility to content based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.' Id. at 537, 100 S.Ct. at 2333... . [The] prohibition applies only to bar paid solicitations by charities, the statute cannot be considered a time, place or manner restriction."
In the three cases mentioned heretofore, Schaumburg involved an ordinance prohibiting door-to-door or on street solicitation of contributions by charitable organizations. Munson was a suit brought by a professional fund raiser for declaratory and injunctive relief challenging a twenty-five percent (25%) limit on charitable fund raising expenses imposed by a Maryland statute. Riley was initiated by a coalition of professional fund raisers, charitable organizations and potential charitable donors seeking injunctive and declaratory relief from a provision of the North Carolina Charitable Solicitations Act prohibiting professional fund raisers from retaining an unreasonable or excessive fee. In each *217 case the restrictive legislation was struck down by the courts. As we have noted none of the three dealt directly with telephone solicitation. However, in a discussion of compelled disclosure by professional fund raisers, the Riley court implicitly included solicitation by telephone within First Amendment proscription against legislative limitation on charitable contribution solicitation. The court said, "..., in the context of a verbal solicitation, if the potential donor is unhappy with the disclosed percentage, the fund raiser will not likely be given a chance to explain the figure; the disclosure will be the last words spoken as the donor closes the door or hangs up the phone." 108 S.Ct. at 2679. (Emphasis supplied).
The State recognizes that both Schaumburg and Munson, supra, stand for the proposition that some charitable solicitations are so intertwined with speech that they are entitled to the strictest protections of the First Amendment. Fundamentally they rely on the dissenting opinion in Munson and the opinion of the chancellor in the court below to defend the code sections questioned here. They argue that although the chancery court agreed that the Telephone Solicitation Statute restricted protected speech, it upheld the statute as a valid time, place or manner regulation serving a significant governmental interest, leaving open ample opportunities for alternative channels of communications. The chancery decree stated in pertinent part:
"The statutory provision serves two significant governmental interests. First, it protects the State's citizens from telephone solicitations providing the opportunity for misrepresentations or deceptions by paid professional solicitors who are motivated by profit. Second, the government has a substantial interest in protecting the residential privacy of its citizens and to protect them from undue annoyance and unwelcome telephone solicitations. The provision is narrowly drawn to serve the State's interest and leaves open other avenues of communication by the professional solicitor and closes no avenues of communication for the charity itself. Therefore, T.C.A. § 48-3-513(i) is a valid manner restriction on First Amendment speech ..."
In regard to the chancellor's finding that the statutory prohibition on telephone solicitation by professional solicitors is a valid time, place or manner regulation serving significant governmental interests, we are persuaded by the reasoning of the Massachusetts court in Planned Parenthood, supra. Furthermore, there has been no showing that this appellant has engaged in fraudulent practices in this or any other State. Nor has there been any showing that the statute as written provides any direct deterrence to fraud in any respect. "Mere speculation does not constitute a compelling state interest." Consolidated Edison Company v. Public Service Commission of New York, supra. Prohibition of telephone solicitations is not the least restrictive means available to the State in seeking to protect its citizens from fraud. "Where, as here, a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack." Munson, supra, 104 S.Ct. p. 2852. Commission of a fraudulent act is punishable as a felony and as a misdemeanor under T.C.A. § 48-3-515. The Charitable Solicitations Act requires that all charitable organizations provide information relative to their fund raising activities directly to the Secretary of State. T.C.A. § 48-3-504. It is clear that insofar as it prohibits telephone solicitations by professional solicitors T.C.A. § 48-3-513(i) is unconstitutional and in violation of the First and Fourteenth Amendments to the United States Constitution and Article I, §§ 8 and 19 of the Tennessee Constitution.
In regard to the constitutional validity of T.C.A. § 48-3-513(k), this section provides:
"A professional solicitor's total fee shall not be in excess of fifteen percent (15%) of the gross contributions which he solicits; *218 all fund raising costs shall be included in such gross contributions."
It is appellant's position that the solicitation of funds is a form of free speech subject to overbreadth analysis. It is argued that this particular code section is overbroad and violates constitutional provisions securing that right. The State on the other hand says that appellant's view that the statutory limitation on the fee of a professional solicitor impinges upon the free speech rights of charitable organizations is a fundamental misconception. They take the position that the percentage limitation operates only as a limitation upon the compensation of a professional solicitor in business for profit which satisfies a rational basis analysis. The State calls to our attention a number of cases which pre-date Schaumburg, Munson and Riley. We conclude that their earnest protestation in support of the statute is to no avail. In Munson, the court established the right of the professional fund raiser to bring the action although there was no claim that its own First Amendment right had been infringed by the challenged statute. It held that the Maryland act which prohibited a charitable organization from paying expenses of more than twenty-five percent (25%) of the amount raised in connection with any fund-raising activity was substantially overbroad and subject to facial attack.
In this case the State also relies on the findings of the chancellor to sustain their position in reference to this challenge. The chancellor endeavored to distinguish the statutes at issue in Schaumburg and Munson from the Tennessee statute in these words:
"In the present case, T.C.A. § 48-3-513(k) only limits the amount that the professional solicitor can receive as a fee, while the statute at issue in Schaumburg and Munson unconstitutionally limited the amount of money that a charity could pay for fund-raising activities. Thus, the Tennessee statute does not impair the charities First Amendment rights; it merely regulates the amount of profit that the professional solicitor can collect. Therefore, the court concludes that T.C.A. § 48-3-513(k) is simply a valid economic regulation by the State that supports a significant State interest in protecting its citizens from the opportunity of fraud and misrepresentation by profit motivated solicitors."
We do not interpret the decisions of the United States Supreme Court in that light. In response to similar assertions the Riley court had this to say:
"... The State offers two distinctions. First, it asserts a motivating interest not expressed in Schaumburg or Munson: ensuring that the maximum amount of funds reach the charity or, somewhat relatedly, to guarantee that the fee charged charities is not `unreasonable.' Second, the State contends that the act's flexibility more narrowly tailors it to the State's asserted interest than the laws considered in our prior cases. We find both arguments unavailing.
The State's additional interest in regulating the fairness of the fee may rest on either of two premises (or both): (1) That charitable organizations are economically unable to negotiate fair or reasonable contracts without governmental assistance; or (2) that charities are incapable of deciding for themselves the most effective way to exercise their First Amendment rights. Accordingly, the State claims the power to establish a single transcendent criterion by which it can bind the charities' speaking decisions. We reject both premises.
The first premise, notwithstanding the State's almost talismanic reliance on the mere assertion of it, amounts to little more than a variation of the argument rejected in Schaumburg and Munson that this provision is simply an economic regulation with no First Amendment implication, and therefore must be tested only for rationality. We again reject that argument; this regulation burdens speech, and must be considered accordingly. There is no reason to believe that charities have been thwarted in their attempt to speak or that they consider the contracts in which they enter to be anything *219 less than equitable. Even if such a showing could be made, the State's solution stands in sharp conflict with the First Amendment's command that government regulation of speech must be measured in minimums, not maximums. The State's remaining justification the paternalistic premise that charities' speech must be regulated for their own benefit is equally unsound. The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it... . `The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public minds through regulating the press, speech, and religion.' ... To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government. We perceive no reason to engraft an exception to this settled rule for charities." (Citations omitted).
The Riley case stands for the proposition that a percentage based regulation upon the fees to be collected by professional solicitors is an unconstitutional invasion upon the First Amendment rights of charities and fund raisers alike. The Tennessee statute falls within the ambit of that proscription. T.C.A. § 48-3-513(k) violates the First and Fourteenth Amendments to the United States Constitution and sections 8 and 19 of Article I of the Constitution of Tennessee.
The judgment of the chancery court is reversed. The case is remanded for any further proceedings necessary consistent with this opinion and for the collection of costs which are assessed equally between the parties.
HARBISON, C.J., and FONES, COOPER and DROWOTA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563165/ | 16 So. 3d 447 (2009)
STATE of Louisiana
v.
Eddie HARRISON III.
No. 2008-KA-1110.
Court of Appeal of Louisiana, Fourth Circuit.
June 25, 2009.
*450 Robert L. Freeman, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Appellee.
John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge EDWIN A. LOMBARD).
JOAN BERNARD ARMSTRONG, Chief Judge.
STATEMENT OF CASE
On June 20, 2006, the State charged the defendant, Eddie Harrison III, with attempted first degree murder of NOPD Officer Andres Gonzales, a violation of La. R.S. 14:(27)30.[1] The defendant pled not guilty at his arraignment on September 5, 2006. On March 8, 2007, the trial court denied the defendant's Motion to Suppress the Identification. Following a hearing on March 3, 2006, the trial court also denied the defendant's Motion to Quash the Bill of Information. After a four day jury trial, the defendant was found guilty as charged on March 13, 2008. On March 19, 2008, the defendant filed a Motion for a New Trial, which the trial court denied, and the State filed a multiple bill of information. That same day, the trial court found the defendant to be a second felony offender and sentenced him to one hundred years at hard labor. This appeal follows.
STATEMENT OF FACT
At trial, former NOPD officer Rebecca Gubert testified that on May 22, 2006, she and her partner/victim, NOPD Officer Andres Gonzales, were on patrol in a marked police unit when they stopped a car for suspicion of violation of the window tint law. After determining that the vehicle was in fact in violation of the law, Officer Gonzales asked the driver for proof of insurance, registration and driver's license, none of which the driver could produce. At the same time, Officer Gubert approached the passenger side of the stopped vehicle and encountered the defendant in the front passenger seat. Officer Gonzales ordered the driver to exit the vehicle. As the driver got out of the car, the defendant opened his door and ran. Officer Gubert alerted Officer Gonzales, who pursued the defendant on foot. Officer Gubert secured the driver in the back of the patrol unit, called in a report of the incident and a description of the defendant and followed the chase in the patrol unit. Officer Gubert witnessed Officer Gonzales turn on Verrett Street toward Opelousas Street as he chased the defendant. The next time she saw Officer Gonzales, he was lying on the sidewalk with a neck wound, unable to move. Officer Gubert rendered aid to Officer Gonzales and alerted police dispatch that the victim was wounded. She described the defendant as a muscularly built black male wearing twists in his hair, dark pants and a black t-shirt. Officer Gubert identified the defendant as the fleeing subject in a show up less than two hours after the shooting, and she also made an in-court identification of the defendant. She testified that by the time the defendant had been apprehended he was wearing a white t-shirt.
NOPD Sgt. Arthur Kaufman testified that on May 22, 2006 at approximately 3:15 p.m., he received a report of a shooting in the 500 block of Opelousas Street. Dispatch described the defendant as a black *451 male, approximately 5'11", six feet tall, twists in his hair, wearing a black shirt and dark jeans. Sgt. Kaufman stated that he was in charge of the investigation of the shooting and was assisted by several NOPD personnel collecting evidence. When Sgt. Kaufman arrived on the scene, Officer Gonzales was already en route to the hospital; however Sgt. Kaufman observed a large pool of blood, Officer Gonzales' gun belt and equipment and several.40 caliber shell casings[2] on the ground as well as bullet fragments inside an adjoining Laundromat. At approximately 5:00 p.m., support units brought the defendant back to the scene which is where Officer Gubert and two other witnesses, Ruth Farmer and Erin Farmer, identified the defendant. Additionally, Eddie Guillory also identified the defendant as the man who struggled with Officer Gonzales prior to the shooting. Although the NOPD mounted a massive search for the weapon, it was never recovered. Because of Officer Gonzales' critical injuries, Sgt. Kaufman was not able to interview him until June 2006, at which time Sgt. Kaufman presented Officer Gonzales with a photographic lineup from which he identified the defendant as the person who shot him. As the investigation progressed, Sgt. Kaufman learned of the existence of a surveillance video taken by the Westside Cleaners; however, Sgt. Kaufman did not view the video and later learned that it had been misplaced.
Madelyn Collins, former NOPD officer and criminalist, testified that she photographed the crime scene and collected four spent .40 caliber bullet casings, a cell phone, one white and one black t-shirt, money, a police radio, a Glock .40 caliber semi-automatic handgun (Sgt. Gonzales' gun) and a police baton.
ATF Agent Michael H. Hutton assisted the NOPD in its investigation of this case. Agent Hutton supplied one of the agency's explosives K-9s to search for the gun used to shoot the victim. However, the weapon was never found. Agent Hutton also shipped the gunshot residue kit assembled in this case to the Bexar County Texas crime lab for analysis. The test results indicated the presence of gun powder on the defendant's hands.
Michael Martinez, a forensic scientist supervisor in the trace evidence and firearms section of the Bexar County crime lab, testified that he received and tested the gunshot residue kit sent to him by ATF Agent Hutton. Mr. Martinez's analysis of the kit revealed the presence of gunshot residue on the defendant's right and left hand palms.
Mr. Edward Delery, a crime scene technician and former member of the NOPD crime lab, testified that he sketched the crime scene including the 600 blocks of Opelousas and Slidell streets all the way to the levee. The sketches identify the locations of bullet casings, pellet fragments, money and Sgt. Gonzales' police equipment found on the scene.
Sgt. George Waguespack testified that he assisted in the investigation of the shooting by collecting Officer Gonzales' clothing and his police equipment from the hospital. Upon examining Officer Gonzales' bullet proof vest, Sgt. Waguespack discovered a loose spent bullet located in the front panel of the vest. He was present when Officer Gonzales viewed the photo lineup and identified the picture of the defendant as the man who shot him.
*452 Former NOPD Detective Gus Bethea testified he assisted in the investigation of the crime by contacting the owners of Westside Cleaners, a dry cleaning business located at Opelousas Street adjacent to the crime scene, on the day of the shooting. Bethea learned that the owners had a video surveillance camera pointed in the direction of the scene of the shooting. Bethea and Officer Ronald Ruiz along with the owners of Westside Cleaners viewed the black and white videotape which caught the image of two people running past the front window of the business. Because of the poor quality of the tape and because the images on the tape were so fleeting, no identification of the subjects could be made. Bethea had the tape duplicated and placed the original and the copy into the inter-departmental mailbox for delivery to Sgt Kaufman. However, Sgt. Kaufman never received the tape.[3] Along with the video tape, Bethea logged into evidence one Louisiana State Driver's license in the name of Eddie Harrison, one green cigarette lighter, one stocking cap and a black leather wallet retrieved from the scene of the shooting.
Remy Dixon, one of the owners of Westside Cleaners, testified that about 3:00 p.m. on May 22, 2006, he was working at his business and heard gunshots, but did not witness the shooting. Mr. Dixon explained that his business had an inside surveillance camera which is pointed at the front door of the building on Opelousas Street. He viewed the surveillance film which showed two people running past the front of his building just before the gunshots were heard. No identification was possible because the view was so fleeting the figures were blurred. Mr. Dixon said that Officer Gonzales was lying on the ground about fifteen feet from the front door of his business.
Stacey Farmer testified that she lived in the 200 block of Slidell Avenue on May 22, 2006 and heard gunshots in the area. At the same time she heard police sirens in the neighborhood, she looked out her window and saw a man wearing a black shirt with a white t-shirt on his shoulder searching the high grass on Brooklyn Street near her house. She watched the subject until he walked over the river levee and out of sight. Ms. Farmer described the subject as a black male with dreadlocks (in his hair) wearing dark pants with orange writing and two t-shirts one black and one white. She identified the defendant in court as the person she saw looking in the high grass about five minutes after she heard gunshots.
Ruth Farmer and Erin Farmer, Stacey Farmer's mother and sister respectively, testified. They corroborated Stacey Farmer's testimony. In a show up shortly after the shooting both Mrs. Ruth Farmer and Erin Farmer identified the defendant as the man they saw looking in the grass near their home. They also made an in court identification of the defendant.
NOPD Sgt. Ronald Ruiz testified that the day after the shooting he helped search for the gun used in the shooting. He and other investigators searched the entire day but no weapon was ever located. Sgt. Ruiz viewed the surveillance tape from the dry cleaning business with Detective Gus Bethea, but was unable to discern any physical characteristics of the two fleeting subjects shown on the tape.
NOPD Officer Carl Thibodeaux testified that he was on the west bank of the river when he heard the report of a shooting in the Algiers area. Officer Thibodeaux proceeded to the intersection of Burmaster and Monroe Streets where he encountered *453 a man on a train pointing down toward the river. Officer Thibodeaux exited his car and walked to the top of the levee. He saw the defendant walking toward him. When the defendant saw Officer Thibodeaux, the defendant turned around and proceeded into a grassy area between the river embankment and some barges. At that point, other police units arrived at the scene and pursued the defendant. Officer Thibodeaux made an in court identification of the defendant as the man he saw on the levee.
Detective Eduardo Colmenero assisted in investigating the shooting. The detective collected the defendant's clothing after his arrest and presented the clothing to Central Evidence and Property. He described the clothing as a white tank top, jeans, black socks, multi colored underwear and Nike shoes. Upon examining the clothing, Detective Colmenero observed grass on the pants and possible blood stains on the shoes.
Detective Harold Wischan participated in the investigation by being dispatched to the 700 block of Brooklyn Street in Algiers to recover a white and a black t-shirt.
Sgt. Tyrone Robinson retrieved Officer Gonzales' duty rig and weapon from the scene in the 600 block of Opelousas Street. Sgt. Robinson gave the evidence to one of the homicide detectives on the scene.
Sgt. Luther Randall assisted in apprehending the defendant. Sgt. Randall heard the report of the shooting from dispatch indicating that the perpetrator was headed toward the levee. When Sgt. Randall arrived at Brooklyn Street, he saw a suspect fitting the description of the shooter walking behind some trains headed to Gretna. When the defendant saw Sgt. Randall and other police units approaching, he surrendered to the officers.
Meredith Acosta, a NOPD firearms expert, examined the .40 caliber handgun, bullets and bullet casings gathered at the crime scene. Ms. Acosta's testing of the evidence indicated that four of the .40 caliber cartridge cases were fired by the same weapon but not the .40 caliber handgun found at the scene. Comparing one bullet found at the scene with a bullet retrieved from the Elmwood Medical Center proved both bullets were fired by the same weapon, but again, not from the weapon found at the scene.
Jennifer Marie Schroeder worked in the NOPD's DNA laboratory. After explaining the science and importance of DNA testing for identification purposes, Ms. Schroeder testified that she ran testing on a cheek swab taken from the defendant as well as suspected blood spots found on the shoes worn by the defendant at the time of the shooting. The test results came back inconclusive meaning that the samples either were not blood or that the samples had been degraded by the elements and/or fungus or bacteria, rendering the samples useless for forensic purposes.
NOPD Officer Andres Gonzales, the victim, testified that on May 22, 2006, he and his partner, Officer Rebecca Gubert, were on patrol in the Algiers Point area. They affected a vehicular stop of a vehicle suspected of being in violation of the window tint law. Officer Gonzales exited his patrol unit and engaged the driver of the other car. Officer Gonzales explained to the driver the reason for the stop. Officer Gonzales used a meter to test the window tint and found that the tint was in violation of the law. Officer Gonzales asked the driver for identification, registration and proof of insurance, none of which the driver could produce. Officer Gonzales instructed the driver to get out of the vehicle. As the driver complied, the defendant exited the car and fled. Officer Gonzales *454 chased the defendant down Verrett Street toward Opelousas Street and then toward the river. Officer Gonzales caught up with the defendant on Opelousas Street. The pair began to struggle. The defendant pulled a gun from his clothing and shot Officer Gonzales in the neck, which paralyzed him immediately, and then shot the victim one more time as he lay on the ground. Following several weeks of medical procedures and rehabilitation, Officer Gonzales identified the defendant from a six picture lineup presented to him by Sgt. Kaufman and Det. Waguespack. Officer Gonzales also made an in court identification of the defendant as the man who shot him.
Dr. Alan Marr, an expert in critical care and trauma surgery, testified that he attended to Officer Gonzales at Elmwood Trauma Center on the day of the shooting. The doctor noted Officer Gonzales suffered gunshot wounds to the face, neck and arm and was in shock suffering dangerous loss of blood on arrival at the hospital. The gunshot to Officer Gonzales' neck fractured the hyaloid bone, which helps support the swallowing tube and trachea, tore the top of the trachea and pharynx, proceeded through the fourth and fifth cervical vertebrae and then severed his spinal cord which resulted in instant, non-reversible paralysis. Dr. Marr explained that Officer Gonzales may have very limited use of his hands with rehabilitation, but he will never walk again. The wound to the face caused massive facial fractures. Officer Gonzales underwent eight hours of surgery to repair and stabilize his condition. Neurosurgeons, oral maxillofacial, and ear, nose and throat surgeons assisted in the surgery. During the weeks following the incident, Officer Gonzales underwent two follow up surgical procedures, was placed on a ventilator for two weeks and required antibiotics, pain medication and heavy sedation. Dr. Marr opined that Officer Gonzales will in all likelihood suffer psychological injuries such as post traumatic stress disorder (PTSD). The symptoms of PTSD can include difficulty concentrating and holding a job, exaggerated fear responses, memory loss and probable likelihood of alcohol abuse. At the time Officer Gonzales victim was discharged from Dr. Marr's care, he was prescribed twelve different medications for treatment of his injuries.
At the victim impact hearing, Officer Gonzales and his parents made statements concerning the life altering impact of his injury. Officer Gonzales stated that his life's ambition was to be a policeman, an ambition the defendant has taken away from him. He stated that he is unable to perform the everyday tasks people take for granted. He requires care twenty-four hours a day, seven days a week. His injuries have stripped him of his dignity, livelihood, dreams, ambitions and hopes for a normal life. The defendant's action has condemned Officer Gonzales to life in a wheelchair.
ERRORS PATENT
A review of the record for errors patent reveals one. The trial in this matter concluded on March 12, 2008. The trial judge sentenced the defendant on March 19, 2008, following the multiple bill hearing.
La.C.Cr.P. art. 873 provides as follows:
If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.
*455 In this case, the trial judge imposed sentence immediately after denying the defendant's Motion for New Trial and Motion for Post Verdict Judgment of Acquittal in violation of the twenty-four hour period mandated in La.C.Cr.P. art. 873. However, after denying the motions, but prior to issuing the sentence, the trial judge asked defense counsel if the defendant had anything to say prior to sentencing. Defense counsel responded negatively indicating that his client was ready for imposition of sentence. Thus, defense counsel waived the delay. Accordingly, this error is harmless.
ASSIGNMENT OF ERROR NUMBER 1[4]
In his first assignment of error, the defendant complains that the trial judge erred in denying his Motion to Quash the Indictment after the State lost potential exculpatory evidence.
The potentially exculpatory evidence to which the defendant refers is the video surveillance tape from Westside Cleaners which was lost prior to trial of this matter. Although the defendant couches this assignment of error in terms of a Motion to Quash for the State's failure to produce the tape for trial, the issue is more appropriately considered as a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] violation because the grounds for a Motion to Quash do not include lost evidence. See La.C.Cr.P. arts. 532[5] and 534[6].
In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963), the United States Supreme Court held that suppression by the prosecution of evidence favorable to the accused after receiving a request for the evidence violates a defendant's due process rights where the evidence is material either to guilt or punishment, without regard *456 to the good or bad faith of the prosecution. For purposes of the State's due process duty to disclose, no difference exists between exculpatory evidence and impeachment evidence. State v. Kemp, 2000-2228, p. 7 (La.10/15/02), 828 So. 2d 540, 545. The Brady rule encompasses evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985); State v. Knapper, 579 So. 2d 956, 959 (La.1991).
Nevertheless, it is important to note that Brady and its progeny do not establish a general rule of discoverability, and not every case in which it is discovered post-trial that favorable evidence was withheld by the State will result in a reversal of the conviction. A prosecutor does not breach any constitutional duty to disclose favorable evidence unless the "omission is of sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342 (1976). For purposes of Brady's due process rule, a reviewing court determining materiality must ascertain:
not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.
Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995). See also, State v. Strickland, 94-0025, p. 38 (La.11/1/96), 683 So. 2d 218, 234. Thus, the reviewing court does not put the withheld evidence to an outcome-determinative test in which it weighs the probabilities that the petitioner would have obtained an acquittal at trial or might do so at a second trial. Instead, a Brady violation occurs when the "evidentiary suppression `undermines confidence in the outcome of the trial.'" Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381).
In this case, Sgt. Arthur Kaufman and Detective Gus Bethea each testified at trial that there was no intent to destroy or lose the Westside Cleaners' videotape. Detective Bethea explained that after duplicating the tape, he placed the tape in Sgt. Kaufman's mailbox, who stated that he never received the videotape. Both of the officers testified that this activity in the case occurred in the aftermath and confusion of Hurricane Katrina at a time when the NOPD's resources were destroyed or scattered with several divisions of the police force operating out a small trailer in City Park. The testimony shows that police were operating under trying conditions and limited space. That the videotape was misplaced or lost is not unbelievable and no "bad faith" can be inferred from the situation. Moreover, Detective Bethea, and Sgt. Ronald Ruiz and Remy Dixon, the owner of Westside Cleaners, all testified at trial that the videotape was of no evidentiary value. The camera at Westside Cleaners focused on the inside of the business, and only happened to include the door to the business in the background. The figures on the videotape were blurred because the camera was not focused on the area and only one frame of the tape captured the fleeting figures. Hence, the testimony shows that the tape was not favorable to the defendant nor was it material under Brady.
Finally, evaluating the videotape in the context of the entire case shows that the jury's verdict was reliable. The facts establish that Officer Gonzales was on duty on May 22, 2006 and that the defendant was a passenger in the car that Officer Gonzales pulled over for a traffic violation. *457 Officer Gonzales' partner and other witnesses identified the defendant as the person seen fleeing the police and lurking around the crime scene after the shooting. Residue testing done on the defendant's hand confirmed that the defendant had fired a gun prior to his arrest, and perhaps most important, Officer Gonzales positively identified the defendant as person who shot him. The evidence of the defendant's guilt is overwhelming. The defendant has failed to show that the videotape in question, had it been available for trial, would have undermined confidence in the outcome of the trial. This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 2
In his second assignment of error, the defendant alleges that the evidence is insufficient to prove he had the specific intent to kill the victim.
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, in viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). A reviewing court must consider the record as a whole, as would any rational trier of fact. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. State v. Mussall, 523 So. 2d 1305 (La.1988). The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra. A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So. 2d 1319 (La.1992).
The defendant in this case was charged with the attempted first degree murder of Officer Andres Gonzales.
First degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm upon a fireman or peace officer (including a police officer) engaged in the performance of his lawful duties. La. R.S. 14:30(A)(2, 6). The crime of attempted murder, whether first or second degree, requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Huizar, 414 So. 2d 741, 746 (La. 1982). The specific criminal intent required does not have to be proved as fact, but may be inferred from the circumstances and actions of the defendant. State v. Boyer, 406 So. 2d 143 (La.1981). The discharge of a firearm at close range and aimed at a person is indicative of specific intent to kill or inflict great bodily harm upon that person, as required for a first-degree murder conviction. State v. Gay, 29,434 (La.App. 2 Cir. 6/18/97), 697 So. 2d 642.
The evidence in this case shows that as Officer Gonzales pursued the defendant on foot, the defendant turned on Officer Gonzales and aimed his gun at him. Following a brief struggle over the gun, the defendant shot Officer Gonzales three times, paralyzing him instantly. While Officer Gonzales lay on the ground helpless and unable to move, the defendant shot him one more time. The facts prove that the defendant shot Officer Gonzales while he was performing his duty as a police officer. Further, the evidence is clear that the defendant shot Officer Gonzales with the specific intent to kill the victim. The defendant's assignment of error as to the sufficiency of the evidence is without merit.
*458 ASSIGNMENT OF ERROR NUMBER 3
In his third assignment of error, the defendant argues that his sentence of one hundred years without the benefit of probation, parole, or suspension of sentence, after having been convicted of attempted first degree murder and after having been adjudged a second felony offender, is excessive.
Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. La. Const. Art. I, 20; State v. Landry, XXXX-XXXX (La.App. 4 Cir. 3/31/04), 871 So. 2d 1235, 1239-1240. A sentence may violate a defendant's constitutional right against excessive punishment even if it is within the statutory limit. Id.; State v. Dorthey, 623 So. 2d 1276, 1280 (La.1993). A sentence within the statutory limit is constitutionally excessive if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless imposition of pain and suffering. State v. Landry, 871 So.2d at 1239-1240, citing State v. Johnson, 97-1906 (La.3/4/98), 709 So. 2d 672, 676
Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Black, 98-0457, p. 8 (La. App. 4 Cir. 3/22/00), 757 So. 2d 887, 892. If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case. State v. Caston, 477 So.2d at 871. The reviewing court must also keep in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Quebedeaux, 424 So. 2d 1009, 1014 (La.1982).
The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So. 2d 1222 (La. 1983). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).
La. R.S. 14:30(C)(2) provides that anyone convicted of first degree murder in Louisiana when a capital verdict is not sought, shall be punished by life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence.
La. R.S. 14:27(D)(1)(a) states that anyone convicted of the attempted commission of an offense that would otherwise be punishable by death or life imprisonment shall be imprisoned at hard labor for not less than ten nor more than fifty year without the benefit of parole, probation or suspension of sentence.
La. R.S. 15:529.1(A)(1)(a) mandates that if an individual is convicted of a felony and is adjudicated a second felony offender, the offender will be sentenced to imprisonment for not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.
In this case, the defendant was convicted of attempted first degree murder. A conviction of first degree murder mandates a minimum sentence of life, but for an attempt to commit first degree murder, the defendant faced a sentencing range of ten to fifty years. However, because the defendant was adjudicated a second felony offender,[7] his sentencing range was twenty-five to one hundred years, or one-half to twice the maximum for attempted first *459 degree murder. Consequently, the defendant's one hundred year sentence falls within Louisiana's sentencing guidelines.
In tailoring the defendant's sentence in this case, the trial court noted that the defendant has a prior conviction for a crime of violence (armed robbery), that the defendant failed to use his time in prison to better himself, that after being released from prison he committed this crime, another crime of violence, and also violated the law by possessing a firearm. In fact, the trial court noted that after he was released from prison, he was also arrested in 2003 for auto theft, felon in possession of a firearm and aggravated assault with a firearm upon a police officer, thus evidencing his propensity for violence and need of custodial environment.
The trial court also re-emphasized that because of the defendant's criminal behavior, Officer Gonzales will never walk again, never enjoy the quality of life he previously had, will be dependent on his family for remainder of his life, which in all likelihood, will be shortened because of his injury. Finally, the judge condemned the defendant's cruelty in shooting Officer Gonzales and leaving him completely helpless to bleed death on the sidewalk.
It is evident from the foregoing that the trial court followed the guidelines set forth in La.C.Cr.P. art. 894.1(C) by articulating for the record the basis for the defendant's sentence. The reasons set forth in support of the maximum sentence available in this case include at least seven of the sentencing considerations of La.C.Cr.P. art. 894.1(B).
This circuit and at least one other have upheld one hundred years sentences for lesser crimes. See State v. Hills, XXXX-XXXX (La.App. 4 Cir. 1/20/99), 727 So. 2d 1215 (one hundred years for second offender for attempted second degree murder); State v. Douglas, 39,036 (La.App. 2 Cir. 10/29/04), 888 So. 2d 982 (one hundred years for attempted second degree murder). This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.
NOTES
[1] The defendant was also charged with one court of being a felon in possession of a firearm. However, that count was severed and eventually dismissed.
[2] None of the casings matched the victim's service weapon. Testing showed that the victim had not fired his weapon.
[3] Testimony indicates that the tape was lost.
[4] This court issued an order on March 9, 2009 that granted the defendant's request to file a pro se supplemental brief and gave the defendant forty-five days from the issuance of the order to file the supplemental brief. Our review of the record shows that the defendant did not file the supplemental brief.
[5] C.Cr.P. art. 532 provides:
General grounds for motion to quash
A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.
[6] C.Cr.P. art. 534 provides:
Special grounds for motion to quash information
A motion to quash an information may also be based on one or more of the following grounds:
(1) The information was not signed by the district attorney; or was not properly filed.
(2) The offense is not one for which prosecution can be instituted by an information.
[7] The defendant pled guilty to armed robbery in Jefferson Parish in 1999. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563203/ | 16 So. 3d 832 (2009)
REEVES
v.
STATE.
No. 5D09-2164.
District Court of Appeal of Florida, Fifth District.
August 18, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563209/ | 16 So. 3d 220 (2009)
Amisaday ALVAREZ, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-4130.
District Court of Appeal of Florida, Fourth District.
August 12, 2009.
*221 Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
Amisaday Alvarez, the defendant below, appeals his conviction for grand theft and asserts that the trial court erred in admitting hearsay evidence of a baggage claim ticket introduced to lend proof that the victim's mother entered into the United States with currency that was stolen by Alvarez. We agree that the trial court erred in admitting the evidence but find that the error was harmless.
Alvarez and the victim, Luz Singh, became friends in April 2002 when she hired him to do construction work on her driveway. Later, in October of the same year, Singh's family decided to purchase a new home which required a $67,000 deposit. Singh testified that to finance the deposit, she sold her apartment in Colombia. By agreement of the parties, a document written in Spanish was admitted showing the sale of the Colombian property dated October 16, 2002. The funds were initially supposed to be wired to Singh, but when it became impossible to make the wire transfer, Singh's mother flew to the United States carrying $47,000 in cash in a paper bag. Singh and Alvarez picked up Singh's mother at the airport. Over a hearsay objection by the defense, the state was allowed to admit into evidence a baggage claim ticket to corroborate Singh's testimony that her mother had entered into the United States on October 31, 2002, the day before the theft.
Although Singh received the $47,000 in cash, she was still short $20,000 for the deposit. She raised $8000 in cash from her relatives and Alvarez agreed to loan her the remaining $12,000. Because Singh was concerned that her mother had not declared the cash she brought in from Colombia, Alvarez offered to drive Singh to a bank to get a certified check for the full deposit amount. On the morning after Singh's mother entered the country, Alvarez and another man he knew, Elio Lopez, picked up Singh at her home. Singh was carrying the $55,000 in cash in a bag. On the way to the bank to get the certified check, Alvarez stopped at a gas station. Singh got out of the car to use the bathroom and when she returned, Alvarez and Lopez had absconded with the money.
A gas station attendant called police and when Officer Steven Randazzo arrived, he encountered Singh whom he described as being very excited. Singh reported that she had just been the victim of a theft and asked Officer Randazzo to pursue the car in which Alvarez and Lopez were riding. Officer Randazzo indicated that he could not do so because the two men had driven outside of Randazzo's jurisdiction but he contacted the detective's bureau which began an investigation.
Detective Robert Bart interviewed the gas station attendant who made the telephone call for Singh. The detective compiled a photo lineup, including a photo of Singh. The attendant identified Singh as the person who came into the station on October 31, 2002, for whom he had called police.
Detective Bart located Alvarez and took a statement from him. Initially Alvarez denied knowing Singh or anything about *222 the money but subsequently admitted that he knew her and was aware of the planned bank transaction. He admitted he was with Singh on October 31st, along with another man he knew. Alvarez said that Singh had owed him $4000 for work he had performed on her driveway.
Alvarez was ultimately convicted of grand theft and now on appeal argues, among other things, that the trial court erred in admitting the baggage claim ticket. He argues that the ticket was inadmissible hearsay because it was offered to prove the truth of the matter asserted, that is, that Singh's mother traveled to the United States on October 30, 2002.
We find that the lower court erred by admitting the baggage claim ticket but we also determine that the error was harmless under State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). DiGuilio explains that the harmless error test places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. It requires a close examination of the permissible evidence on which the jury could have legitimately relied, and an even closer examination of the impermissible evidence which might have influenced the jury. Numerous cases have discussed the meaning of "harmless."
An error is harmless if the reviewing court can say beyond a reasonable doubt that the error did not affect the verdict. Mansfield v. State, 758 So. 2d 636 (Fla.2000). The harmless error test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. The question is whether there is a reasonable possibility that the error affected the verdict. Cuervo v. State, 967 So. 2d 155 (Fla.2007).
The evidence of the baggage claim ticket was cumulative to Singh's own testimony and when combined with other competent, substantial evidence to support the conviction, its erroneous admission was harmless. See DiGuilio; Monlyn v. State, 705 So. 2d 1 (Fla.1997); Miles v. State, 839 So. 2d 814 (Fla. 4th DCA 2003).
Alvarez raises two other arguments which we have determined are without merit.
Affirmed.
GROSS, C.J., and WARNER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459697/ | 392 S.W.2d 127 (1965)
James Winston SHARP, Appellant,
v.
The STATE of Texas, Appellee.
No. 38263.
Court of Criminal Appeals of Texas.
June 26, 1965.
*128 No attorney of record on appeal.
Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Judge.
The offense is the unlawful offer to sell securities which had not been registered with the Securities Commission as denounced by Article 581-1 et seq. Vernon's Ann.Civ.St.; the punishment, five years and a fine of $3,000.
The first 340 pages of this record reveal how appellant aroused the interest and cupidity of a West Texas farmer and through him, the farmer's doctor and thence to the pharmacist to whom appellant offered to sell 5,000 shares of preferred and 100 shares of common stock in Central Equity Corporation of Wichita Falls, Texas, for the sum of $5,100. No stock was exhibited, and no sale was made.
It was established through the testimony of an investigator for the Securities Board of Texas that Central Equity Corporation of Wichita Falls, Texas, had not been registered with the Securities Commission, nor had appellant ever been licensed to sell securities in the State.
Appellant did not testify or offer any evidence in his own behalf.
Bill of exception #1 complains of the court's failure to sustain his motion to quash the indictment because the stock certificate was not set forth in haec verba therein. It is conceded that where a sale is actually consummated it is better pleading to incorporate in the indictment the stock certificate itself. See Sec. 1401, Willson's Criminal Forms, 6th Edition and Leinart v. State, 159 Tex. Crim. 220, 262 S.W.2d 504. However, since no stock certificates had ever been printed, as far as this record reveals, this would be an impossibility, and under the reasoning of Judge Christian in Aiken v. State, 137 Tex. Crim. 211, 128 S.W.2d 1190, such should not be required.
Bill of exception #2 complains of a variance between the date alleged and the proof as to the date that the offer to sell was made. The bill recites that the indictment alleged the 16th of September. The indictment itself alleges that the offer was made on September 6, and it is supported by the proof. 1 Branch's Ann.P.C. 2d, Sec. 459, p. 457.
Appellant's complaints as to the charge are without merit in the light of the rule expressed by Judge Hawkins in Shannon v. State, 115 Tex. Crim. 249, 30 S.W.2d 331, when he said that a charge should be considered in its entirety. See also Roper v. State, 155 Tex. Crim. 59, 230 S.W.2d 528.
Bill of exception #4 complains of the action of the trial court in failing to grant his motion for new trial based upon alleged newly discovered evidence. From the hearing on the motion, it appears that appellant's attorney, Minor Pounds, was informed prior to the trial by the District Attorney that appellant claimed to have a history of mental illness. It was not until after trial that Attorney Pounds made any inquiry about the matter, and no issue as to appellant's sanity was raised during the trial. Gephart v. State, 157 Tex. Cr.R. 414, 249 S.W.2d 612, is authority for the rule that an attorney for an accused must use all diligence in securing evidence on the issue of insanity and that when, prior to trial, an attorney learns that his client has a record of a commitment for insanity, the attorney may not raise the issue for the first time in motion for new trial, as newly discovered evidence.
Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/731841/ | 103 F.3d 130
NOTICE: Sixth Circuit Rule 24(c) 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 Sixth Circuit.Terry Lee MATHIS, Plaintiff-Appellant,v.Kevin ZIEGLER, Stenographer at Recorder's Court for the Cityof Detroit in official and personal capacity,Defendant-Appellee.
No. 95-2340.
United States Court of Appeals, Sixth Circuit.
Dec. 2, 1996.
Before: KENNEDY, BOGGS, and WOOD*, Circuit Judges.
ORDER
1
Terry Lee Mathis appeals a district court order dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Seeking monetary and injunctive relief, Mathis sued Kevin Ziegler, a court reporter, in his official and individual capacity. Mathis alleged that Ziegler failed to prepare a transcript for a portion of his criminal trial and, consequently, Mathis was unable to properly pursue the appeal of his conviction. Over Mathis's objections, the district court adopted the magistrate judge's report and recommendation, concluded that Mathis's claims were frivolous, and dismissed the case. Mathis has filed a timely appeal.
3
Upon review, we conclude that the district court properly dismissed Mathis's claims as frivolous pursuant to 28 U.S.C. § 1915(d). This court reviews a district court's frivolity dismissal under § 1915(d) for an abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33-34 (1992). A complaint may be dismissed as frivolous when the plaintiff does not present any claim with an arguable or rational basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
4
Mathis's claim against the defendant is not cognizable under § 1983. Mathis alleges that the defendant's failure to produce the trial transcript adversely affected his ability to prosecute his direct criminal appeal. A state prisoner does not state a cognizable claim challenging his conviction if a ruling on his claim would necessarily render his conviction invalid, until and unless his conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has been called into question by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994). Consequently, regardless of the type of relief sought, the claim must be dismissed. Id. at 2373. As a ruling on Mathis's § 1983 claim would impact his criminal conviction and Mathis has not demonstrated that his conviction has been remedied by some other process, the district court did not abuse its discretion in dismissing his complaint as frivolous.
5
Accordingly, we affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable Harlington Wood, Jr., Circuit Judge, United States Court of Appeals for the Seventh Circuit, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/731848/ | 103 F.3d 131
NOTICE: Sixth Circuit Rule 24(c) 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 Sixth Circuit.UNITED STATES of America, Plaintiff-Appellant,v.Brody CARTER, Defendant-Appellee.
No. 95-6436.
United States Court of Appeals, Sixth Circuit.
Nov. 27, 1996.
Before: KEITH, BOGGS AND BATCHELDER, Circuit Judges.
PER CURIAM:
1
The Defendant-Appellant, Brody Carter ("Carter"), appeals the denial of his motion to suppress evidence obtained during the execution of a search warrant by the Shelby County, Tennessee, Sheriff's Department. For the reasons stated below, we AFFIRM the decision of the district court.
I. Statement of the Case
2
On January 24, 1995, officers of the Shelby County Sheriff's Department executed a search warrant at 45 East Utah in Memphis, Tennessee, Carter's residence. The search warrant was obtained based on information provided by a confidential informant that crack cocaine had been sold at 45 East Utah. Detective B.T. Roberts ("Detective Roberts"), of the Shelby County Sheriff's Department, was a member of the raid team that executed the warrant. When the officers arrived at the residence, all, except Detective Roberts, immediately got out of the raid van and proceeded to the front door of the house. Detective Roberts was delayed in exiting the vehicle because his gun holster became lodged between the front seat and the door frame. When Detective Roberts finally extricated himself from the van, he proceeded to the front door. At the door, he was told to break the door in with his battering ram because someone inside the house was running. Upon entering the house, Detective Roberts secured two females, Jauanita Williford ("Williford") and Fay Smith ("Smith"). Detective Beasly, another member of the raid team, chased after a third individual who was running down the hall. After securing Williford and Smith, Detective Roberts heard a scuffle and also proceeded down the hall. Upon arriving at the scene of the scuffle, Detective Roberts found Carter on the floor near the bathroom and in the custody of Detective Beasly. Another member of the raid team found a baggie of crack cocaine in the toilet of the bathroom.
3
On February 2, 1995, Carter was indicted by a federal grand jury for the United States District Court for the Western District of Tennessee. The one-count indictment charged him with possession with the intent to distribute approximately 28.7 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
4
On March 16, 1995, Carter pled not guilty to the indictment and filed a motion to suppress the drugs found during the execution of the warrant. On April 19, 1995, an evidentiary hearing on Carter's motion to suppress was held before a federal magistrate judge.
5
At the suppression hearing, the magistrate heard the testimony of Carter, Williford and Detective Roberts. Carter stated on direct examination that he was in the bathroom taking his medication and attempted to flush the crack down the toilet when he heard the police enter the house. On cross-examination, Carter claimed he was using the facilities when the officers broke the door down and at that point, while pulling up his pants, attempted to flush the drugs down the commode. He further asserted on cross-examination that the officers allowed him to fasten his pants after finding him in the bathroom. Carter claimed both on direct and cross-examination that he did not hear the officers knock before they entered his house.
6
Detective Roberts testified that he heard the other members of the raid team knock on the door and announce their presence as he was trying to free himself from the van. He stated that when he did arrive at the front door, approximately 10-15 seconds later, he was told that someone inside the house had been running and that he should knock the door down. Detective Roberts testified that when he arrived, at the scene of the scuffle, he found Carter on the floor with his nose bleeding and his pants pulled up and fastened. On cross-examination, Detective Roberts admitted that he personally did not see anyone running through the house.
7
Williford testified she lived at 45 East Utah with Carter and her five children. She told the court that she and Smith were in the living room when the police entered the house. She asserted that she did not hear the officers knock and announce their presence before entering the house. Williford also claimed she did not know about the crack and the drug paraphernalia found stuffed in the sofa of her living room couch.
8
On April 28, 1995, the magistrate judge issued a report and recommendation finding that, based on the testimony given in the suppression hearing, Carter's motion to suppress should be denied. The magistrate judge found "[t]he forced entry only occurred after one of the officers saw movement in the living room following their knocking which provided a reasonable officer suspicion that someone was attempting to evade being seen or caught by the police upon notification of their presence ... this court concludes that the officers believed that an emergency situation existed which might have resulted in destruction of evidence." The magistrate judge also concluded that "a reasonable amount of time was provided to the defendant to answer the door and even if less than a sufficient time was given, circumstances then existed which provided the basis for noncompliance with the knock-and-announce requirement." Carter filed timely objections to the magistrate's report and recommendation.
9
On June 7, 1996, the district court entered an order denying Carter's objections to the magistrate judge's report and recommendation and denying his motion to suppress. The district court determined that the testimony of Detective Roberts was more credible than that of Carter or Williford. The district court found that the officers did knock and announce their presence before entering the home. The district court concluded "it would be physically impossible for [Carter] to be pulling up his pants and trying to flush the drugs down the toilet at the same time." The district court also found it highly unlikely that the officers would have allowed Carter the freedom of movement to finish pulling up his pants after they encountered him. The district court concluded that the 10-15 second wait before the officers entered the house was "a reasonable amount of time in which to infer a refused admittance," and that circumstances existed from which the officers could have perceived that someone was attempting to destroy evidence. On June 26, 1995, the district court entered an order allowing Carter to plead guilty while preserving the right to appeal the denial of his motion to suppress. Carter was then sentenced to 36 months in prison. Carter filed a timely notice of appeal.
II. Discussion
10
On appeal, Carter argues the district court erred by denying his motion to suppress. He contends that Detective Roberts' testimony was not sufficient to establish that the police knocked and announced their presence. He also claims the district court erred in finding that the officers waited a reasonable time before entering the house. Finally, he argues that the evidence did not support the district court's finding that exigent circumstances existed which excused compliance with the knock and announce requirement.
11
Having carefully reviewed the record on appeal and the arguments set forth in the briefs of the parties, we find no reversible error in the district court's Order. See United States v. Gatewood, 60 F.3d 248, 250 (6th Cir.1993) (holding that a wait of ten seconds after knocking and announcing their presence was a reasonable amount of time for officers executing a search warrant to infer a denial of admittance and make a forced entry).
III. Conclusion
12
For the reasons stated above, we AFFIRM the denial of Carter's suppression motion by the Honorable Jerome Turner, United States District Judge for the Western District of Tennessee. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2459720/ | 164 F. Supp. 2d 172 (2001)
QESTEC, INC., William P. Moulin, and Joseph W. Lawrence, Plaintiffs,
v.
Michael KRUMMENACKER, Defendant.
No. Civ.A. 00-40107-NMG.
United States District Court, D. Massachusetts.
September 7, 2001.
*173 Kurt L. Binder, Seder & Chandler, Worcester, MA, for plaintiffs.
Matthew E. Mitchell, Keegan, Werlin & Pabian, LLP, Boston, MA, for defendant.
MEMORANDUM AND ORDER
GORTON, District Judge.
This case arises out of a dispute among shareholders in a close corporation. Now pending before this Court are plaintiffs' application to compel arbitration and to stay proceedings pending resolution of arbitration (Docket No. 8) and defendant's cross motion to stay arbitration (Docket No. 11).
I. Background
Plaintiff Qestec, Inc. ("Qestec") is a Massachusetts corporation with a principal place of business in Auburn, Massachusetts. Plaintiff William P. Moulin ("Moulin"), the President and a director of Qestec, is a Massachusetts resident. Plaintiff Joseph W. Lawrence ("Lawrence"), the Treasurer and a director of Qestec, is also a Massachusetts resident. Defendant, Michael Krummenacker ("Krummenacker"), is a New York resident.
On December 9, 1996, Krummenacker and Qestec executed a Sales Employment Agreement ("SEA") whereby Krummenacker was hired as a Sales Executive. Paragraph 16 of the SEA is an arbitration provision which provides:
The parties agree that they will use their best efforts to amicably resolve any dispute arising out of or relating to this Agreement. Any controversy, claim or dispute that cannot be so resolved shall be settled by final binding arbitration in accordance with the rules of the American Arbitration Association....
Paragraph 9 addresses renewal and termination of the SEA:
A. Sales Executive's employment with the Company and the performance of this Agreement shall start on December 9, 1996 and shall continue for an "Initial Term" of one (1) year. Thereafter, the Agreement shall be renewed upon the mutual agreement of Sales Executive and Company. Notwithstanding the foregoing, this Agreement may be terminated at the discretion of either party on not less than thirty (30) business days prior notice; provided that if Company elects to terminate the Agreement pursuant to this sentence, then Company shall pay Sales Executive a severance payment of two (2) weeks average, based on six (6) months, or length of employment, whichever is the shortest. This severance payment amount shall also be paid to the Sales Executive if Company fails or refuses to renew the Agreement at the end of the Initial Term or at the end of any renewal term.
B. Notwithstanding the foregoing, either party may terminate this Agreement without notice in the event that the other party fails to observe or perform any material obligation in this Agreement. *174 A material breach of this Agreement by Sales Executive shall include, but is not limited to failure to achieve forecasted sales; making false, fraudulent or inappropriate statements about the Company, its employees or products; engaging in any unethical, immoral or unprofessional conduct; or falsifying or misrepresenting any information to the Company. In the event that the Company terminates the employment of the Sales Executive for one of the reasons set forth in this Section 9.B, then the Company shall not be obligated to pay Sales Executive any severance pay.
When the parties entered into the SEA, Moulin and Lawrence owned all of Qestec's stock. On July 20, 1998, Krummenacker purchased 25% of Qestec's stock and was made an officer, Vice President and director of the company. At that time, Gregory Bitter ("Bitter") also purchased 25% of Qestec's stock and was made a director. As part of the transaction, Krummenacker and Bitter signed an amendment to a Cross Purchase Agreement ("the CPA") wherein they agreed to abide by the terms of the CPA. The CPA provides for the purchase of the shares of Moulin and Lawrence, as Qestec's original shareholders, upon their death, incapacity, retirement or termination of employment. Article V of the CPA, entitled "Termination of Employment", provides for the purchase of shares from a shareholder whose employment is terminated for "cause" as defined therein.
On January 26, 1999, Qestec's four shareholders/directors adopted new By-Laws pursuant to a directors action by consent. Several provisions of those By-Laws merit mention. First, Article II, Section 7 contains an arbitration provision applicable only in the event of a deadlock. Next, Article III, Section 14 lists several "core decisions" for which approval by a quorum of the Board of Directors is required. Included on the list is "any major personnel decisions including the hiring and firing of employees ... amendment or termination of any employment contract. ..." Finally, Article IV, Section 2 provides that officers may be removed at any time by a vote of a majority of the Board of Directors.
On May 23, 2000, Moulin and Lawrence sent Krummenacker a memorandum notifying him that his employment was suspended until further notice and a second memorandum outlining the conditions of that suspension (collectively "the Suspension Notice"). The Suspension Notice reduced Krummenacker's compensation to $500 per week, denied him bonuses and profit sharing, terminated rental payments for Krummenacker's office in Port Jefferson, New York and prohibited further participation in Qestec's operations. As grounds for suspension the Suspension Notice listed: 1) the bad debt/revenue ratio for Krummenacker's accounts, 2) failure to meet monthly performance goals, 3) poor management skills, 4) an allegedly unauthorized $60,000 loan from Qestec to Krummenacker, 5) alleged overpayment for computer networking for the New York office, and 6) alleged harassment of a Qestec employee, to whom Krummenacker had been engaged, and her boyfriend, another Qestec employee.
A few days later, Krummenacker's New York counsel notified Moulin and Lawrence that the Suspension Notice was void in absence of action by Qestec's Board of Directors.
In response, Moulin, Lawrence and Qestec filed the instant action in Massachusetts state court alleging that Krummenacker's conduct constituted a material breach of the SEA pursuant to paragraph 9(B). Specifically, the complaint seeks 1) a declaratory judgment pursuant to M.G.L. *175 c. 231A and M.R.C.P. 57 that any dispute concerning the disciplinary actions taken, or to be taken, by Qestec against Krummenacker for his alleged breach of the SEA, breach of Qestec's By-Laws, breach of fiduciary duties, and other violations against Qestec and its employees must be resolved by arbitration, 2) an order compelling arbitration pursuant to M.G.L. c. 251, § 2, 3) an injunction preventing Krummenacker from taking any actions contrary to the arbitration provisions contained in the SEA and the By-Laws, and 4) a stay of the instant action pending arbitration pursuant to M.G.L. c. 251, § 2(d).
On June 5, 2000, Moulin and Lawrence convened special stockholders and directors meetings, at 10:30 a.m. and 11:00 a.m. respectively, in the office of Kurt Binder ("Binder"), Qestec's corporate counsel. At the stockholders meeting, Moulin, Lawrence, Binder and Krummenacker were present but Bitter, the fourth stockholder, had not yet arrived. Nonetheless, Moulin and Lawrence allegedly insisted on proceeding and then voted to remove Krummenacker as a director. Bitter arrived at the beginning of the directors meeting but refused to join the meeting when Binder allegedly denied access to Bitter's counsel. Moulin and Lawrence then voted to remove Krummenacker as Vice President and to terminate his employment. That same day, Moulin sent Krummenacker a letter restating the actions taken at the special meetings of stockholders and directors and demanded the immediate return of all Qestec equipment, customer, vendor and suppliers information. A follow-up latter on June 15, 2000, demanded the return of Krummenacker's company car. On June 21, 2000, Moulin and/or Lawrence allegedly notified Krummenacker's clients that he had been terminated.
On June 26, 2000, Krummenacker removed the case to this Court on diversity grounds, claiming that the amount in controversy exceeds $75,000 because his suspension/termination has caused damages to him in excess of $100,000. Shortly thereafter, Krummenacker filed an answer and counterclaim. The amended version of that counterclaim contains five counts. Count I seeks a declaratory judgment that the SEA 1) was abandoned or/rescinded by mutual consent, 2) had expired and/or terminated pursuant to its own terms, and 3) should be revoked on legal/equitable grounds. Counts II and III allege that Moulin and Lawrence breached their respective duties of good faith and loyalty owed to Krummenacker as shareholders in a close corporation. Count IV alleges that Binder breached his fiduciary duty to Krummenacker as Qestec's counsel and Count V alleges that Binder aided and abetted the alleged breach of the duty of good faith and loyalty by Moulin and Lawrence. Krummenacker also seeks injunctive relief to, inter alia, restore him as a director, officer and employee of Qestec and to compensate him for lost revenue, benefits, etc.
On August 25, 2000, plaintiffs filed a demand for arbitration with the American Arbitration Association.
II. Analysis
Plaintiffs seek an order compelling arbitration pursuant to the arbitration clause in paragraph 16 of the SEA. Paragraph 12 of the SEA provides that it "shall be construed and enforced in accordance with the laws of the state of Massachusetts." Accordingly, this Court will apply Massachusetts law.
Arbitration clauses are "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract" under the Massachusetts *176 Uniform Arbitration Act ("UAA"), M.G.L. c. 251, § 1 et seq. Section 2 of the UAA provides that when a party refuses to arbitrate a dispute covered by a valid arbitration clause, the aggrieved party may apply to the Superior Court for an order directing arbitration. M.G.L. c. 251, § 2(a). The court will then order arbitration if it finds that a valid agreement to arbitrate exists. Town of Danvers v. Wexler Constr. Co., 12 Mass. App.Ct. 160, 162, 422 N.E.2d 782 (1981). Any action involving an issue subject to arbitration must be stayed if the court compels arbitration of that issue unless the arbitrable issue is completely severable from the rest of the proceeding. M.G.L. c. 251, § 2(d).
"Whether a particular agreement calls for arbitration is a question of law for the court to decide by applying general principles of contract law." Bank v. International Business Machines Corp., 915 F. Supp. 491, 495 (D.Mass.1996), rev'd on other grounds, 99 F.3d 46 (1996). The UAA "express[es] a strong public policy favoring arbitration...." Id. at 163, 422 N.E.2d 782. Indeed, the Massachusetts Supreme Judicial Court has held that:
[u]nless there is positive assurance that an arbitration clause is not susceptible to an interpretation that covers the asserted dispute, or unless no lawful relief can conceivably be awarded by the arbitrator, an order to arbitrate should not be denied.
Massachusetts Coalition of Police, Local 165 v. Town of Northborough, 416 Mass. 252, 256, 620 N.E.2d 765 (1993) (quoting School Comm. of Danvers v. Tyman, 372 Mass. 106, 113, 360 N.E.2d 877 (1977)). An arbitration clause which is "expressed in general terms should be construed as broadly as it was intended". Town of Danvers, 12 Mass.App.Ct. at 163, 422 N.E.2d 782. However, "it is fundamental that a party has no right or obligation to demand arbitration if there is no contract provision providing for it." Unisys Fin. Corp. v. Allan R. Hackel Org., Inc., 42 Mass.App.Ct. 275, 280, 676 N.E.2d 486 (1997). Accordingly, this Court will discuss whether an agreement to arbitrate exists, and, if so, the scope of that agreement.
A. Existence of an Arbitration Agreement
Paragraph 16 of the SEA is an express agreement to arbitrate. Krummenacker, however, argues that when he became an officer, director and shareholder of Qestec, his relationship with the company was drastically changed thereby abrogating the SEA including its arbitration clause. He therefore seeks a stay of arbitration pursuant to M.G.L. c. 251, § 2(b) on the ground that there is no agreement to arbitrate. This Court disagrees.
Prior to July 20, 1998 (the date Krummenacker became a 25% shareholder of Qestec), Krummenacker's responsibility as a sales executive was to, inter alia,
develop, implement and manage a sales plan for the Company's products.... [including] development of a target account list, sales and other forecasts, management of Company's distribution channels, and coordination with Company's production, accounting and marketing personnel.
SEA, Paragraph 2(A). His base salary was $4,166.67 per month plus commissions subject to adjustment after the first six months of employment at Qestec's discretion. Krummenacker claims that he received an annual salary of $50,000 plus commissions and had no management authority.
Krummenacker contends that after he became a director, officer and shareholder of Qestec, his responsibilities and compensation *177 changed drastically. He allegedly received the use of a company car, company credit card and a $2,000 personal vacation allowance, all benefits available only to directors. He also claims that his annual salary increased to $55,000 and ultimately to $100,000, the equivalent of that received by the other directors, and that he was no longer eligible for sales commissions. He admits that he was paid on a monthly basis (as opposed to the weekly payments received by the other directors) but claims that he had the option to elect weekly payments. He allegedly assumed new duties and responsibilities, including evaluation of employee performance, establishment of employee bonuses, decision-making regarding new employees, attendance at director's meetings, acting as personal guarantor on a line of credit, and management of Qestec's Sales and Marketing Department.
Krummenacker relies on F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585, 233 N.E.2d 756 (1968) in support of his abrogation argument. That case, however, is clearly distinguishable from the instant case. In F.A. Bartlett Tree, the plaintiff employer sought to enjoin the defendant, its ex-employee, from violating a non-compete clause in his employment contract. The Supreme Judicial court refused to enforce the non-compete clause, finding that fundamental changes in the employment relationship between the defendant and the plaintiff over a seventeen-year period amounted to an abandonment of the plaintiff's original employment contract. Id. at 587, 233 N.E.2d 756. For example, during that period plaintiff's compensation and sales area were changed and he was ultimately promoted from salesman to district sales manager. Id.
F.A. Bartlett Tree involved one employment relationship which was substantially changed in mid-stream. This case involves two parallel relationships, rather than one. On one level, Krummenacker was an employee of Qestec; on another, he was a shareholder, officer and director. Those separate roles are not inconsistent. All of the new duties and benefits cited by Krummenacker are simply duties and benefits related to his new position as a shareholder, officer and director. They constitute neither changes to the SEA nor an intention to abandon it. The fact that his salary was increased is irrelevant because the SEA provided for salary increases.
Moreover, there is no evidence that Krummenacker's duties as a sales executive changed after July 20, 1998. In fact, up until his termination, Krummenacker continued to use a business card which referred to his position as "Account Executive". Krummenacker claims that his business card contained no reference to his new titles and duties because he felt it would be easier to negotiate with customers if they did not know that he was a shareholder and director. That assertion, however, simply underscores the fact that Krummenacker maintained two distinct relationships with Qestec.
Krummenacker also argues that Article V of the Cross Purchase Agreement ("CPA") expressly supplants the SEA. That Article provides that if a shareholder's employment is terminated for cause, the remaining shareholders will purchase his shares at a price set elsewhere in the CPA. The definition of "cause" in Article V is somewhat different than the list of acts warranting termination under paragraph 9(B) of the SEA. That difference, however, does not indicate that the CPA supplants the SEA. The CPA deals only with the relationship between Moulin, Lawrence, Bitter and Krummenacker as shareholders. Termination of employment for any of the specified causes may trigger certain changes in *178 that relationship. But standing alone, the CPA is not a new employment agreement nor does it state an exclusive list of causes for which a shareholder employee may be terminated.
Next, Krummenacker contends that the SEA expired because the parties failed to renew it. Paragraph 9(A) of the SEA provides that it shall remain in force for a one-year term and thereafter be renewed by mutual agreement of the parties. Nothing in that paragraph requires that renewals must be made in writing. Instead, Krummenacker's continued employment by Qestec automatically renewed the SEA. By continuing to work as a sales executive and receive a salary Krummenacker implicitly assented to renewal of the SEA. Similarly, by employing him and paying the requisite salary, Qestec implicitly assented to renewal. See Mahoney v. Hildreth & Rogers Co., 332 Mass. 496, 499, 125 N.E.2d 788 (1955).
Accordingly, this Court finds that the SEA was in effect when plaintiffs terminated Krummenacker's employment.
B. Scope of the Arbitration Agreement
In their application to compel arbitration, plaintiffs contend that the arbitration provision of the SEA requires that the following issues be arbitrated: 1) whether the SEA was in effect at the time of Krummenacker's termination, and 2) whether that termination was proper under the SEA. This Court has just decided the first question by ruling that the SEA was in effect on the date of Krummenacker's termination as an employee of Qestec. With respect to the second question, this Court finds that the SEA's arbitration clause, which contains an agreement to arbitrate "any dispute arising out of or relating to" the SEA, expressly mandates arbitration pursuant to M.G.L. c. 251, § 2(a). The question of whether Krummenacker was properly terminated pursuant to paragraph 9 of the SEA clearly arises out of the SEA.
In his opposition to the application to compel arbitration, Krummenacker assumes that the plaintiffs want to arbitrate not only that narrow question but also his counterclaims for breach of the duty of good faith and loyalty by Moulin and Lawrence. He protests such arbitration on the ground that the counterclaims are outside the scope of the SEA's arbitration clause. First, he argues that because fiduciary duties are imposed on shareholders in a close corporation independent of any agreement between the shareholders, his counterclaims against Moulin and Lawrence for breach of the duty of good faith and loyalty do not arise out of SEA. That argument is persuasive, see Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 408, 649 N.E.2d 1102 (1995), and presumably Krummenacker would extend it to the counterclaims against Binder.
Second, Krummenacker contends that his counterclaims against Moulin and Lawrence also arise out of Qestec's By-Laws rather than the SEA, to the extent that those counterclaims are based on the allegation that, at the special meetings of shareholders and directors on July 5, 2000, Moulin and Lawrence failed to follow proper procedures and voting requirements set forth in the By-Laws. Again, defendant's position is well-taken. The By-Laws do not contain an applicable arbitration clause and his counterclaims are not subject to arbitration under the SEA's arbitration clause because they do not arise out of the SEA.
In any event, Krummenacker's concerns are largely moot because the plaintiffs do not seek to compel arbitration of his counterclaims. Admittedly, an arbitrator faced with the question of whether Krummenacker *179 was properly terminated according to the SEA might be forced to consider issues related to those counterclaims. For example, an arbitrator might have to decide whether such termination constituted a breach of the heightened duties owed to Krummenacker by Moulin and Lawrence as shareholders in a close corporation. The counterclaims, however, are not subject to arbitration other than in that incidental manner. This Court will, nonetheless, stay the instant litigation pending completion of limited arbitration to account for the possibility that the arbitrator's rulings may have preclusive effect on portions of Krummenacker's counterclaims.
ORDER
For the reasons set forth in the Memorandum above:
1) Plaintiffs' application to compel arbitration and to stay this action pending resolution of arbitration (Docket No. 8) is ALLOWED. The parties will proceed to arbitrate the issue of whether defendant was properly terminated pursuant to the Sales Employment Agreement and shall file with this Court quarterly status reports thereon beginning in December, 2001;
2) Defendant's cross-motion to stay arbitration (Docket No. 11) is DENIED; and
3) In light of this order compelling arbitration, the following motions are DENIED, without prejudice to being refiled after the completion thereof:
a) plaintiffs' partial motion for summary judgment (Docket No. 24);
b) defendant's partial motion for summary judgment (Docket No. 15);
c) plaintiffs' motion for leave to file supplemental memorandum and affidavit concerning cross-motions for partial summary judgment (Docket No. 38);
d) plaintiffs' motion to certify question of law to the Supreme Judicial Court of Massachusetts (Docket No. 25);
e) defendant's motion for an order compelling production of documents (Docket No. 18); and
f) defendant's motion for leave to amend verified counterclaim (Docket No. 17).
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563398/ | 16 So. 3d 830 (2009)
BARROSO
v.
STATE.
No. 5D08-1688.
District Court of Appeal of Florida, Fifth District.
August 25, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459827/ | 164 F. Supp. 2d 1153 (2001)
In re WORLD WAR II ERA JAPANESE FORCED LABOR LITIGATION.
This Document Relates To:
Resus
v.
Mitsui & Co., Ltd., et al,
Llanza
v.
Mitsui & Co. (USA), Inc., et al,
Saldajeno
v.
Ishihara Sangyo Kaisha Ltd., et al.,
Santo Domingo
v.
Ishihara.
No. MDL-1347. Nos. 00-3313, 00-3240, 00-2960, 00-3828.
United States District Court, N.D. California.
September 17, 2001.
*1154 William S. Lerach, Frank J. Janecek, Elizabeth J. Arleo, Patrick W. Daniels, Milberg Weiss Bershad Hynes & Lerach LLP, San Diego, CA, John J. Bartko, William I. Edlund, Bartko Zankel Tarrant & Miller, San Francisco, CA, Albert H. Meyerhoff, Milberg Weiss Bershad Hynes & Lerach LLP, Los Angeles, CA, Steve W. Berman, Jeffrey T. Sprung, Hagens Berman, P.S., Seattle, WA, Kevin P. Roddy, Hagens Berman LLP, Los Angeles, CA, Michael Goldstein, Law Offices of Michael Goldstein, Cardiff, CA, for World War II Era Japanese Forced Labor Litigation, Gloria Tyler Alfano, Shang-Ting Sung.
Daniel C. Girard, Anthony K. Lee, Gordon M. Fauth, Girard & Greene LLP, San Francisco, CA, Jay W. Eisenhofer, Grant & Eisenhofer, P.A., Wilmington, DE, for James O. King.
David S. Casey, Jr., Bonnie E Kane, Wendy M Behan, Herman Mathis Casey & Kitchens LLP, San Diego, CA, James W. Parkinson, Palm Desert, CA, Joe R Reeder, C Allen Foster, Greenberg Traurig, Washington, DC, Maury Herman, Russ M Herman, Leonard A Davis, David K Fox, Herman Middleton Casey & Kitchens LLP, New Orleans, LA, Ronald W Kleinman, Greenberg Traurig, Washington, DC, for Woodrow M. Hutchinson, Manuel A. Eneriz, Melody Solis, Harold W. Poole, Ernest Harold Liy, Robert C. Clark, Francis W., Clarence S. Kellogg, Harry Corre, Raymond Heimbuch, Vivian O. Johnson, William R. Lowe, Sam P. Buse, Alfred Berest, Edwin F. Lindros, Michael Bibin, J.S. Gray, Karl William Holt, Norman R. Matthews, Darrel D. Stark, Carmel Zipeto, Manuel A. Eneriz, Lester I. Tenney, Shirley M. Rubenstein, Julia E. Stevenson, Glen Leroy Bailey.
Scott W. Wellman, Wellman & Warren LLP, Irvine, CA, Robert A. Swift, Kohn Swift & Graf, Philadelphia, PA, Edward D. Fagan, Fagan & Associates, New York, NY, Scott R Warren, Wellman & Warren LLP Irvine, CA, Denis Sheils, Kohn Swift & Graf, PC, Philadelphia, PA, Michael Witti, Monchen (Bogenhausen), Germany, Henry Burstyner Glennen, Burstyner & CO, Melbourne, Australia, for Raymond Wheeler.
William S. Lerach, Frank J. Janecek, Elizabeth J. Arleo, Patrick W. Daniels, Milberg, Weiss, Bershad Hynes & Lerach LLP, San Diego, CA, Michael Rubin Altshuler, Berzon Nussbaum Rubin & Demain, San Francisco, CA, Howard D. Finkelstein, Finkelstein & Associates, San Diego, CA, Albert H. Meyerhoff, David R. *1155 Scott, Neil Rothstein, Scott & Scott, LLC, Colchester, CT, Jonathan W. Cuneo, Cuneo Law Group, P.C., Washington, DC, Steve W. Berman, Jeffrey T. Sprung, Hagens Berman, P.S., Seattle, WA, Henry H. Rossbacher, Rossbacher & Associates, Los Angeles, CA, Kevin P. Roddy, Hagens Berman, LLP, Los Angeles, CA, Jeffrey R. Krinsk, Finkelstein & Krinsk, San Diego, CA, L. Thomas Galloway, Galloway & Associates, Boulder, CO, for Finnie B. Price.
Dennis Sheils, Robert A. Swift, Kohn Swift & Graf, PC, Philadelphia, PA, Michael Witti, Henry Burstyner, Scott W Wellman, Scott R Warren, Wellman & Warren, Laguna Hills, CA, Edward D Fagan, Fagan & Associates, Livingston, NJ, Brent A Granado, Wellman & Warren LLP, Laguna Hills, CA, for Frank A. Mente, Neville J. Booker.
Michael Witti, Henry Burstyner, Scott W Wellman, Scott R Warren, Wellman & Warren, Laguna Hills, CA, Robert A. Swift, Kohn Swift & Graf, Philadelphia, PA, Edward D Fagan, Fagan & Associates, Livingston, NJ, for H. Joseph Terrence.
Daniel C. Lieb, Samuel Leib, for Garth Dunn.
Paul F. Doyle, Kelley Drye & Warren, LLP, New York City, Sabina A. Helton, Kelley Drye & Warren LLP, Los Angeles, CA, for Ruben Resus, Carlos Cadenilla.
Christopher B. Hockett, Rebecca M. Archer, David M. Balbanian, McCutchen Doyle Brown & Enerson, LLP, San Francisco, CA, for Mitsui & Co., Ltd., Mitsui & Co. (USA), Inc.
Nathan Lane, III, Joseph A. Meckes, Squire Sanders & Dempsey LLP, San Francisco, CA, for Mitsui Engineering & Shipbuilding Co., Ltd., Paceco Corp., Ishihara Corp. (U.S.A.), ISK Americas, Inc.
Robert A. Sacks, Sullivan & Cromwell, Los Angeles, CA, for Nippin Steel USA Inc., Nippon Steel Corp., Nippon Steel Trading Co., Ltd., Nippon Steel Trading America.
Arne D. Wagner, Tamu K. Sudduth, Kathleen V. Fisher, Phyllis A. Oscar, Morrison & Foerster, LLP, San Francisco, CA, for Mitsubishi Corp., Mitsubishi Intern. Corp.
John H. Beisner, Teresa E. Dawson, John F. Niblock, Benjamin R Jacewicz, Carrielyn D Guymon, O'Melveny & Myers LLP, Washington, DC, for Mitsubishi Materials Corp., Mitsubishi Materials USA Corp.
Nathan M. Spatz, Barbara L Croutch, Michael J Finnegan, Pillsbury Winthrop LLP, Los Angeles, CA, Bruce E.H. Johnson, Davis Wright Tremaine, Seattle, WA, Martin L. Fineman, Davis Wright Tremaine, San Francisco, CA, Arthur W. Harrigan, Danielson Harrigan & Tollefson LLP, Seattle, WA, Richard R Holmquist, Danielson Harrigan & Tollefson LLP, Seattle, WA, for Mitsubishi Heavy Industries Ltd., Mitsubishi Heavy Industries America, Inc.
Linda E. Shostak, Lloyd W. Aubry, Jr., Kathryn M Davis, Morrison & Foerster LLP, San Francisco, CA, for Ishikawajima Harima Heavy Industries Ltd., IHI, Inc.
Shannon M. Hansen, Kirkland & Ellis, Los Angeles, CA, Thomas D. Yannucci, James F. Basile, Christopher Landau, Brant W. Bishop, Kirkland & Ellis, Washington, DC, for Sumitomo Heavy Industries Ltd., Sumitomo Heavy Industries (USA), Inc.
Robert S. Mueller, III, U.S. Attorney's Office, San Francisco, CA, David J. Anderson, Vincent M. Garvey, Department of Justice, Civil Division, Washington, DC, David W. Ogden, U.S. Attorney's Office, Torts Branch - Civil Division, San Francisco, CA, Martha Rubio, U.S. Department of *1156 Justice, Civil Div., Washington, DC, for U.S.
Peter I. Ostroff, Ronald L. Steiner, Mark E Haddad, Sidley Austin Brown & Wood, Los Angeles, CA, for Nippon Sharyo Ltd., Nippon Sharyo U.S.A., Inc.
Douglas E. Mirell, Loeb & Loeb LLP, Los Angeles, CA, Joseph Geisman, Loeb & Loeb LLP, Los Angeles, CA, Matthew E. Digby, Heidi A Leider, Bingham Dana LLP, Los Angeles, CA, for Japan Energy Corp.
Neil A.F. Popovic, Stephen V. Bomse, Rakesh K. Anand, Heller Ehrman White & McAuliffe, San Francisco, CA, for Showa Denko America, Inc.
Matthew E. Digby, Heidi Leider, Bingham Dana, Los Angeles, CA, for Mitsui Mining USA, Inc., Mitsui Mining Co., Ltd.
Richard M. Frank, Louis Verdugo, Jr., CA Attorney General's Office, Oakland, CA, Bill Lockyer, CA Attorney General, Los Angeles, CA, Catherine Z Ysrael, Attorney General, Los Angeles, CA, for People of State of Califronia, amicus curiae.
ORDER
WALKER, District Judge.
In these consolidated actions, plaintiffs from various countries seek damages and other remedies from Japanese corporations for their forced labor during World War II. The four matters in the above caption represent the classes of Filipino plaintiffs. On September 21, 2000, the court dismissed the claims of plaintiffs who were United States or Allied soldiers in the war based on the court's conclusion that the 1951 Treaty of Peace with Japan constitutes a waiver of such claims. In re World War II Era Japanese Forced Labor Litigation, 114 FSupp2d 939, 942 (N.D.Cal.2000) (Order No 4). Motions to dismiss brought by plaintiffs who were not members of the armed forces of the United States or its allies were not addressed by the order and remain pending with the court. The four matters involving Filipino plaintiffs were transferred to this court after the initial hearing on defendants' motions to dismiss. As a result, defendants now move to dismiss and/or for judgment on the pleadings in the actions involving Filipino plaintiffs.
I
The Filipino plaintiffs assert essentially the same claims as the other plaintiffs in these actions. Most notably, they seek compensation under California Code of Civil Procedure § 354.6, a law permitting an action by "any person who was a member of the civilian population conquered by the Nazi regime, its allies or sympathizers, or prisoner-of-war [of the same regimes] *** [to] recover compensation for labor performed as a Second World War slave labor victim *** from any entity or successor in interest thereof, for whom that labor was performed ***." CalCCP § 354.6. The Filipino plaintiffs also assert claims under California tort and common law, such as intentional infliction of emotional distress, conversion, unjust enrichment, constructive trust and unfair business practices prohibited by California Bus & ProfCode § 17200. One of the Filipino plaintiffs also asserts violations of the "law of nations."
Defendants argue that the claims of the four Filipino actions are barred by the Treaty of Peace with Japan for the same reasons the claims of the Allied POWs are barred. As noted in Order No 4, the treaty was signed at San Francisco on September 8, 1951, by the representatives of the United States and 47 other Allied powers and Japan. Treaty of Peace with Japan, [1952] 3 UST 3169, TIAS No 2490 (1951) (hereinafter, Treaty). The waiver provision in the treaty is Article 14(b). See id at 3183. In essence, that provision broadly waives "all" reparations and "other *1157 claims" of the "nationals" of Allied powers "arising out of any actions taken by Japan and its nationals during the course of the prosecution of the war." Id. Defendants argue that the Philippines was an "Allied Power," and thus the claims of any of its nationals are barred. The key issue for the court to address, therefore, is whether the Philippines is an "Allied power" subject to the provisions of the treaty.
Article 25 of the treaty defines "Allied Powers" for the purposes of the treaty. Id at 3190. In relevant part, that article provides that "the Allied Powers shall be the States at war with Japan, or any State which previously formed a part of the territory of a State named in Article 23, provided that in each case the State concerned has signed and ratified the Treaty." Id. The Philippines was an official signatory of the treaty. Id. at 3304. Article 23, which directs each signatory to ratify the treaty, specifically names the Republic of the Philippines. Id. at 3189. Indeed, the Philippines sent six representatives to the treaty negotiations to sign on behalf of the country: Carlos P Romulo, JM Elizalde, Vicente Francisco, Diosdado Macapagal, Emiliano T Tirona and VG Sinco. Id. The Philippines ratified the treaty on July 23, 1956, and deposited the ratification with the United States pursuant to Article 24 of the treaty. See MJ Bowman and DJ Harris, Multilateral Treaties Index and Status at 172 (Butterworths 1984) (Def Req for Judicial Notice (Doc # 200), Exh B). The treaty thus became effective in the Philippines on July 23, 1956. Id.
The Filipino plaintiffs do not dispute any of these facts. In fact, a professor submitting a declaration in support of their opposition explicitly states that "Article 14(b) is to be read as a waiver by the Philippines [sic] with respect to the claims of Filipino nationals `arising out of any action taken by Japan and its nationals in the course of the prosecution of the war.'" Magallona Decl (Doc # 249), ¶ 3.
In sum, because the Philippines is specifically named in Article 23 and the country both signed and ratified the treaty, under Article 25 the Philippines is an Allied power for purposes of the treaty. Treaty at 3190. The court finds, therefore, that for the reasons discussed in Order No 4, the Treaty of Peace with Japan bars the claims of the Filipino plaintiffs.
II
In an effort to avoid the preclusive effect of the treaty, the Filipino plaintiffs put forth several unpersuasive arguments, several of which were likewise asserted by the Allied plaintiffs but rejected in Order No 4. In their first and most prominent argument, the Filipino plaintiffs assert that their claims do not arise out of conduct taken "in the prosecution of the war." PlOppBr (Doc # 247) at 4-8. As the court noted in Order No 4, "[i]t is particularly far-fetched to attempt to distinguish between the conduct of Imperial Japan during the Second World War and the major industry that was the engine of its war machine." In re World War II, 114 FSupp2d at 948. The Filipino plaintiffs are asking the court to make that distinction.
The Filipino plaintiffs argue that their complaints are different from those in the Allied matters. Specifically, they contend that no facts are alleged which would permit the court to infer that defendants' conduct in the Philippines was taken in the course of the prosecution of the war. PlOppBr (Doc # 247) at 5. The court has reviewed the four Filipino complaints and finds this argument to be seriously disingenuous.
Three of the four complaints are filled with allegations equating the actions of defendants with those of Japan's efforts to *1158 prosecute the war. For example, the Llanza complaint asserts that "[t]he defendants, in collaboration and conspiracy with the Empire of Japan, developed plan [sic], scheme [sic] and/or common enterprises, through and by which the defendants enabled the Empire of Japan to conduct and execute the entire operations of World War II." Llanza compl, ¶ 64. The same complaint then asserts that "the Japanese government established programs whereby the Japanese companies could use the Filipino, and other allied civilians and POWs as slave or forced laborers *** `toward the prosecution of the Greater East Asiatic War.'" Id., ¶ 72 (quoting the Japanese Prisoners of War Bureau). Similarly, the Resus complaint alleges that a "Japanese military government de facto ruled the [Philippines] until it was liberated in February 1945 *** [and] appropriated ownership of non-Japanese owned industry and production which, in turn, commissioned or entrusted them to private Japanese companies including the defendants *** [who] forced Filipinos to work as slave and forced laborers." Resus compl, ¶¶ 104-05 (emphasis in original). The Saldajeno complaint asserts that "one of Japan's major purposes *** in occupying [the Philippines] was to exploit the *** large deposits of copper, coal, manganese and iron all resources that Japan badly needed for its wartime efforts." Saldajeno compl, ¶ 37.
The Filipino plaintiffs ignore these allegations and, instead, hang their argument on the Santo Domingo complaint only. That particular action was initiated after the court issued Order No 4. Consequently, the plaintiffs in that matter have artfully attempted to plead around the Article 14(b) bar. The complaint alleges that "[o]ne of Defendants' *** goals from 1941-1945 was to exploit the natural resources in the area, especially mining resources, for their self-interest, profit, and financial gain, and not for the prosecution of the war." Santo Domingo compl, ¶ 27. Assuming that defendants' intent was not to prosecute the war by operating their businesses with the help of forced labor, however, does not establish that Japan's intent in "transacting business" with such defendants was not to help Japan prosecute the war. See id, ¶ 39. As defendants correctly point out, the treaty unambiguously waives all Allied claims "arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war" regardless whether defendants sought to prosecute the war or simply sought financial gain. See Treaty at 3183 (emphasis added). Indeed, the fact that the Santo Domingo plaintiffs assert a claim under California Code of Civil Procedure § 354.6 demonstrates that they seek compensation for injuries arising in the course of Japan's prosecution of the war. As stated above, it would be a stretch to attempt to distinguish between the conduct of Japan during the war and the companies that supported its war machine. Overall, therefore, the allegations of the Filipino complaints demonstrate that their actions are within the scope of the treaty's waiver.
The Filipino plaintiffs also put forth several arguments that, at bottom, contend waiver of their claims renders the treaty unconstitutional under Filipino constitutional law and invalid under the fundamental norms of international law. See PlOppBr (Doc # 247) at 9-14. The court previously rejected similar arguments by the Allied plaintiffs. As stated in Order No 4, these arguments are "contrary to the well-settled principle that the government may lawfully exercise its `sovereign authority to settle the claims of its nationals against foreign countries.'" In re World War II, 114 FSupp2d at 948 (quoting Dames & Moore v. Regan, 453 U.S. 654, 679-80, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981); citing Neri v. United States, 204 *1159 F.2d 867, 868-69 (2d Cir.1953) (enforcing treaty waiver of reparations claims)). Whether waiver of the Filipino plaintiff's claims violates the constitutional law of the Philippines (as opposed to American constitutional law) is beside the point. Treaties made under the authority of the United States, such as the Treaty of Peace with Japan, are "the supreme Law of the Land." U.S. Const, Art VI. For challenges to such treaties brought in American courts, therefore, the relevant inquiry is whether the treaty complies with American law, not the law of another nation. As the Supreme Court concluded long ago:
The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States. It is their duty to interpret it and administer it according to its terms. And it would be impossible for the executive department of the government to conduct our foreign relations with any advantage to the country, and fulfil the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered.
Doe v. Braden, 57 U.S. 635, 657, 16 How. 635, 14 L. Ed. 1090 (1853). Hence, the laws of the Philippines are not relevant for the court's analysis of a treaty made under the authority of the United States. See id.
The Filipino plaintiffs also argue that the waiver provision does not apply to them because the reparations agreement between Japan and the Philippines only releases Japan from claims to the extent of its payment of reparations. PlOppBr (Doc # 247) at 18-19. Applying the terms of the reparations agreement to trump the waiver provision of the treaty strains logic and simply contradicts the unambigous language of the reparations agreement. Specifically, the agreement releases Japan "from its reparations obligation" to the extent of Japan's payments under the agreement. See Reparations Agreement Between Japan and the Republic of the Philippines, Article 6 (Def Req for Judicial Notice (Doc # 200), Exh C at 4). Hence, the passage cited by the Filipino plaintiffs in Article 6 merely releases Japan from its reparations obligations as they are paid. Id. ("By and upon making a payment *** Japan *** shall be released from its reparations obligation to the extent of *** such *** payment."). The waiver provision in the treaty thus still applies.
Finally, the Filipino plaintiffs assert that the Alien Tort Claims Act (ATCA), 28 USC § 1350, provides the court with jurisdiction to hear the claims of the Filipino plaintiffs. See PlOppBr (Doc # 247) at 19-20. To be sure, the act provides district courts with "original jurisdiction" over claims by aliens for torts "committed in violation of the law of nations or a treaty of the United States." 28 USC § 1350. But the court has already determined that federal subject matter jurisdiction exists for claims, such as these, that are based on the federal common law of foreign policy and relations. In re World War II, 114 FSupp2d at 943-44. The Ninth Circuit's conclusion that the act also creates a cause of action for "violations of specific, universal and obligatory" norms under international law does not alter matters. See In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir.1994) (citation omitted). The treaty precludes the claims of the Filipino plaintiffs regardless of the authority under which these claims are brought. Accordingly, the ATCA may enable this court to hear the Filipino plaintiffs' claims, *1160 but it does not eliminate the preclusive effect of the treaty.
For the foregoing reasons, defendants' motions to dismiss and/or for judgment on the pleadings are GRANTED with respect to the actions involving Filipino plaintiffs. The clerk shall enter judgment in the above-captioned cases.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563524/ | 155 F.2d 919 (1946)
SPAULDING
v.
UNITED STATES.
No. 10177.
Circuit Court of Appeals, Sixth Circuit.
January 4, 1946.
*920 Before HICKS, SIMONS and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
Nine years after the petitioner was sentenced in the Western District of Tennessee for violation of the Mail Fraud Statute, Title 18 U.S.C.A. § 338, he filed in this court, though addressed to but one of its judges, a petition designated as one for a writ of error coram nobis. During the interim his sentence to three consecutive five-year terms upon three counts of an indictment, was affirmed by this court in Bogy v. United States, 6 Cir., 1938, 96 F.2d 734, a petition for writ of habeas corpus was by us denied on July 2, 1942, a similar petition denied in 1943 by the District Court of Georgia with denial affirmed in Spaulding v. Sanford, 5 Cir., 142 F.2d 444, and the petitioner has been released from the penitentiary on parole subject to the supervision of the United States Probation Officer for the Southern District of Mississippi.
While the writ sought is now obsolete in federal practice, being replaced by a motion in the case, Strang v. United States, 5 Cir., 53 F.2d 820; United States v. Mayer, 235 U.S. 55, 67, 35 S. Ct. 16, 59 L. Ed. 129, though still available in some of the states, Hysler v. State of Florida, 315 U.S. 411, 415, 316 U.S. 642, 62 S. Ct. 688, 86 L. Ed. 932, and lies only in the trial court, Strang v. United States, supra, we nevertheless give the petition consideration, first, because the petitioner is without representation, is not himself a lawyer, and seeks relief in forma pauperis; second, because this court having affirmed the judgment complained of, it is necessary that leave be here sought before attacking it. Strang v. United States, supra. We treat the petition, however, as one addressed to the court rather than to a single judge, as an appropriate petition for leave to file the proper motion in the district court, and our authority to grant leave so to file, conditioned upon a showing that the proposed attack on the challenged judgment is meritorious.
The petitioner's principal grievance is that the probation officer of the district will not permit him to take gainful employment as a salesman. Conceiving, perhaps, and, if so, rightly, that relief from such prohibition must be sought, if at all, from administrative authority, the petitioner seeks to review the judgment and sentence upon the third count of the indictment. He alleges numerous grounds of invalidity, including allegations that there was a falsification of testimony and exhibits at the trial, that both judge and jury were prejudiced, that he was never arraigned before a United States Commissioner, that two confessions signed by him before the trial were fraudulently obtained, that count three was invalid, that he was denied assistance of counsel because his attorney did not fairly represent him, call necessary witnesses or ably cross-examine government witnesses. He also complains that his attorney obtained property fraudulently from his mother-in-law, and deceived him as to the filing of a petition for writ of certiorari in the Supreme Court of the United States.
The writ of error coram nobis was at common law used to bring before the court that pronounced the judgment, errors in matters of fact which had not *921 been put in issue or passed upon and were material to the validity and regularity of the proceeding. United States v. Mayer supra; Strang v. United States, supra; Kelly v. United States, 9 Cir., 138 F.2d 489; Meredith v. United States, 6 Cir., 138 F.2d 772. It is not available in federal courts for errors of law, and the analogous motion is exceedingly limited in scope, available only where errors are of such fundamental character as to render the proceeding itself irregular and invalid. United States v. Mayer, supra. It cannot be used to review the proceeding as upon a motion for new trial or as on appeal. Barber v. United States, 4 Cir., 142 F.2d 805. It will not lie to contradict or put in issue facts already adjudicated or known at the time of trial. Carruthers v. Reed, 8 Cir., 102 F.2d 933. It does not lie for prejudicial misconduct in the course of the trial or for newly discovered evidence. U. S. v. Gardzielewski, 7 Cir., 135 F.2d 271. A petitioner is not entitled to it as a matter of right. Tinkoff v. United States, 7 Cir., 129 F.2d 21. In relying upon it the petitioner must do more than merely state general conclusions and must enable the appellate court to ascertain whether the facts alleged would afford at least a prima facie ground for the writ. Hysler v. Florida, supra. It is generally held that laches may bar relief and in any event notice must be given to the opposing party.
A careful consideration of the present petition, with its accompanying papers, discloses generally nothing more than vague suspicion of impropriety at the trial, unaccompanied by specific factual allegations of irregularity, and circumstances fully known during the trial and at the appeal. In the single instance relating to the alleged misconduct of the petitioner's counsel, wherein specific charges of fraud are made, they relate to conduct dehors the proceedings in the district court and have no bearing upon their regularity or validity. We are therefore constrained to conclude that the petition fails to state a meriorious case for the granting of leave to file the appropriate corrective proceeding in the district court, and it is, therefore, denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563512/ | 16 So. 3d 792 (2009)
Jerald Everett ATKINS
v.
STATE of Alabama.
2070735.
Court of Civil Appeals of Alabama.
February 13, 2009.
*793 Thomas E. Drake II, Cullman, for appellant.
Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
*794 THOMPSON, Presiding Judge.
Jerald Everett Atkins appeals from the judgments of the trial court ordering the condemnation and forfeiture of $7,128 in currency and of a 1998 Buick Regal automobile ("the Regal").
On June 13, 2007, the State filed separate civil-forfeiture complaints regarding the currency, case number CV-07-99, and the Regal, case number CV-07-100, pursuant to § 20-2-93, Ala.Code 1975. The trial court held a single bench trial on both complaints. The evidence adduced at the trial tended to show the following.
On June 11, 2007, Chief Agent Stanley Webb of the Marion County Drug Task Force was involved in surveillance of Benefield Farm Road in Marion County. Law-enforcement officials had received complaints of drug traffic in the area. Agent Webb testified that while he was watching Benefield Farm Road he saw Atkins leave a home where Webb knew drug buys had taken place in the past. Webb followed Atkins from the home. After seeing Atkins drive off the edge of the road twice, Webb activated the blue lights on his patrol car and had Atkins pull over.
After determining that Atkins had a valid driver's license and proof of insurance, Agent Webb asked whether Atkins had any drugs, large sums of money, or weapons in the Regal. Atkins said that he did not and agreed to allow Webb to search the vehicle. Webb said that he first searched Atkins to ensure that he did not have any weapons. He discovered a set of scales in one of Atkins's back pockets and a large sum of money in the other. Atkins told Webb that the money constituted the proceeds from the sale of land. Atkins also produced an unspecified number of Lortab tablets from his front pocket. Lortab is a controlled substance, and Atkins did not have a prescription for the pills.
Agent Webb arrested Atkins for possession of a controlled substance; the currency and the Regal were seized at the time of Atkins's arrest. Agent Webb testified that Atkins said that he was working with the Alabama Bureau of Investigation ("ABI") and that Webb should call a certain ABI agent. Agent Webb read Atkins his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Atkins then continued to tell Agent Webb about a drug transaction on which he was working. Atkins told Agent Webb that he had just returned from Georgia, where he had attempted to buy one and one-half pounds of "ice," or methamphetamine, but that he had not been successful.
Atkins acknowledged that the ABI agent with whom he was purportedly working was not aware of the attempted buy. Agent Webb spoke with the ABI agent as Atkins had requested and learned that, although the ABI had made an effort to work with Atkins, Atkins had not reciprocated.
The evidence also showed that Atkins and his wife had sold a parcel of property for $10,000 in the days just before Atkins's arrest. They had received a check for the full amount on Friday, June 8, 2007. That same day, Atkins's wife had deposited $250 and had taken the balance of the proceeds in cash. The evidence is undisputed that, when Agent Webb arrested Atkins, the money discovered in Atkins's pocket was in an envelope like the type banks provide to their customers who cash checks. Atkins testified that on Monday, June 11, 2007, the day he was stopped, he had been carrying a large amount of the cash to pay off the balance owed on his car and to make a payment on his home mortgage to prevent foreclosure. He also said that the Regal was not the vehicle he used to travel *795 to Georgia when he attempted to buy drugs.
Atkins contends that the State failed to present sufficient evidence to show that either the currency or the Regal was linked to a drug transaction. The State asserts that Atkins failed to preserve this issue for appellate review because Atkins failed to raise it to the trial court either by objection or by a motion for a new trial. The State does not address the merits of Atkins's appeal.
Rule 52(b), Ala. R. Civ. P., provides, in pertinent part, as follows:
"When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial."
(Emphasis added.) Because this matter was tried by the court without a jury, and because, as discussed below, the trial court included findings of fact in its written forfeiture judgments, this court may consider the question of the sufficiency of the evidence even though Atkins failed to specifically raise the issue in the trial court. See Allen Revival Ctr. of Faith, Inc. v. Wilson Ave. Baptist Church, 959 So. 2d 127 (Ala. Civ.App.2006), and the cases cited therein.
On appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore tenus, the trial court's findings of fact are presumed to be correct and the judgment will be reversed only if it is contrary to the great weight of the evidence. Holloway v. State ex rel. Whetstone, 772 So. 2d 475, 477 (Ala.Civ. App.2000). In other words, a trial court's judgment based on ore tenus evidence will not be reversed absent a showing that it amounts to an abuse of discretion. Hillegass v. State, 795 So. 2d 749, 753 (Ala.Civ. App.2001).
In King v. State, 938 So. 2d 967 (Ala.Civ. App.2006), this court discussed the State's burden when it seeks to have property condemned pursuant to the civil-forfeiture statute.
"`"`Under § 20-2-93 the State must establish a prima facie case for the seizure, condemnation, and forfeiture of the property. The standard of proof is reasonable satisfaction. The statute is penal in nature and, as such, should be strictly construed.'"' Ex parte McConathy, 911 So. 2d 677, 681 (Ala.2005) (quoting Holloway v. State ex rel. Whetstone, 772 So.2d [475] at 476 [(Ala.Civ.App.2000)], quoting in turn State v. Smith, 578 So. 2d 1374, 1376 (Ala.Civ.App.1991))."
King, 938 So.2d at 970.
Atkins contends that the State failed to present sufficient evidence to connect the Regal to a specific drug transaction so as to warrant its condemnation and forfeiture.[1]
*796 "[T]o obtain the forfeiture of a vehicle pursuant to § 20-2-93(a)(5), Ala. Code 1975, the State must establish that the vehicle has been `used, or ... intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment' of a controlled substance." Kuykendall v. State, 955 So. 2d 442, 444 (Ala.Civ.App.2006). "To justify the forfeiture of a vehicle, the trier of fact must be reasonably satisfied that the vehicle was used to illegally transport or to facilitate the transportation, sale, receipt, possession, or concealment of a controlled substance. Ex parte Dorough, 773 So. 2d 1001, 1003 (Ala.2000)." Id. at 444-45.
The State presented evidence indicating that Agent Webb had pulled over Atkins's vehicle after Atkins had been seen leaving the house of a known drug dealer. At the time he was stopped, Atkins was carrying Lortab pills for which he had no prescription. Agent Webb testified that the vehicle Atkins was driving at the time was the vehicle that was seized. Such evidence is sufficient to reasonably satisfy the finder of fact that the vehicle was used to transport a controlled substance, as well as to facilitate Atkins's purchase of Lortab from a known dealer.
Atkins also contends that, because the State failed to prove the make and model of the vehicle he was driving at the time of his arrest, the evidence was insufficient to warrant the forfeiture of the Regal. However, the record shows that Atkins testified that the vehicle he was in when Agent Webb pulled him over was the "1998 Buick Regal." The evidence supports a conclusion that the vehicle seized when Atkins was arrested was adequately identified so as to warrant the forfeiture of that vehicle.
The State alleged in its forfeiture complaint in case number CV-07-99 that the $7,128 in currency seized from Atkins after he was arrested on June 11, 2007, was "believed to be the proceeds from illegal drug transactions." In the order condemning the currency, the trial court found that "the currency which is the object of this proceeding was used in an illegal drug transaction."
Section 20-2-93(a)(4), Ala.Code 1975, provides for forfeiture of
"[a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state; all proceeds traceable to such an exchange; and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of any law of this state concerning controlled substances."
Ex parte McConathy, 911 So. 2d 677 (Ala.2005), involved facts similar to this case. McConathy was detained after he bought 23 Xanax pills from a police informant. At the time he was detained, McConathy was carrying $8,000 in cash. The State filed a petition for civil forfeiture of the $8,000. As Atkins did in the instant case, McConathy presented evidence at the forfeiture hearing indicating that the cash was derived from the sale of property. Nonetheless, the trial court ordered the money forfeited.
The Alabama Supreme Court reversed the judgment of the trial court, concluding that the State had presented no evidence linking the $8,000 to McConathy's purchase of the Xanax pills. McConathy, 911 So.2d at 682. The supreme court noted that "[t]he mere presence of money in the proximity of controlled substances is insufficient to justify the forfeiture of the money." Id., citing Gatlin v. State, 846 So.2d *797 1090 (Ala.Civ.App.2002). The McConathy court continued:
"`Our forfeiture cases have found the following circumstances to be indicative of contemplated or completed drug transactions: a large quantity of drugs, see, e.g., Shepherd v. State, 664 So. 2d 238 (Ala.Civ.App.1995) (21 pounds of marihuana); drugs packaged for sale, see, e.g., Pointer v. State, 668 So. 2d 41 (Ala.Civ.App.1995); drug paraphernalia or accouterments indicating sale, such as "baggies" or scales, see, e.g., Johnson v. State, 667 So. 2d 105, 108 (Ala.Civ.App. 1995). None of those circumstances, nor an equivalent circumstance, is present in this case.
"`Our forfeiture cases have also remarked on the inherent incredibility of a defendant's explanation for having in his or her possession a large quantity of cash. See, e.g., Harris v. State, 821 So. 2d 177 (Ala.2001) (finding inherently incredible a defendant's story that the source of $120,000 in cash was a $90,000 payment the defendant received upon her husband's death 17 years earlier, an amount that the defendant said had increased to $120,000 despite the fact that the defendant admitted that she kept the money at home in shoe boxes and lent some to friends, but charged no interest). See also Vaughn v. State, 655 So. 2d 1039, 1041 (Ala.Civ.App.1995) (noting that the defendant, who was found with a large amount of cash, was unemployed and had "no visible means of support"). ...'"
McConathy, 911 So.2d at 686, quoting Gatlin, 846 So.2d at 1093.
Arguably, in this case there may have been sufficient evidence from which to determine that Atkins intended to use the money to make an illegal drug buy. His own testimony indicated that he intended to purchase methamphetamine in Georgia, and when he was arrested he was carrying scales, an accouterment used in the sale of drugs. However, there is no evidence to suggest that the money Atkins had in his pocket had been "used in an illegal drug transaction," as the trial court found in its written order and as alleged by the State. Atkins presented evidence indicating that the confiscated money constituted the proceeds from what appears to be the legitimate sale of a parcel of property. That evidence was not disputed by the State. There was no evidence presented at the hearing to connect the $7,128 taken from Atkins to any specific drug transaction. In fact, at the close of the forfeiture hearing, the trial court acknowledged that, "from the testimony that I have heard it seems as though that the currency the defendant had on him at the time was from a land transaction where property was sold." The trial court did go on to state its belief that the money "was to be used to purchase drugs as stated by Mr. Atkins to Mr. Webb." That was not the factual finding stated in the subsequent written order of forfeiture, however.
Although it is true that an appellate court may affirm a judgment of a trial court on a ground not relied upon by the trial court, this is so only if the alternative ground is a "valid legal ground." Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala.2003) (subject to due-process constraints, appellate courts "will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court"); Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala.1988) (an appellate court "`will affirm the judgment appealed from if supported on any valid legal ground,'" even if that ground is not raised below (quoting Tucker v. Nichols, 431 *798 So.2d 1263, 1265 (Ala.1983))); Pavilion Dev., L.L.C. v. JBJ P'ship, 979 So. 2d 24, 41-43 (Ala.2007) (Murdock, J., concurring specially).
In Curtis White Construction Co. v. Butts & Billingsley Construction Co., 473 So. 2d 1040, 1041 (Ala.1985), our supreme court stated:
"It is the function of a trial judge sitting as factfinder to decide facts where conflicts in the evidence exist. ... The appellate courts do not sit in judgment of the facts, and review the factfinder's determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law."
Here, we conclude that the State presented insufficient evidence to support the trial court's written finding that the money forfeited was used in an illegal drug transaction. Accordingly, the trial court's judgment entered in case number CV-07-99 ordering the condemnation and forfeiture of $7,128 in currency must be reversed and the cause remanded for the entry of a judgment consistent with this opinion.
In a one-sentence "argument" in which he purports to cite to the "entire record," Atkins contends that the State failed to offer evidence as to where the events serving as the basis for this matter occurred. The record does not support that contention, however. At the close of Agent Webb's testimony, the prosecutor asked, "Of course all of this that occurred, occurred in Marion County?" Webb replied, "Yes, sir." There is no merit to Atkins's assertion that there was no evidence presented to establish venue.
For the reasons stated above, the judgment in case number CV-07-100, ordering the condemnation and forfeiture of the Regal, is affirmed. The judgment in case number CV-07-99, ordering the condemnation and forfeiture of $7,128 in currency, is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
PITTMAN and MOORE, JJ., concur.
BRYAN and THOMAS, JJ., concur in the result, without writing.
NOTES
[1] The complaint seeking condemnation and forfeiture of the Regal fails to name a defendant in the caption. The accompanying summons, however, did name as the defendants "One 1998 Buick Regal, VIN #2G4WB52K9W1537166, Tag # 49A868V, and Jerald Everett Atkins as owner and driver." However, a review of the record shows that Atkins did not object to the failure of the State to include a defendant in the caption of the complaint regarding the Regal, and he submitted to the jurisdiction of the court without objection. Because Atkins did not raise this issue and defended the complaint on the merits, there is no ground for reversal as to this issue. Glenn Armentor Law Corp. v. Counts, 683 So. 2d 964 (Ala.Civ.App.1994), overruled on other grounds by Ex parte Counts, 683 So. 2d 968 (Ala. 1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2399908/ | 455 S.W.2d 141 (1970)
A.C. LAWRENCE LEATHER COMPANY, Appellant,
v.
WINSTON LOVEDAY, Appellee,
Supreme Court of Tennessee.
May 18, 1970.
*142 Erma G. Greenwood, Knoxville, for appellant.
John C. Porter, Newport, for appellee.
OPINION
ERBY L. JENKINS, Special Justice.
This workmen's compensation case was brought in the Circuit Court of Cocke County. The trial judge granted the petitioner-employee, Winston Loveday, benefits for temporary total disability of $42.00 per week from October 7, 1968, to March 21, 1969, the date of the hearing, together with medical and hospital costs. It was further ordered that the defendant pay petitioner weekly benefits for so long as he was totally disabled from performing any work from which he could earn an income and for any residual disability to which he might be entitled; and the case was retained on the docket for future consideration.
On May 18, 1969, the petitioner filed his supplemental bill, and a further hearing was had on July 1st. The trial judge affirmed his prior opinion and gave an additional award of temporary total disability benefits from March 21, 1969, to April 1, 1969. Additionally, he found that the petitioner had a sixty (60%) percent permanent partial disability to the body as a whole, for which he awarded benefits from April 1, 1969. Defendants have appealed and assigned three assignments of error.
The record shows that on and prior to October 7, 1968, the day of the alleged accident, Loveday was employed by the defendant. He is an uneducated man, having a fifth grade education and is classified on the labor market as a common laborer.
On October 7, 1968, the employee was working in a ditch using a heavy pick. He testified that he "just started to hurting" while digging; that he told the foreman he had hurt his back, saying "my back is killing me," and the foreman acknowledged his complaint by saying "you'll just have to sleep on your side of the bed tonight." Loveday worked the remainder of the day, but with considerable difficulty. That night, on going home to the wife of his bosom, and remembering the admonition of his foreman, in his simple but all expressive manner, Loveday said "My back's killing me." She was compassionate and understood. He was unable to arise from the connubial couch the next morning without the aid of his companion, and following his foreman's suggestion, Loveday went to the hospital where he was under the care of Dr. Glenn Schultz for four days. After his discharge he continued to complain of back trouble. Dr. Schultz referred Loveday to an outstanding orthopedic surgeon who examined him and suggested that he return to work, and let his back hurt. This advice, like sulphur and molasses, is easier prescribed than taken. Loveday returned to work on November 12, 1968, worked approximately three hours and went home.
Loveday had a family to support and, out of necessity, approximately three weeks prior to the March 21st hearing, he acquired a job at a service station, where *143 he continued to work until June 1, 1969. His duties involved pumping gas and greasing cars, for which he was paid $35.00 per week. He worked seven nights a week, about six hours per night. Loveday testified that his back had been hurting ever since he started to work; and that he could not do any kind of manual labor without much pain and suffering.
The appellant-employer asserts three assignments of error:
1. There is no evidence to support the trial court's finding that the employee suffered an accidental injury arising out of and in the course of his employment.
2. There is no evidence to support the trial court's finding that the employee was temporarily totally disabled from October 8, 1968, to April 1, 1969.
3. There is no evidence to support the trial court's finding that the employee suffered a sixty (60%) percent permanent partial disability to the body as a whole.
In order to successfully pursue a claim for workmen's compensation benefits a petitioner must show, among other things, that he suffered an "injury by accident." T.C.A. Section 50-902 (d). There is no disputing the fact that Loveday suffered an injury. However, it is the employer's earnest contention that there is no evidence of an "accident."
An accidental injury is one which cannot be reasonably anticipated, is unexpected and is precipitated by unusual combinations of fortuitous circumstances. Kroger Company v. Johnson (1967), 221 Tenn. 649, 430 S.W.2d 130; Brown Shoe Company v. Reed (1961), 209 Tenn. 106, 350 S.W.2d 65. Even if the usual strain or exertion of work produces an unusual result, the resulting injury is by accident. Huey Brothers Lumber Co. v. Kirk (1962), 210 Tenn. 170, 357 S.W.2d 50; Nashville Pure Milk Company v. Rychen (1958), 204 Tenn. 575, 322 S.W.2d 432.
The testimony shows that in the morning of October 7th the employee was digging a ditch about one foot in depth, but had to remove himself therefrom when it became flooded with hot water. He was forced to stand at ground level in an awkward position in order to continue his digging. When asked if he knew the moment he hurt his back, Loveday responded: "Yeah, it was about 9:00 o'clock when I hurt my back, * * * well, I just started to hurting, I mean when I was digging. I told him (the foreman), I hurt my back, * * * and I said `my back's killing me.'"
From all the evidence adduced in the present case, we think it can fairly be said that there is material evidence to support a finding that Loveday suffered an "accidental" injury. The employee was engaged in the ordinary activity of digging a ditch when his back started hurting, as he said, "killing me." This fact was related to the foreman and was acknowledged as aforesaid. What more forceful notice could have been given the foreman by the employee who was digging with a pick in an awkward position then "my back is killing me." It is a mountain expression for pain, head, back or feet, that has been used so long that the mind of man runneth not to the contrary. To the sophisticated, he was saying "Sir, I have hurt my back and I am suffering the most excruciating physical pain." And what more eloquent acknowledgment could have been given by the foreman that the employee had sustained an injury to his back than to make that reply, so often used in the mountains, "you'll just have to sleep on your side of the bed tonight."
The only reasonable conclusion to be drawn from the evidence is that the usual strain of ditch digging produced the unexpected result experienced by the employee in the instant case.
The second assignment of error questions the trial judge's finding that the employee was temporarily totally disabled *144 from October 8, 1968, to April 1, 1969. Since the extent of disability in a compensation case is a question of fact, if the trial court's findings are supported by any material evidence they are conclusive upon this Court. Armstrong v. Spears (1965), 216 Tenn. 643, 393 S.W.2d 729; Fidelity & Casualty Co. v. Treadwell (1963), 212 Tenn. 1, 367 S.W.2d 470.
The evidence concerning the extent of Loveday's temporary disability consists of Loveday's testimony, the testimony of Dr. Schultz and a report by an outstanding orthopedic surgeon. Loveday testified that his pain never ceased since the time he was hurt; that he attempted to return to work on November 11th, but the pain was so bad he could work only three hours; that he cannot bend over without his back hurting; and that he cannot perform any kind of manual labor without a lot of pain and suffering. Dr. Schultz testified that he advised Loveday to return to work on November 11th, but that he came back the succeeding day with complaints of back pain; that the ex-rays taken were negative. However, Dr. Schultz did state that he had "to go according to a man's complaints, and according to his (Loveday's) complaints he is not able to work." The orthopedist was of the opinion that Loveday could return to work on November 4th.
In Gluck Brothers, Inc. v. Coffey (1968) Tenn. 431 S.W.2d 756, this Court ruled that even though the employee's unsupported testimony may be made the basis of an award of permanent partial disability, it cannot be made the basis for a more or less indefinite award of temporary total disability. The Court felt that the employee's testimony was not accepted at face value by the trial judge; for if it had been so accepted, he would have had to order a continuation of temporary total disability benefits or have ordered permanent total. Instead, he terminated the benefits for temporary total as of the date his order was entered.
The ruling in Gluck Brothers, supra, certainly has no applicability to the present case. Here, there is evidence as to the extent of Loveday's disability other than the testimony of Loveday himself. Dr. Schultz unequivocally stated that Loveday was not able to work. Thus, the material evidence rule is satisfied and we are bound by the trial judge's findings regarding temporary total disability benefits.
We do feel, however, that the trial judge was in error in awarding benefits for temporary total disability up to the period of April 1, 1969. "The period of temporary total disability is * * * the time during which the workman is wholly disabled and unable by reason of his injury to work." Redmond v. McMinn County (1962), 209 Tenn. 463, 354 S.W.2d 435. Even though it was an economic necessity of Loveday to work in order to support his family and although he was in pain while working, nevertheless, when he did start working he could no longer be considered "wholly disabled." Thus, the trial judge erred in awarding Loveday benefits for temporary total disability during this period in which he was working. The benefits should have terminated on or about March 1, 1969.
The third and final assignment of error is that there is no evidence to support the trial judge's finding of sixty (60%) percent permanent partial disability.
The employee testified that he could not do any kind of manual labor without a lot of pain and suffering; and that he could not do "a half a man's work" since he hurt his back. Dr. Schultz testified that according to Loveday's complaints, he was not able to work; that Loveday "isn't the nervous type that runs in the office." The orthopedist's records reveal that he found no evidence of residual disability attributable to Loveday's injury of October 7, 1968, and that he could perform regular work.
The trial judge was not bound to accept the doctors' opinions concerning the *145 extent of the disability, but was entitled to determine from all the evidence, expert and nonexpert, the degree thereof. Fidelity & Casualty Co. of New York v. Treadwell, supra; Bush Bros. & Company v. Williams (1954), 197 Tenn. 334, 273 S.W.2d 137.
In regard to predicating an award upon the testimony of the injured employee concerning the extent of his disability, this Court said in Fidelity & Casualty Co. of New York v. Treadwell, supra:
"As to this testimony of the man himself he stated that he was totally disabled from doing manual labor * * * Let us go back thirty odd years to Black Diamond Collieries v. Gibbs, 161 Tenn. 413, 32 S.W.2d 1041, wherein this Court affirmed the trial court in finding a fifty per cent disability due to the loss of an eye which was based entirely upon the testimony of the man himself that he had fifty per cent disability on account of the loss of this eye. * * * Such testimony is for the trier of facts to determine as to the amount of this disability, and it is not for this Court to determine the weight to be given such testimony.
* * * * * * *
"We have * * * over the years followed the reasoning of * * * Atlantic Steel Co. v. McLarty, 74 Ga. App. 300, 39 S.E.2d 733, 735, to the effect that: `* * * the testimony of an injured person as to the extent of his injuries may be believed in preference to the opinions of `a whole college of physicians' testifying to the contrary,'"
Accordingly, we think there is material evidence to support the findings of the trial judge, for as stated, in addition to the worker himself, Dr. Schultz testified that, in effect Loveday was not malingering and that if he said that he was unable to work and was in pain, he believed him. We must bear in mind that Dr. Schultz was the worker's family doctor. The trial courts, in cases of this nature, do and should, give great weight to the testimony of the family doctor. He ordinarily is not prejudiced for or against the patient. He is usually intimately acquainted with the patient, and knows his history, his complaints, his tendency to exaggerate or to minimize his aches and pains. The family doctor is not only a doctor, he is an adviser, a psychoanalyst, a psychiatrist and a physiologist, all wrapped up in one. He knows the patients who are sick when they claim to be sick and heeds their call. Healing the sick is his profession. He does not take in swearing for a living. Unfortunately the family doctors are becoming too few, and the medical profession and society as a whole are the poorer for it.
Taking into consideration the testimony of the worker himself, Dr. Schultz, the family doctor, we feel that there is material evidence to sustain the findings of the trial court and the assignments of error are overruled and the judgment below will be modified so as to award Loveday permanent partial disability for 240 weeks, dating from March 1, 1969, rather than April 1, 1969.
DYER, C.J., and CRESON, HUMPHREYS, and McCANLESS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1281401/ | 763 P.2d 673 (1988)
Thomas AINSWORTH, Appellant,
v.
COMBINED INSURANCE COMPANY OF AMERICA, Respondent.
No. 17625.
Supreme Court of Nevada.
October 26, 1988.
Peter Chase Neumann, Bradley & Drendel, Reno, for appellant.
Mortimer, Sourwine, Mousel, Sloane & Knobel, Reno, Lionel, Sawyer & Collins and M. Kristina Pickering, Las Vegas, for respondent.
Lambrose, FitzSimmons & Perkins, Carson City, for amicus curiae.
OPINION
GUNDERSON, Chief Justice.
On January 14, 1982, Thomas Ainsworth was a healthy, working man who also served his community as a member of the Sparks City Council. His only health concerns involved occasional "dizzy spells," which he had experienced at irregular intervals over a period of several years. Within twenty-four hours, Thomas Ainsworth's life was shattered. Because of an accident which occurred during the administration of an angiogram, Thomas suffered a stroke. He immediately went into a coma, which continued for seven days. *674 He was still 100% disabled after six months. The stroke did not kill him, but some of its effects are permanent and devastating. He will never walk or talk as well as he previously did.
While Thomas was fighting for his life, his wife, Evelyn Ainsworth, was fighting a different battle. She attempted to collect benefits for Thomas under two accident policies issued by the respondent, Combined Insurance Company of America (Combined). The Ainsworths had been advised by agents of Combined that their accident policies would protect them in the event of "any conceivable accident." Relying on this promise, and the advice of Thomas' physician, Evelyn sent in an accident claim.
The insurance adjuster who received the claim denied it immediately, without any investigation whatsoever, because the doctor's report hypothesized that the stroke may have been caused by the disruption of atheromatous plaque during the angiogram. The adjuster focused upon this one sentence in the report, and concluded that the development of arterial plaque had contributed to Thomas' stroke. Since the policy excluded any accident which was contributed to by disease, Combined refused to pay benefits under the policies. These benefits amounted to $9,600.
Evelyn was distressed by the denial, but decided to resubmit the claim on advice from her nephew, who was a physician, and from the Combined salesman who came by in June to collect the next biannual premium. Combined's salesman discussed the Ainsworths' financial condition with Evelyn, and encouraged her to resubmit her claim. He even promised to put a hold on the premium check while the matter was cleared up.
The claim was resubmitted, along with a doctor's report which corrected the earlier hypothesis. The doctor stated that the results of the angiogram clearly showed that Thomas' blood vessels were normal and were not built up with atheromatous plaque. He affirmed that the stroke was entirely accidental, and could have resulted from numerous causes.
At this time, Combined sent its file to its medical consultant, Dr. Goldfinger. The consultant was provided, however, only with the first doctor's report and records from Washoe Medical Center, where Thomas had been transferred after the accident. The consultant's one-line report stated that the stroke was the result of disease. After receiving the consultant's report, Combined again denied the claim, without evaluating the second doctor's report or the record summaries from the Veteran's Administration Hospital, where the accident occurred. Combined never made further inquiry into the claim, never telephoned or wrote to the doctors, and never obtained a copy of the operating report or the angiogram.
In November, 1982, Evelyn submitted Thomas' claim for the third time, accompanied by yet another doctor's report explaining that Thomas had been the victim of an accident. By this time, the claim file included more records from the V.A. Hospital. The file was sent to Dr. Goldfinger for a second evaluation, but on the same day Combined sent Evelyn a third denial letter. Two days later, Dr. Goldfinger again recommended denying the claim, because the angiogram had been ordered for the purpose of diagnosing Thomas' dizzy spells. Thus, according to Goldfinger, the loss was not "purely accidental."
In a further effort to obtain the badlyneeded policy benefits, Evelyn submitted the claim for the fourth time in February, 1983. With her claim she included a letter from her husband's doctor which confirmed that the angiogram "revealed no pre-existing vascular disease." In response to this claim, Combined offered to "compromise" by paying the Ainsworths $1,940 in exchange for a release of all claims. Evelyn understandably refused this offer, and wrote a fifth letter, requesting payment of the full benefits under the two policies, a total of $9,600. Combined still refused to pay.
The Ainsworths then sued Combined, seeking the payment of benefits and compensatory and punitive damages. The jury awarded the benefits, $200,000 in compensatory damages, and $5,939,500 in punitive *675 damages. Combined moved for a judgment notwithstanding the verdict and for a new trial. The district court denied the latter motion, but granted the former, totally eliminating the award of punitive damages. For the reasons expressed in this opinion, we reverse the judgment of the district court and reinstate the jury's verdict. The denial of the motion for new trial is affirmed.
SUBSTANTIAL EVIDENCE
The function of this court in evaluating a grant of judgment notwithstanding the verdict is to determine whether the jury's verdict is supported by substantial evidence. The party favored by a verdict is entitled to have the evidence interpreted in the manner most favorable to him, and gains the benefit of every inference of fact fairly deducible from the evidence. Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 686 P.2d 925 (1984); Dudley v. Prima, 84 Nev. 549, 445 P.2d 31 (1968). Judgment notwithstanding the verdict is inappropriate when there is any substantial evidence to support that verdict. Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984).
A jury may award punitive damages where the defendant has been guilty of fraud, malice, or oppression. NRS 42.010. We conclude that the punitive damages award in this case is supported by substantial evidence of oppression on the part of the defendant, Combined. Therefore, we reverse the decision of the district court.
Oppression has been defined as "a conscious disregard for the rights of others which constitute[s] an act of subjecting plaintiffs to cruel and unjust hardship." Roth v. Shell Oil Company, 185 Cal. App.2d 676, 682, 8 Cal. Rptr. 514 (1960); accord Jeep Corp. v. Murray, 101 Nev. 640, 650, 708 P.2d 297, 304 (1985). Our decisions have recognized that such a "conscious disregard" may support an award of punitive damages. Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976); Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). The Ainsworths presented substantial evidence that Combined had consciously and deliberately ignored their rights to the payment of benefits.
The initial claim was denied immediately without any investigation, although Combined claimed in its letter that it had been given "careful consideration." In fact, Combined made no independent inquiry concerning Thomas' accident, whether by telephone or letter. The sum total of its investigative effort was to send a $5 check to each of two hospitals, accompanied by a records request form. This effort was clearly inadequate to support Combined's assertion that it handled the claim properly. Furthermore, we are not impressed by Combined's alleged lack of knowledge concerning the Ainsworths' precarious finances. From the outset, Combined knew that Thomas Ainsworth was a 59-year old male who had suffered a stroke and was comatose for seven days. This information was more than adequate to give Combined notice that its insured, who had paid premiums for thirteen years, had an unqualified and urgent need for the benefits of the accident policies. Additionally, five times within eighteen months, the insured's wife requested payment, indicating clearly that the policy benefits of $9,600 were urgently needed.
Combined's cumulative response to the next three claim submissions was also sadly inadequate. In spite of the seriousness of the accident, Combined failed to obtain accurate and complete medical records. Although it used the services of a medical consultant, the consultant was not provided with adequate information. When Evelyn sent additional medical reports, these were initially ignored because Combined's employees felt they merely repeated the statements contained in the initial report. After further consideration of the reports and a second outside consultation, Combined continued to deny the claim simply because the angiogram was ordered as a diagnostic tool. We fail to understand why an accident cannot occur during the administration of a medical test. The stroke was an unplanned and unexpected result of the angiogram. The fact that Thomas underwent *676 the procedure on the orders of his doctor is irrelevant. If Thomas had been hit by a truck on his way to the doctor's office, the accident would not be the result of a disease, in spite of the fact that Thomas was engaged in seeking medical treatment at the time.
Combined's obstinate and unjustified refusal to pay, in our opinion, constitutes oppression as contemplated by the statute. The evidence establishes that the Ainsworths were in desperate need of funds, and that Combined had reason to know of their dire circumstances. The record clearly supports an inference that Combined consciously disregarded the rights of its insured by clinging to its restrictive definition of "accident" as used in its policy.
This intransigent resistance is remarkable in light of the written inducements offered to obtain renewal premiums from Thomas and Evelyn Ainsworth. As stated above, they had carried insurance with Combined since 1969. At trial, documents were introduced which showed that Combined sent "good news letters" to its insureds, assuring them they were covered in the event of "any conceivable accident," incurred in "any activity whatsoever." When the salesman arrived to collect the premiums, he reminded the Ainsworths of the benefits they were receiving, as explained in the news letters. In fact, the salesman's manual defined "accident" simply as "an event that is unforseen [sic.] and unexpected." Given such information, the Ainsworths could reasonably expect that an unforeseeable, unexpected accident which occurred as a result of a medical test would be covered by their policy. See National Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 682 P.2d 1380 (1984); Catania v. State Farm Life Ins. Co., 95 Nev. 532, 598 P.2d 631 (1979).
The relationship of an insured to an insurer is one of special confidence. A consumer buys insurance for security, protection, and peace of mind. Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986) (en banc). The insurer is under a duty to negotiate with its insureds in good faith and to deal with them fairly.[1] The insurer may not rely on its own ambiguous contract as the sole basis for denial. Rawlings, supra, 726 P.2d at 572, see also Sullivan v. Dairyland Ins. Co., 98 Nev. 364, 649 P.2d 1357 (1982). To allow such conduct would only encourage ambiguous contracts. Indeed, our law has held that any ambiguity will be construed against the insurance company, and rightly so. N. American Life & Cas. Co. v. Gingrich, 91 Nev. 491, 538 P.2d 163 (1975). Negotiations between a wealthy, sophisticated commercial venturer and a naive consumer cannot be of equal strength. For that reason, the law attempts to render an ambiguous contract fair by making the drafter responsible for ambiguity. The insurance industry is heavily regulated by the state, because it is an important public trust. Along with the profits obtained from insurance premiums, insurers must accept the obligations of good faith and fair dealing imposed by law.
Furthermore, even if the evidence is not sufficient to prove that Combined acted oppressively in avoiding the payment of benefits, we note that in the past we have found malice in fact when the defendant has engaged in wilful and intentional conduct, done in reckless disregard of its possible results. Nevada Cement, supra, 89 Nev. at 451, 514 P.2d at 1183; Nevada National Bank v. Huff, 94 Nev. 506, 582 P.2d 364 (1978). Combined's conduct was neither accidental nor simply negligent. In spite of five requests made in eighteen months, in spite of the serious nature of its insured's accident, it conducted no independent investigation and utterly failed to evaluate fairly the medical evidence it possessed in its claim file.
Therefore, we conclude that the jury's award of punitive damages was supported by substantial evidence.
*677 PUNITIVE DAMAGES
Traditionally this court has held that the amount of a punitive damages award was subjective, and therefore best left to the jury's determination. Phillips v. Lynch, 101 Nev. 311, 704 P.2d 1083 (1985); Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962). Recently we have attempted to define the allowable limits of punitive damages in a more objective fashion. Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987). Ace Truck described several factors which contribute to an appellate evaluation of a punitive damages award. We conclude, however, that none of these factors prevent us from affirming the award in this case.
First, we note that the financial position of the defendant is still relevant to the determination of the amount of the punitive damages award. The wealth of a defendant is directly relevant to the size of an award, which is meant to deter the defendant from repeating his misconduct as well as punish him for his past behavior. See Midwest Supply, Inc. v. Waters, 89 Nev. 210, 510 P.2d 876 (1973). We note that the award in this case, while large, amounts to only 5% of Combined's 1985 net operating gain. The award constitutes only .4% of Combined's 1985 total assets. Since we find its business conduct totally unacceptable, we are reluctant to disturb the jury's determination that a sizable award is necessary to deter Combined from pursuing its inappropriate methods.
Second, we conclude that the culpability and blameworthiness of Combined is considerable, with few mitigating circumstances. Despite repeated requests by the insured, all of which were accompanied by medical reports, Combined failed to investigate the claim properly. It refused to pay on the basis of one inaccuracy in the initial report, an inaccuracy which was corrected by three later reports. Combined must take full responsibility for the handling of the claim, and its own obstinate refusal to take more appropriate action.
Third, we look to the vulnerability of, and injury suffered by, the offended party. Thomas Ainsworth was in a highly vulnerable position as the result of the devastating consequences of his stroke. Unable to communicate effectively, he depended on the efforts of his wife, a woman who was inexperienced in handling business matters. Sufficient evidence was produced at trial to show that Thomas was permanently impaired in his speaking ability by the lack of crucial funds to pay for speech therapy at the proper time during his recovery. Thomas' injuries prompted the jury to make a substantial award of compensatory damages. These injuries also support an award of punitive damages.
Another factor is the offensiveness of the punished conduct when compared to societal values of justice and propriety. As discussed above, insurance is a special kind of commercial activity. The insurer is under a duty to treat its policyholders fairly. The obstinate, unjustified refusal to pay a legitimate claim is offensive to society, precisely because the consumer pays for insurance to gain security and peace of mind.
Finally, we must evaluate the means judged necessary to deter future misconduct. Combined is a very large, wealthy insurance company which sends its agents out among the innocent citizenry, selling policies door-to-door. Its policyholders are not sophisticated commercial investors; they are ordinary citizens who hope to protect themselves from future calamities. If Combined is to be deterred from its past course of conduct, this can only be done through an assessment of punitive damages. In order to accomplish this purpose, the amount awarded must be sufficient to cause the defendant real concern. We cannot say that an assessment of .4% of the respondent's total assets is unwarranted under the circumstances of this case. The award does not shock our judicial conscience, and it is not clearly excessive.[2]Hale v. Riverboat Casino, Inc., 100 Nev. 299, 682 P.2d 190 (1984).
*678 Other contentions have been considered and are deemed to be totally without merit. We therefore reinstate the jury's verdict. We reverse the grant of judgment notwithstanding the verdict, and affirm the denial of respondent's motion for a new trial.
STEFFEN, YOUNG, SPRINGER and MOWBRAY, JJ., concur.
NOTES
[1] The covenant of good faith and fair dealing is implied into every commercial contract. NRS 104.1203. In Nevada, insurance contracts are directly regulated by statutes which prohibit deceptive advertising and other unfair trade practices. See NRS 686A.020; 686A.030(1); 686A.040; 686A.310(1)(b), (c), (e), and (f).
[2] Appellant is not entitled to interest on the punitive damages award. See Ramada Inns v. Sharp, 101 Nev. 824, 711 P.2d 1 (1985). We understand that the policy benefits and compensatory damages have already been paid. Therefore, no interest is awarded by this decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/731859/ | 103 F.3d 131
NOTICE: Sixth Circuit Rule 24(c) 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 Sixth Circuit.Carlo VARTINELLI, Plaintiff-Appellant,v.Craig HUTCHINSON, M.D. and Paul S. Kenyon, M.D., Defendants-Appellees.
No. 95-2009.
United States Court of Appeals, Sixth Circuit.
Dec. 4, 1996.
Before: MERRITT, KENNEDY, and GUY, Circuit Judges.
ORDER
1
Carlo Vartinelli, a pro se Michigan prisoner, appeals a district court judgment dismissing his civil rights suit filed pursuant to 42 U.S.C. §§ 1983 and 1988. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Seeking monetary relief, Vartinelli sued two prison physicians (Drs. Hutchinson and Kenyon) in their individual capacity. He asserted that: 1) the defendants had been deliberately indifferent to his medical needs by refusing to treat his back pain; and 2) the defendants refused to treat him in retaliation for exercising his right to redress grievances. The magistrate judge recommended granting summary judgment to Dr. Hutchinson on the first claim, but not the second. Although Vartinelli did not file objections, the district court construed his reply to Dr. Hutchinson's objections as his objections. In a separate report, the magistrate judge also recommended granting summary judgment to Dr. Kenyon on the first claim, but stated that Vartinelli would need to file an amended complaint to survive dismissal of his second claim. Vartinelli then filed timely objections to the report, as well as an amended complaint in which he reasserted his claims against Dr. Kenyon. The district court thereafter granted summary judgment to the defendants on both claims.
3
In his timely appeal, Vartinelli reasserts his same claims. He also requests oral argument and appointment of counsel.
4
Upon review, we conclude that the district court properly granted summary judgment in favor of the defendants. Fed.R.Civ.P. 56(c); accord Harrow Prods., Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1019 (6th Cir.1995). Vartinelli's first claim is without merit as there is no evidence that the defendants intentionally denied him treatment for his back or were otherwise deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). To the extent that he alleges that Dr. Kenyon misdiagnosed him, his claim fails because such allegations of negligence do not state a cause of action under the Eighth Amendment. See id. at 106. Likewise, Vartinelli's retaliation claim must fail as there is no evidence of the alleged retaliatory action, nor of any intent to retaliate. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Cale v. Johnson, 861 F.2d 943, 950 (6th Cir.1988).
5
Accordingly, Vartinelli's requests for oral argument and appointment of counsel are denied, and the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1563433/ | 16 So.3d 41 (2009)
Victor PERRYMAN, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-KA-01670-COA.
Court of Appeals of Mississippi.
March 17, 2009.
Rehearing Denied June 23, 2009.
Certiorari Denied August 27, 2009.
*42 George T. Holmes, Jackson, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before MYERS, P.J., IRVING, BARNES and ROBERTS, JJ.
IRVING, J., for the Court.
¶ 1. Victor Perryman was convicted in the Copiah County Circuit Court of carjacking *43 and aggravated assault. He was sentenced as a habitual offender to serve thirty years on the carjacking charge and twenty years on the aggravated assault charge, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections. Aggrieved, Perryman appeals and asserts: (1) that the indictment was fatally defective for failing to state a statutory element of carjacking, (2) that the jury instructions lacked a statutory element of carjacking, (3) that his defense counsel was ineffective for requesting an erroneous elemental jury instruction for the carjacking charge, (4) that the sentence for carjacking was illegal, and (5) that the verdict on the aggravated assault charge was contrary to the weight of evidence.
¶ 2. We affirm Perryman's conviction on both counts and his sentence in count two. However, we modify the sentencing order of the circuit court as to count one to reflect that Perry is fined $5,000 and sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with both sentences to run consecutively.
FACTS
¶ 3. On March 22, 2007, Latoya Dente, an employee with the Hinds County Sheriff's Department, returned to her home in Copiah County around 6:00 a.m. to retrieve her duty belt. After Dente pulled into her driveway and got out of her truck, she heard Perryman call her name. She recognized him from the neighborhood. Perryman introduced himself to Dente and asked her if she had any job applications on hand for the sheriff's department. She replied that she did not but informed Perryman that she would leave an application for him at his sister's apartment, which was located in the Cumberland Apartments.
¶ 4. After Dente explained to Perryman that she needed to get to work, he left. She went into her home, retrieved her duty belt and radio, and got back in her truck. Just as she pulled on to the road, her compact discs fell to the floor. As she slowed down to retrieve them, Perryman opened her door and jumped in on top of her. The two tussled, and Perryman cut Dente's throat with a sharp metal object. Dente managed to get out of her vehicle, and Perryman took off in it. As she watched her truck being driven away, Dente remembered that she was wearing her duty belt. She took her gun out and fired shots at the truck. She hit one of the tires, causing it to go flat. Perryman lost control of the vehicle, struck a few mailboxes, and ran off the road into a ditch. However, he managed to get the truck back on the road and continued to drive away. At this point, Dente noticed that the truck had begun to make a very distinct and loud noise. She watched her truck travel down the street and turn toward the Cumberland Apartments.[1]
¶ 5. Although injured, Dente managed to walk to her aunt's house to call the police and to seek medical attention. While Dente was calling the police, she and her aunt heard the distinct loud noise that Dente had heard earlier. They had a clear view of the Cumberland Apartments from her aunt's house, and both of them saw the top of Dente's truck at the apartment complex. A short while after the loud noise had ceased, Dente and her aunt saw Perryman walking down a path. At that time he had on different clothes. Next, they saw Perryman's cousin pull up to Perryman's sister's apartment and watched Perryman and his cousin walk into the apartment. An eyewitness that lived in the Cumberland Apartments testified that she *44 saw Perryman get out of the truck, take off his shirt, and wipe down the steering wheel and the doors.
¶ 6. When the police arrived at Dente's aunt's house, they took a statement from Dente and then called for an ambulance to transport her to the hospital for treatment of her neck injury. Before the ambulance arrived, the police were able to apprehend Perryman. Dente positively identified him at the scene and later at the police station.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶ 7. Perryman's first three contentions of error are: (1) that the indictment was fatally defective for failing to state a statutory element of carjacking, (2) that the jury instruction lacked a statutory element of carjacking, and (3) that his defense counsel was ineffective for requesting an erroneous elemental jury instruction for carjacking. Specifically, Perryman asserts that the indictment and the jury instruction do not contain all of the statutory elements of carjacking. It should be noted that the pertinent language in the indictment and in the jury instruction is almost identical. Each of the above contentions of error center around one questionwhether the language used in the indictment and in the jury instruction is sufficient to cover all of the statutory elements of carjacking. We find that it is.
¶ 8. It is well settled that "[t]he question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by [the appellate court]." Spears v. State, 942 So.2d 772, 773(¶ 5) (Miss.2006) (quoting Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (superseded by statute)). Questions of law are reviewed de novo. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990) (citing UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 754 (Miss.1987)).
¶ 9. In regard to jury instructions, it is well settled that "[w]e will not find reversible error `where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.'" Chinn v. State, 958 So.2d 1223, 1225(¶ 12) (Miss. 2007) (quoting Adkins v. Sanders, 871 So.2d 732, 736(¶ 9) (Miss.2004)). Further, the failure to properly instruct the jury on every essential element of the crime denies a defendant due process. Shaffer v. State, 740 So.2d 273, 282(¶ 31) (Miss.1998).
¶ 10. The language of Perryman's indictment states, in pertinent part, that:
Victory [sic] Perryman ... on or about the 22nd day of [March], 2007, in Copiah County, Mississippi, and within the jurisdiction of this court did wilfully, unlawfully, feloniously and knowingly by force or violence take actual possession of one [Honda] Passport from Latoya Dent [sic], the actual owner thereof.
¶ 11. The language of jury instruction number four that was given at Perryman's trial states in pertinent part:
If you, the jury find from the evidence in this case beyond a reasonable doubt that:
1. Victor Perryman, on or about the March 22, 2007, in Copiah County, Mississippi;
2. Did knowingly or recklessly, by force or violence
3. Take actual possession of a [Honda] Passport from Latoya Dente, the actual owner thereof....
¶ 12. Mississippi Code Annotated section 97-3-117(1) (Rev.2006) provides:
Whoever shall knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure *45 or snatching, or by putting in fear or attempting to do so, or by any other means shall take a motor vehicle from another person's immediate actual possession shall be guilty of carjacking.
¶ 13. Perryman points out that his indictment and jury instruction lacked the specific statutory language "from another person's immediate actual possession." He argues that because of this missing language, he was not put on notice of the charge of carjacking; rather, he was put on notice for the crime of larceny. Perryman further argues that the indictment and the jury instruction are ambiguous because they can be read to suggest that either violent force was used against the vehicle or that violent force was used against Dente.
¶ 14. In Williams v. State, 772 So.2d 406, 407(¶ 1) (Miss.Ct.App.2000), the defendant was convicted of armed carjacking. On appeal, he argued that the indictment was defective and, for several reasons, did not put him on notice of armed carjacking. Id. First, he argued that the indictment did not follow the language used to define the elements of armed carjacking in that "it did not contain the language `or by any other means shall take a motor vehicle from another person's immediate actual possession.'" Id. at 408(¶ 7) (emphasis added). Second, he argued that the indictment was defective because it did not contain "the words a `dangerous and deadly weapon capable of inflicting serious bodily harm.'" Id. This Court agreed that the indictment failed to charge armed carjacking. Id. at (¶ 10). However, we held that the indictment did charge carjacking. The relevant portion of the indictment in Williams reads:
did recklessly and knowingly by force or violence, by the exhibition of a knife, take a motor vehicle from Farrah Goodman.
Id.
¶ 15. As stated, Perryman's indictment contains the following language:
did wilfully, unlawfully, feloniously and knowingly by force or violence take actual possession of one [Honda] Passport from Latoya Dent [sic], the actual owner thereof.
Here, Perryman, as did the defendant in Williams, argues that his indictment is defective because it does not contain the language that the vehicle was taken "from another person's immediate possession." Although the technical words "from a person's immediate actual possession" were not used in the Williams indictment, we held that the language "from Farrah Goodman" is equivalent to the statutory language "from a person's immediate actual possession." Id. at 409(¶ 13). Therefore, we find that the language in Perryman's indictment "from Latoya Dent[e]" is also equivalent to the statutory language "from another person's immediate actual possession."
¶ 16. As mentioned above, Perryman's first three contentions of error center around the sufficiency of the language in the indictment and jury instruction. Further, in his third contention of error, Perryman asserts that his defense counsel was ineffective for submitting the jury instruction. However, we find the language sufficient to include all of the essential statutory elements of the crime of carjacking. Therefore, we find that these three contentions of error are without merit.
¶ 17. Next, Perryman contends that his thirty-year sentence for carjacking exceeds the maximum statutory sentence and is, therefore, illegal. We agree. "Sentencing is within the complete discretion of the trial court and not subject to *46 appellate review if it is within the limits prescribed by statute." Isom v. State, 928 So.2d 840, 850(¶ 41) (Miss.2006) (quoting Wall v. State, 718 So.2d 1107, 1114(¶ 29) (Miss.1998)). "A person who is convicted of carjacking shall be fined not more than Five Thousand Dollars ($5,000.00) and be committed to the custody of the State Department of Corrections for not more than fifteen (15) years." Miss.Code Ann. § 97-3-117(1)(a) (Rev.2006) (emphasis added).
¶ 18. The right to be free from an illegal sentence has been found to be a fundamental right of the defendant. Sneed v. State, 722 So.2d 1255, 1257(¶ 11) (Miss.1998). Since Perryman was convicted as a habitual offender of carjacking, the trial judge was required to sentence him "to the maximum term of imprisonment prescribed for such felony." Miss.Code Ann. § 99-19-81 (Rev.2007). As stated, the maximum sentence for carjacking is a fine of $5,000 and fifteen years in the custody of the Mississippi Department of Corrections. While sentencing is the prerogative of our trial courts, we see no reason in this case to remand for resentencing since the trial court has no discretion to sentence Perryman to anything less than the maximum sentence allowed by statute. Therefore, in the interest of judicial economy, we modify the sentencing order of the circuit court to reflect that, for Perryman's conviction of count one, carjacking, he is fined $5,000 and sentenced to fifteen years in the custody of the Mississippi Department of Corrections in accordance with the provisions of section 97-3-117(1)(a) and section 99-19-81.
¶ 19. Lastly, Perryman contends that the verdict for the aggravated assault charge is contrary to the weight of the evidence. He points out that the aggravated assault charge detailed the usage of a knife but that the knife was not produced at trial. Accordingly, Perryman argues that the charge should be reduced to simple assault.
¶ 20. When determining whether a jury's verdict is against the overwhelming weight of the evidence, "we must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss. 2004) (citing Hubbard v. State, 819 So.2d 1192, 1196(¶ 11) (Miss.2001)). Mississippi Code Annotated section 97-3-7(2) (Supp. 2008), which defines aggravated assault, provides in pertinent part:
A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....
¶ 21. When a statute requires use of a deadly weapon, the failure of the State to produce the weapon is not fatal to the State's case. Moore v. State, 933 So.2d 910, 921(¶ 38) (Miss.2006). In Moore, the defendant was charged with aggravated assault and argued that the jury's verdict was against the overwhelming weight of evidence because the State never offered a knife or other deadly weapon into evidence. Id. at (¶ 37). The court found this argument unpersuasive and held that "the State was not required to, produce the actual tool, and the jury was free to consider its absence when weighing the evidence and making its determination." Id. at (¶ 38). On review, the court found that the victim's testimony about the stabbing and photographs of the victim's neck injuries were sufficient to support the verdict *47 and that "[t]he trial court did not abuse its discretion by failing to grant Moore's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial." Id. at (¶ 39).
¶ 22. Similar to the victim in Moore, Dente testified about the stabbing and that the object she was stabbed with was "shiny and sharp." She also showed the jury the scars on her neck, which she sustained in the attack. We find that there was sufficient evidence to support the aggravated assault conviction and that the trial court did not abuse its discretion in refusing to grant a new trial. Therefore, this contention of error is without merit.
¶ 23. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT OF CONVICTION OF COUNT ONE, CARJACKING, AND COUNT TWO, AGGRAVATED ASSAULT, IS AFFIRMED AND MODIFIED TO REFLECT SENTENCES AS A HABITUAL OFFENDER OF FIFTEEN YEARS AND A $5,000 FINE FOR COUNT ONE AND TWENTY YEARS FOR COUNT TWO, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
NOTES
[1] The Cumberland Apartments are located just behind Dente's home. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563444/ | 16 So.3d 1289 (2009)
STATE of Louisiana, Appellee
v.
Robert L. MORGAN, Appellant.
No. 44,461-KA.
Court of Appeal of Louisiana, Second Circuit.
August 19, 2009.
*1290 Louisiana Appellate Project by: James E. Beal, Jonesboro, for Appellant.
Jerry L. Jones, District Attorney, Shirley M. Wilson Davis, Assistant District Attorney, for Appellee.
Before WILLIAMS, STEWART and PEATROSS, JJ.
STEWART, J.
The defendant, Robert L. Morgan, was convicted of purse snatching and received the maximum sentence of 20 years at hard labor. He filed and was granted an "out of time" appeal, by which he seeks review of his sentence. Finding no abuse of discretion by the trial judge, we affirm.
FACTS
On June 6, 2006, the defendant's mother, Barbara Morgan, called the Ouachita Parish Sheriff's Office to report a missing vehicle belonging to her companion, Hardy Wilson. The vehicle was a maroon 2000 GMC Sierra truck with license plate number V667890.
Around 11:00 that evening, the defendant approached Summer Camargo in the parking lot of a Wal-Mart and asked to use her cell phone. She allowed him to do so and observed him attempt to make calls. When he handed the phone back to her, he asked if she thought anyone would hear her scream. He then grabbed her purse and threatened to hit her if she did not give it to him. The purse strap broke, and the defendant ran off with the purse to his vehicle, a maroon 2000 GMC truck. Camargo called the police. She described the vehicle and identified the license plate number as V667890.
Shortly after, a state trooper saw a truck matching the description, began following it, and called for backup. The defendant led law enforcement on a high speed chase for over 20 minutes in the Monroe area that ended when he crashed *1291 into Bayou DeSiard. The defendant eluded capture by hiding, but he was located the next day and arrested after attempting to flee on foot. The contents of Ms. Camargo's purse were found in the truck.
The defendant was charged by bill of information with unauthorized use of a motor vehicle, aggravated flight from an officer, and purse snatching. The bill also included a theft charge, which the state did not pursue. The defendant was tried before a jury on the other three charges. The jury found the defendant guilty as charged of purse snatching and not guilty on the remaining charges. After reviewing a pre-sentence investigation ("PSI") report and the facts of the incident, the trial judge imposed the maximum sentence of imprisonment at hard labor for 20 years. The defendant was given credit for time served, but the sentence is to run consecutively to any other being served.
The defendant's "out of time" motion for reconsideration of his sentence was denied. In this appeal, he argues that his sentence is excessive and that the trial judge improperly considered the facts of the charges for which he was found not guilty.
DISCUSSION
The defendant's failure to timely file a La. C. Cr. P. art. 881.1 motion to reconsider sentence limits our review to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993). Thus, we must determine whether the sentence of 20 years' imprisonment at hard labor is illegal, grossly disproportionate to the severity of the offense so as to be shocking to the sense of justice, or nothing more than a needless infliction of pain and suffering. State v. Lobato, 603 So.2d 739 (La. 1992); State v. Livingston, 39,390 (La.App. 2d Cir.4/6/05), 899 So.2d 733.
A sentence that is within the statutory limits is subject to review for constitutional excessiveness. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. However, a trial judge has broad discretion when imposing a sentence, and the trial court's sentence is not to be set aside on appeal absent a manifest abuse of discretion. Id. The issue on review is not whether another sentence is more appropriate, but whether the trial court abused its sentencing discretion. Id.
In sentencing this defendant, the trial judge considered the facts related to the offense, the defendant's extensive criminal history and personal background, as well as the guidelines of La. C. Cr. P. art. 894.1. The defendant had five prior felony convictions and an extensive history of misdemeanor violations. As noted by the trial judge, the defendant chose a life of criminal activity and failed to respond to his prior incarcerations and probation by modifying his behavior. The defendant dropped out of school after completing eighth grade. He obtained no additional education or training, and he had a limited work history. He became a user of cocaine and marijuana. The trial judge observed that the defendant's criminal conduct and actions exhibit "an utter disregard for the law."
The trial judge also considered the facts of the defendant's unauthorized use of a vehicle and aggravated flight from an officer, while making it clear that the defendant was not being punished for these offenses. The trial judge noted that the defendant engaged officers of several different agencies "in a high speed pursuit that placed their lives and lives of innocent bystanders in extreme jeopardy." Though the defendant was acquitted by the jury of these two charges, the trial judge found that "the evidence of his guilt *1292 was overwhelming." We agree. The jury's verdict, especially as to the aggravated flight charge, defies all reason. However, the jury's verdict does not preclude the trial judge from considering the full measure of defendant's conduct as an aggravating factor in devising the sentence. Prior criminal activity is a factor that may be considered by the trial court when sentencing a defendant and such activity is not limited to convictions. State v. Washington, 414 So.2d 313 (La.1982); State v. Brown, 410 So.2d 1043 (La.1982); State v. Berry, 630 So.2d 1330 (La.App. 4th Cir.1993). Even unadjudicated prior criminal offenses may be considered as aggravating factors at sentencing if the record shows guilt by a preponderance of the evidence. The evidence of record easily establishes the defendant's guilt of aggravated flight from an officer by a preponderance of the evidence.
The trial judge noted as additional aggravating factors that the defendant committed a crime of violence (purse snatching), that he showed no remorse for his conduct, and that he offered no apology to the victim of his crime. There were no mitigating factors. Lastly, the trial judge found there to be an undue risk that the defendant would commit another crime if given the benefit of a suspended sentence or probation. He believed that the defendant was in need of correctional treatment in a custodial environment and that a lesser sentence would deprecate the seriousness of the crime.
We find no abuse of the trial court's broad sentencing discretion in this matter. Even without considering the aggravated flight offense, the trial judge provided ample support for the sentence imposed. Considering the defendant's criminal history and his failure to amend his ways given the past opportunities he has had to do so, we cannot say that this maximum sentence is constitutionally excessive.
CONCLUSION
Finding no abuse of discretion on the part of the trial court in imposing the sentence of imprisonment for 20 years at hard labor, we affirm.
CONVICTION AND SENTENCE AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563365/ | 558 S.W.2d 344 (1977)
INTERTHERM, INC., Plaintiff-Appellant,
v.
CORONET IMPERIAL CORPORATION, Defendant-Respondent.
No. 37452.
Missouri Court of Appeals, St. Louis District, Division Three.
October 11, 1977.
Motion for Rehearing and/or Transfer Denied November 14, 1977.
Application to Transfer Denied December 19, 1977.
*346 Isaac E. Young, Maplewood, Sylvan H. Robinson, Clayton, for plaintiff-appellant.
Rodney Weiss, Don R. Sherman, Rosenberg, Weiss, Goffstein, Kraus & Seigel, Clayton, for defendant-respondent.
KELLY, Judge.
In this contract action the appellant sought damages in the sum of $43,797.96 and the respondent counterclaimed seeking $18,421.00 allegedly due and owing to it for merchandise delivered to the appellant under the terms of the contract but not paid for. The cause was tried to the trial court without a jury and judgment was entered against the appellant on its cause of action and for the respondent on its counterclaim in the sum prayed for, i. e. $18,421.00, together with interest thereon at the rate of 6% per annum from May 5, 1970 and its costs. Appellant appealed. We affirm.
Respondent (hereinafter Coronet) is a corporation which manufactures dishwasher units primarily for the residential home building, apartment and condominium market. Appellant (hereinafter Intertherm) is a corporation which is engaged in the business of supplying various items to the mobile home industry. On October 1, 1969, these parties entered into an agreement prepared by Coronet's sales manager, Mr. Schultz, whereby Coronet granted to Intertherm exclusive rights to sell in the United States and Canada to the Factory Built and Mobile Home Industry and Recreational Equipment Industries a built-in dishwasher it manufactured. In consideration for this exclusive right of sale, Intertherm agreed to purchase from Coronet, at an agreed upon price per unit, 1500 built-in dishwasher units within 60 days of the date on which the agreement was executed. Paragraph 7 of the agreement provided that either party could terminate the agreement, with or without cause, upon written notice mailed or delivered to the other party to the agreement within 120 days of the effective date of termination. Paragraph 8 also provided that upon termination of the agreement Intertherm had the right, after inspection by Coronet, to return Intertherm's inventory of Coronet Dishwasher Units "which in Coronet's sole judgment, (were) acceptable as salable and do not entail any additional cost whatsoever to Coronet."
The parties entered upon the performance of the agreement but when sales did not proceed as Intertherm expected, a letter dated June 17, 1970, was sent to Coronet notifying it that Intertherm was exercising its right to terminate the agreement. On November 5, 1970 and again on December 4, 1970, Intertherm requested that Coronet inform it where to return the dishwasher units it had on hand. Coronet replied by letter of December 9, 1970, that the units were not returnable, but did not advise Intertherm why this was so. Fred Martin, Vice-President in charge of sales for Intertherm, inquired why the dishwasher units were not returnable and was told because the Coronet label had been replaced by the Intertherm label and Coronet would incur some additional costs removing those labels.
On December 29, 1970, Intertherm instituted this litigation resulting in an unfavorable judgment.
On appeal, although Intertherm in its Points Relied On portion of its brief raises two Points and numerous sub-points, reduced to their simpler allegations of error they are, that the judgment of the trial court is erroneous and should therefore be reversed and a judgment entered in its favor on its cause of action and against Coronet on its counterclaim because it is based on erroneous (1) findings of fact and (2) conclusions of law.
Review of this court tried case is governed by the standards enunciated in Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976) and the judgment of the *347 trial court must be sustained unless the reviewing court finds that the judgment is (1) unsupported by substantial evidence, (2) is against the weight of the evidence, (3) is an erroneous declaration of the law, or (4) is an erroneous application of the law. Appellate courts are further warned that they should exercise the power to set aside a decree or judgment of the trial court on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong.
The bone of contention between the parties is their respective rights and duties under the terms of paragraph eight of the agreement. Intertherm contends that inherent in the phraseology of this paragraph is the term "damaged dishwasher units" and that Coronet, upon termination of the contract under paragraph 7 of the agreement, was duty bound to accept the return of all dishwasher units in Intertherm's inventory except those which were damaged. According to Intertherm, the terms "after inspection" in this paragraph are of significance, because they would not be necessary to the contract unless they were put into the contract by the drafter of the contract, Mr. Schultz, of Coronet, so that Coronet could inspect the dishwashers prior to their return to ascertain whether they were damaged.
On appeal, Intertherm attacks the trial court's Findings of Facts 5, 6, 7, 8 and 9. These are:
"5. That the agreement of October 1, 1969, provided for termination by either party upon the giving of 120 days written notice, and further provided that Intertherm could return to Coronet those dishwashers purchased from Coronet which, in Coronet's sole judgment, were acceptable as saleable and which would not entail any additional cost to Coronet.
"6. That on June 17, 1970, Intertherm terminated the agreement and attempted to return to Coronet 1305 dishwashers out of the original 1500 dishwashers purchased; that Coronet refused to accept the return of such dishwashers; and that Coronet acted reasonably and in good faith in refusing to accept the return of such dishwashers.
"7. That it was not necessary, nor was Coronet required, to inspect the 1305 dishwashers in order to make a determination that the dishwashers were not saleable and would have entailed additional cost to it.
"8. That the dishwashers were not readily marketable and were not saleable as such and the acceptance by Coronet of the 1305 dishwashers would have entailed additional cost to Coronet.
"9. That under the terms of the agreement of October 1, 1969, Coronet was neither obligated to, nor required to, accept the return of the 1305 dishwashers."
The attacks against each of these findings of fact by the trial court are couched in essentially the same terms and would either insert into the terms of the agreement the words "undamaged," or they comprise arguments that there was no evidence to support the finding that Coronet acted in good faith in refusing to accept return of the dishwashers. Objection is made to the use of the term "marketable" in Finding No. 8 because, Intertherm contends, there is no evidence to support this finding and the term is found nowhere within the contract itself, so that in making this finding the trial court "rewrote a new and different contract and misconstrued and destroyed the intent of the parties."
In support of its interpretation of paragraph 8 that the word "damaged" must be read into the agreement, Intertherm at trial offered the testimony of its national sales manager in 1969, William Atteridge, who testified that in the Fall of 1969, he was approached by E. J. Schultz, Coronet's sales manager at that time, relative to the feasibility of Intertherm merchandising Coronet's dishwashers in the mobile home field. A number of meetings followed and culminated in the execution of the agreement of October 1, 1969. During these preliminary negotiations Mr. Atteridge discussed with Mr. Schultz Intertherm's right to return the merchandise it would purchase from Coronet for resale to the mobile home industry.
*348 On the day the contract was executed, Mr. Schultz brought the contract to him at Intertherm's office and prior to signing it for Intertherm, Mr. Atteridge questioned Mr. Schultz about paragraph 8 of the agreement. Mr. Schultz "indicated that for some reason were we to bring back these units we would have to check them over for damage so that we would have to rework them, put new parts, in order to put them back out again, . . ." Mr. Atteridge executed the contract for Intertherm, but not before he made a handwritten change on it with respect to the terms of sale, i. e. "1% Discount Ten/30 day net," and both he and Mr. Schultz initialed this change.
Mr. Schultz did not testify at trial. Mr. Hilleman, Coronet's president, testified that Mr. Schultz was no longer in the employ of Coronet and that he did not know Mr. Schultz's whereabouts.
On the basis of this testimony Intertherm argues that inasmuch as Mr. Atteridge's credibility was unchallenged the trial court erred in completely disregarding it. In oral argument Intertherm's counsel conceded that in a court-tried case the trial judge, as the trier of the facts, may disbelieve any witness. The trial court in a court-tried case is the arbiter of the facts; it may believe or disbelieve oral evidence and the fact that the testimony is uncontradicted is not in any way decisive. Miller v. Gayman, 482 S.W.2d 414, 420 (Mo.1972); Labor Discount Center, Inc. v. State Bank & Trust Company of Wellston, 526 S.W.2d 407, 421[4] (Mo.App.1975). This argument is without merit.
Intertherm, in its own case, adduced evidence that its labels had been placed on the dishwashers in its inventory and which it wanted to return to Coronet. Fred Martin, Intertherm's Vice-President in charge of sales, testified that on December 21, 1970, he wrote a letter to Mr. Hilleman of Coronet to the effect that the units would be returned in the original cartons at no cost to Coronet, freight prepaid, and that Intertherm would take care of the labels. In his testimony, Mr. Hilleman enumerated the reasons why Coronet would not accept return of the dishwashers. These were, the quantity and the "configuration;" the latter the major reason and was occasioned by changes in local building and residential plumbing codes in some areas of the United States which would require tooling, engineering and design changes if the dishwashers were to be made salable. Without these changes the dishwashers could not be sold to the home building industry, he testified.
The term "salable" is defined in Webster's Third New International Dictionary (1971) as "1: Capable of being sold; fit to be sold; marketable, vendible." It is a term used in everyday conversations. In contending that this paragraph of the contract was ambiguous and that the term "salable" as employed by Coronet was intended to include all of those dishwashers except those dishwashers which were not salable because they were damaged, Intertherm, as the plaintiff in the trial court, assumed the burden of proof. The only evidence it adduced in support of this contention was the testimony of Mr. Atteridge and the trial court chose to disregard that evidence and there was no further evidence to support Intertherm's argument in this respect. We have already held that the trial court had the right to disregard Mr. Atteridge's testimony as to his understanding of the word and what Mr. Schultz had told him.
In interpreting paragraph 8 to ascertain the intent of the parties, the trial court, we believe, interpreted its terms in accord with the rule in Restatement of Contracts, Second § 229(a), Tentative Draft No. 9 (1973), that "an interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, "unlawful or of no effect". In doing so, the trial court concluded that the right of Intertherm to return the dishwashers it was unable to sell to the mobile home market was subject to a condition which, according to the terms of the agreement, was within Coronet's discretion so long as said discretion was exercised in good faith and not arbitrarily. There was, in our opinion, *349 substantial evidence to support the trial court's finding that Coronet acted reasonably and in good faith in refusing to accept the return of these dishwashers. We hold that there is no merit in Intertherm's attacks on Findings of Fact 5 and 6.
Intertherm's attack on Finding of Fact No. 7 of the trial court is essentially that the trial court has ignored the meaning of the express language of the contract and more specifically the meaning or significance of the words "after inspection by Coronet" by expanding the application of the language to the marketability of the dishwashers and to additional costs entailed in such marketing and by ignoring the uncontradicted testimony of Intertherm's witnesses. Once again Intertherm argues that the significance of the terms "after inspection by Coronet" means that "the parties agreed that the goods were saleable if they were undamaged." The fallacy of this argument is that the trial court did not ignore these words in the contract as is evident from a reading of the Finding. What the trial court did do was determine that "saleable" did not mean "undamaged," that Coronet could refuse to accept the return of any goods which were not salable, and under the circumstances of this case, no inspection was required to ascertain the salability of the merchandise. This right of inspection was incorporated in the agreement solely as a benefit for Coronet, and as such, it was waivable by Coronet, except when a waiver would affect Intertherm's rights. Campbell v. Richards, 352 Mo. 272, 176 S.W.2d 504, 505[1] (1944). The trial court concluded, correctly we think, that Coronet's waiver of its right to inspect did not adversely affect Intertherm's right of return where, as here, inspection was unnecessary for a determination of the "saleability" of the dishwashers.
Intertherm contends that the trial court in Finding of Fact No. 8, when it interpreted the word "saleable" to mean "marketable" although the contract itself did not contain the word "marketable," and the undisputed evidence was that the word "saleable" meant only "undamaged merchandise," rewrote a new and different contract for the parties.
We conclude that this argument is specious. The term "marketable" is defined in Webster's Third New International Dictionary (1971) as follows:
"Marketable 1: fit to be offered for sale in a market; being such as may be justly and lawfully sold or bought . . . 2: of or relating to buying or selling . . b: enjoying a high degree of liquidity."
The term "marketable" is, we believe, employed in the context of this Finding of the trial court as a synonym for the term "salable."
We have already disposed of Intertherm's argument with respect to evidence it contends was "undisputed" and need not repeat our comments on that subject further.
Intertherm's attack on Finding of Fact No. 9 is that there is no substantial evidence to support said finding and that it is against the weight of the evidence because it is based on erroneous findings and misconstructions embraced in Findings of Fact Nos. 5, 6, 7 and 8. Our disposition of Intertherm's attacks on those Findings of Fact likewise dispose of this contention and we hold it to be without merit.
Throughout its attack on Findings of Fact Nos. 5, 6 and 8 Intertherm relies on argument that the trial court erred in that it failed to construe the terms of the agreement against Coronet, whose agent prepared the document. Restatement of Contracts, Second § 232 states that a meaning which operates against the draftsman is preferred in choosing among the reasonable meanings. The application of this rule of construction and interpretation necessarily presupposes that there is more than one reasonable meaning for the term to be construed or interpreted. Comment 1 to this section in the Restatement further states that there is a sound rationale supporting the effect of the rule "(i)n cases of doubt. . . so long as other factors are not decisive."
What Intertherm seeks to do here is incorporate into the word salable, the adjective *350 "undamaged." Had the trial court believed Intertherm's evidence it might have done so. However, it exercised its right to disbelieve that evidence and we do not find that in doing so it was guilty of error. To hold as Intertherm would have us do, we would have to direct that the trial court should have entered a judgment based upon evidence it disbelieved only because the contract was drafted by an agent of Coronet. This we will not do.
Turning now to Intertherm's contention that the judgment is based upon erroneous conclusions of law, the Conclusions under attack are Conclusions of Law Nos. 1, 2 and 4. These read:
"1. The Court finds that the agreement of October 1, 1969, and more specifically Paragraph 8 thereof, is clear and unambiguous, and that parol or extrinsic evidence may not be used to vary, alter, or contradict an unambiguous written contract.
"2. The Court finds that when the words found in a contract are plain and free from ambiguity, oral evidence of the intent of the parties should be excluded; nevertheless, the cause being tried without a jury, the Court allowed into evidence such oral or parol evidence. Having considered such evidence, the Court further finds that the intent of the parties was consistent with the express written terms of the contract.
"4. The Court finds that a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by the evidence of any prior agreement or of a contemporaneous oral agreement."
The initial attack on Conclusion of Law No. 1 is that under the common law in order to show the real intent of the parties, parol or extrinsic evidence was properly admissible regarding the prior and contemporaneous negotiations, discussions and understandings of the parties leading up to and attending the signing of the agreement as prepared and drafted. This attack on the Conclusion is moot because the parol evidence was admitted and considered by the trial court but found to be without sufficient probative value to support the plaintiff's case. The gist of Intertherm's complaint, as we deduce from argument on this Point, is not that the trial court did not permit the evidence to come in, but, rather, that the trial court chose to disbelieve it.
Intertherm does not contend that there is here present a patent ambiguity; it concedes that its evidence on this issue was admissible only to resolve a latent ambiguity. "Latent ambiguity" has been defined in Missouri as one which " . . . exists where a writing presents no ambiguity, on its face, but when it is sought to apply the words used to the subject matter, it is found that they do not correctly describe or clearly apply to it." Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061, 1064 (1937); Prestigiacamo v. American Equitable Assur. Co., 240 Mo.App. 839, 221 S.W.2d 217, 221[4] (1949). In Hardy v. Matthews, 38 Mo. 121, 124 (1886) our Supreme Court said that "(a) latent ambiguity is where you show that words apply equally to two different things or subject matters, and then evidence is admissible to show which of them was the thing or subject matter intended." "It is undoubtedly true that `(t)he most common form of latent ambiguity arises where an instrument contains a reference to a particular person or thing, and is thus apparently clear, but it is shown by extrinsic evidence that there are two or more persons or things to whom or to which the description might properly apply.'" 32A C.J.S. Evidence § 961 b(3), p. 430; Hardin v. Ray, 404 S.W.2d 764, 770 (Mo.App.1966). While there are other circumstances where the latent ambiguity exception to the parol evidence rule may have a proper place, this is not one of them. See Prestigiacamo v. American Equitable Assur. Co., supra; Kast v. Kast, 361 Mo. 623, 235 S.W.2d 375 (1951). The agreement under consideration plainly and unmistakably committed the return of the merchandise to those dishwashers which were salable. What Intertherm sought was to create an ambiguity where, in fact, none existed, and incorporate into the agreement the words *351 "undamaged and saleable dishwashers." The trial court was not guilty of error in finding that there was no latent ambiguity, nor in exercising its prerogative of disbelieving the testimony of Mr. Atteridge, which in fact, it did admit and consider.
With respect to Conclusion of Law No. 2, once again Intertherm relies on its charge that the trial court "deleted" from the contract the terms "after inspection" and ignored its parol evidence of intent of the parties. This is nothing more than a reiteration of its prior complaints and like them, is without merit.
Conclusion of Law No. 4 is in error, Intertherm claims, because its parol evidence did not contradict the agreement but was required to explain the real intent of the parties with respect to the meaning of paragraph 8 within the purview of § 400.2-202(b) RSMo. 1969 and because the transaction constituted a "sale or return" under § 400.2-326 RSMo.1969.
In the argument on this point Intertherm once again contends that Mr. Atteridge's testimony regarding his discussions with Mr. Schultz explained the true intent of the parties and was evidence of consistent additional terms admissible under subparagraph (b) of § 400.2-202 RSMo.1969 and was, therefore, properly admissible. The trial court so ruled; but simply did not believe this testimony.
Intertherm relies on § 400.2-326 RSMo. 1969 for the proposition that this transaction is a "sale or return," because Intertherm's reticence to buy the merchandise was overcome only by the seller's agreement to take back the dishwashers in lieu of payment if Intertherm failed to resell them. Therefore, the argument proceeds, "without such a provision and without Schultz's explanation of the true meaning and real intent of the language he drafted and prepared in paragraph 8, the contract would never have been executed by Intertherm." For those reasons, Intertherm contends, Mr. Atteridge's uncontradicted testimony regarding Mr. Schultz's statements concerning the intent and meaning of the language should have been accepted by the trial court.
A "sale or return" is defined in § 400.2-326(1)(b) as a sale wherein delivered goods may be returned to the buyer even though they conform to the contract, unless otherwise agreed, where the goods are delivered to the buyer primarily for resale.
Intertherm has not cited to us, nor have we found anywhere in the Uniform Commercial Code, any prohibition against the setting of conditions whereby the right to return of merchandise, in a "sale or return" contract, to the seller might be limited. Even under Intertherm's construction of the contract Coronet would not be obligated to accept the return of any damaged dishwashers despite the fact that nowhere in the contract does the term "damaged" appear. Section 400.1-102(3) RSMo. 1969, specifically authorizes variation of the effect of the provisions of the Code with certain exceptions. We have here no circumstance which brings this agreement within one of the exceptions. Furthermore, § 400.1-102(4) and Comment 3 to said section clarify the phrase "unless otherwise agreed" as they appear in other sections of the Code, and are applicable here. "Unless otherwise agreed" was adopted as a drafting technique and emphasizes that not every set of facts will come within the four corners of any given rule. The phraseology of § 400.2-327, which describes special incidents of "sale or return" contracts, acknowledges that the option to return the whole or any commercial unit of the goods while in substantially their same condition might be varied by an agreement otherwise. We conclude that even in a "sale or return" contract the terms upon which a return of the goods must be accepted by the seller may be agreed upon by the parties so that the seller is not legally obligated to accept the return of all or a part of the commercial items which are the subject of the contract upon the termination of the contract unless they meet standards agreed upon between the parties to the contract. Intertherm's argument that the term "saleable" as used in paragraph 8 of the contract referred only to undamaged dishwashers is untenable, because acceptance of that interpretation of *352 the meaning of the term renders the entire contract clause superfluous in a "sale or return" contract. Section 400.2-327(2)(a) RSMo.1969 specifically provides that as a special incident to a "sale or return" contract "the option to return extends to . . the goods while in substantially their original condition." (Emphasis supplied). Damaged dishwashers hardly satisfy this condition for return of the merchandise. Therefore, Coronet's right to refuse to accept the return of the damaged dishwashers was already embodied within the terms of the contract as written as a special incident thereto.
There is no merit to this Point.
We affirm.
GUNN, P. J., and JOHN L. ANDERSON, Special Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564962/ | 691 S.W.2d 420 (1985)
STATE of Missouri, Plaintiff-Respondent,
v.
Ernest MENTOLA, Defendant-Appellant.
No. 13736.
Missouri Court of Appeals, Southern District, Division Two.
April 23, 1985.
Motion for Rehearing or Transfer Denied May 16, 1985.
Application to Transfer Denied June 25, 1985.
*421 William L. Webster, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Donald L. Catlett, Asst. Public Defender, Rolla, for defendant-appellant.
Motion for Rehearing or Transfer to Supreme Court Denied May 16, 1985.
PREWITT, Chief Judge.
Following jury trial defendant was convicted of assault in the first degree and sentenced to ten years' imprisonment. Defendant presents two points relied on.
Defendant was charged under § 565.050.1(1), RSMo 1978 (since amended, see RSMo 1984). It states that assault in the first degree can be committed if one "knowingly causes serious physical injury to another person". Defendant contends that the evidence was insufficient to support the change because there was no evidence that the victim of the assault suffered "serious physical injury".
"`Serious physical injury' means physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." § 556.061(24), RSMo Supp.1982 (since amended, see RSMo Supp.1984).
In reviewing to determine if the evidence was sufficient to support the charge, we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. State v. Morrison, 659 S.W.2d 346, 347 (Mo.App.1983).
There was testimony that defendant hit the victim across the jaw and then over the head with a brass candlestick. The victim suffered a broken jaw which was wired shut by a physician for six weeks. Some shattered bone found under the victim's tongue was removed by the physician. Forty-five stitches were taken in his head. At trial, ten months after the incident charged, he testified:
Q [David G. Warren, Prosecuting Attorney] Did you lose any teeth or later find out after the operation that any teeth had been extracted?
A Yes, I lost one.
Q What area was that from?
A The bottom one here (indicating). The eye tooth I guess they call it.
Q That would be the lower left part of your jaw or your teeth?
A Yes.
Q Have you continued to have any problems because of this or notice any pain or any difference in your head area because of the injuries that you suffered that day?
A Yes.
Q And can you tell the jury what those are?
A I never have regained the feeling back in my jaw, it's still numb. And after I eat I get a sharp pain and my teeth are loose, which I'll have to see Dr. Williams. If he's here today, I'm going to talk to him about it. But he told me that the feeling wouldn't come back for a very long period of time.
There was no evidence that the injuries created "a substantial risk of death" or *422 "serious permanent disfigurement". There was evidence of a protracted loss or impairment of the function of a bodily member or organ.
"Protract" means "To draw out or lengthen in time; prolong." American Heritage Dictionary 1052 (1978). Obviously, protracted is something short of permanent, but more than of short duration. What is considered protracted depends on the circumstances. People v. Obertance, 105 Misc. 2d 558, 432 N.Y.S.2d 475, 476 (1980).
A fracture of the jaw preventing a victim from chewing food for six weeks is a "protracted loss or impairment". State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981). The jaw is a "member" or "organ" of the body. Id. 300 N.W.2d at 161. See also People v. Obertance, supra, 432 N.Y. S.2d at 476-477 (Eight days can be a "protracted" period.); People v. Gray, 47 A.D.2d 674, 363 N.Y.S.2d 968, 970 (1975) (Two months can be protracted impairment of health.)
Laying aside the problems the victim was still suffering with at trial time, six weeks' impairment of the jaw was sufficient for the jury to find serious physical injury. Compare also State v. Emory, 643 S.W.2d 24, 27 (Mo.App.1982); State v. Teal, 624 S.W.2d 122, 124 (Mo.App.1981); Cheatham v. State, 85 Wis. 2d 112, 270 N.W.2d 194, 198 (1978). We conclude that this point has no merit.
In his remaining point defendant contends that the trial court erred in denying his motion to strike the jury panel because of a remark made by a venirewoman. He asserts that this remark prejudiced the entire panel and infringed his right to a fair trial as it "implies criminal conduct other than the charge before the Court".
Defendant's counsel had asked the prospective jurors if any of them could not keep in mind that the "charge is merely a piece of paper and it's not evidence?" One person apparently raised her hand. When called upon by defendant's counsel, she responded, "I know of two other assault victims ". She was interrupted by the trial judge and excused.
The trial court is vested with broad discretion in determining if a jury panel should be dismissed and its ruling is not disturbed on appeal unless it clearly indicates an abuse of discretion. State v. McKinney, 630 S.W.2d 96, 99 (Mo.App. 1981). The trial court is in a better position than an appellate court to determine what effect, if any, the statement had on the prospective jurors. Id.
The venirewoman did not say that defendant committed other assaults. She could have intended to say that she knew two persons who had been assaulted by someone else. It is not established that her remark was derogatory to defendant or that others on the panel interpreted her remark to indicate that defendant had committed previous assaults. If they thought she was saying that she knew two other people who were assaulted in the same disturbance from which this charge arose, that was not prejudicial. Evidence indicating that others were involved and could have been assaulted was presented during the trial. We find no abuse of discretion in denying the motion to quash the panel. Compare State v. Byrd, 676 S.W.2d 494, 500 (Mo. banc 1984). This point is denied.
The judgment is affirmed.
HOGAN, P.J., and MAUS and CROW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564980/ | 691 S.W.2d 498 (1985)
STATE ex rel. Robert O'BLENNIS, Relator,
v.
The Honorable George ADOLF and The Honorable William Nicholls, Judges of the Circuit Court of the City of St. Louis, Mo., Respondents.
No. 49752.
Missouri Court of Appeals, Eastern District, Division Four.
May 21, 1985.
*499 Robert Presson, Jefferson City, for relator.
Robert Herman, St. Louis, for respondents.
SMITH, Presiding Judge.
Relator seeks our writ of prohibition to command respondents to refrain from further proceeding in an underlying action for legal malpractice. That case is entitled Charles Poole v. Robert G. O'Blennis. Respondent Nicholls denied relator's motion for summary judgment. The matter is currently pending before respondent Adolph.
The litigation has its genesis in an indictment in October 1974, charging Poole with assault with intent to kill. O'Blennis, a public defender, was appointed to represent Poole on that charge. O'Blennis, pursuant to that appointment represented Poole throughout trial, sentencing, and appeal. Poole was found guilty of assault with intent to kill with malice in July, 1976, and was sentenced to twenty years imprisonment as a second offender. That conviction was affirmed on appeal. State v. Poole, 556 S.W.2d 493 (Mo.App.1977). Poole filed a motion pursuant to Rule 27.26 to correct, vacate, or set aside his conviction and sentence on the basis that he had ineffective assistance of counsel at his trial. Relief on that motion was denied by the trial court. In October, 1983, we reversed the action of the trial court and remanded for further proceedings. Poole v. State, 671 S.W.2d 787 (Mo.App.1983). Poole's suit against O'Blennis was filed in January, 1984.
On November 7, 1984, Poole pleaded guilty to the original charge of assault with intent to kill with malice. Pursuant to a plea bargain with the prosecutor Poole was sentenced to imprisonment for seven years. Prior time served on the 1976 conviction was allowed as a credit, which exceeded the seven year sentence imposed on the 1984 conviction. Poole was immediately freed.
At the guilty plea hearing Poole was represented by counsel originally appointed to represent him in the 27.26 proceeding. Counsel made the following statement to the Court in the presence of Poole:
"Mr. Poole has indicated to me, up to today, that he did desire to have this matter tried before a jury. I indicated to him that I was prepared to try it before a jury, had spent a lot of time in the last week or so reviewing the file, and have talked to Mr. Poole, and a witness that I have a subpoena served upon, a Jerome Stevens, who would purport to be an alibi witness, in effect, for Mr. Poole.
This morning, Mr. Poole indicated to me that he desired to, in effect, enter a plea of guilty to the charge pending before this court. I have advised him that, in my opinion, that would diminish if not absolutely defeat the civil suit that he had pending as a result of what had happened or did not happen in the past; and that I was leaving the decision solely to him as to whether or not he wanted to enter a plea of guilty or not enter the plea of guilty and proceed on to trial. I explained to him what the recommendation of the Circuit Attorney was if he did enter a plea of guilty that the recommendation would be that he would get credit for the time served and would not have to serve any additional time. I explained to him that, conceivably, he could be convicted and may have to do more time, but that I also told him, in my opinion, I did *500 not think it was likely. But, in any event, I wanted to explain to the Court and make it clear on the record that the decision to do this is solely Mr. Poole's and that I am willing to represent him in whatever matter he wants to pursue."
Poole was then placed under oath to answer questions of the court in order for the court to decide "whether or not to accept your plea of guilty." The trial court then conducted an extensive questioning of Poole designed to determine the voluntariness of the plea and Poole's understanding of his rights. To a question by the court if Poole had any questions before proceeding further, Poole stated:
"No more than directing my questions to the Court, your Honor. I have been down I have been incarcerated for seven years, and since I have been out, I have been out for a year and several months. I feel, it was best for me to do the thing that was right. I mean, I can lie to everybody else, but not myself. I mean, I'm tired. I mean, I'm tired of the penal system. I don't want any of that anymore. I want to remain out here in society and try to be a citizen as best as I possibly can. I'm just flat-foot tired. You know, running back and forth down to court. I want to do what I have to do as a man, my responsibility. And that's why I gave the statement that I gave today."
The court then inquired whether "along the lines of the statement that you just made, Mr. Poole: Are you pleading guilty here today because you are guilty of this crime?" Poole's response: "To be truthful with the Court and the people that are present, yes. I must say that."
The prosecutor's summary of the evidence of the state was that Poole fired at a Mr. Wilson with a shotgun but missed him. Poole was asked if the statement of the prosecutor was substantially true and correct, to which Poole answered, "Yes sir, Your Honor." He also affirmatively responded that his willingness to plead guilty was the result of the plea bargain reached between his attorney and the prosecutor. The Court found a factual basis for the plea, accepted the plea of guilty and found Poole guilty beyond a reasonable doubt.
O'Blennis filed a motion for summary judgment on the basis of Poole's plea of guilty in November 1984. In response to that motion Poole filed an affidavit in which he denied having shot at Mr. Wilson or any other person or of performing any other act charged by the prosecuting attorney in the criminal case. He also stated that he pleaded guilty "only to avoid the mental anguish of a second jury trial on these charges and to eliminate the possibility of returning to prison." The trial court denied the motion for summary judgment and we issued our preliminary writ.
We turn first to the availability of prohibition to review the denial of the motion for summary judgment. Normally we are reluctant to utilize the writ for the purposes of reviewing a denial of summary judgment or to correct trial court error. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983). But as stated in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984) (Rendlen, J. concurring): "Forcing upon a defendant the expense and burdens of trial when the claim is clearly barred is unjust and should be prevented." Prohibition is generally the appropriate remedy to forestall unwarranted and useless litigation. State ex rel. New Liberty Hospital District v. Pratt, 687 S.W.2d 184 (Mo. banc 1985); State ex rel. Hamilton v. Dalton, 652 S.W.2d 237 (Mo.App.1983) [1-5]. The issue before the trial court and us is solely a matter of law. There is no dispute regarding the facts which present that issue. If relator is correct then he has an impregnable defense against Poole's suit. There is no right of appeal from the denial of the motion for summary judgment and refusal to utilize the writ will compel defendant to undergo what we have concluded is clearly unwarranted and useless litigation at great expense and burden. Under the factual situation here, we conclude that prohibition is an available remedy. We turn to the merits.
*501 Relator contends that Poole is conclusively bound under the principles of collateral estoppel by his guilty plea in November, 1984. That plea, relator opines, establishes Poole's guilt of the assault crime and concomitantly precludes his suit for malpractice because of the absence of proximate causation of his injuries from any negligence of relator. In Roehl v. Ralph, 84 S.W.2d 405 (Mo.App.1935) [2, 3] this court held that in a case seeking to recover for legal malpractice the existence of a causal connection between the lawyer's negligence and the plaintiff's loss and injury is a necessary element of plaintiff's cause of action which he bears the burden of establishing. See also Lange v. Marshall, 622 S.W.2d 237 (Mo.App.1981). Roehl v. Ralph, supra, further held that:
"... it was essential that plaintiff show that he actually had a valid defense to the note which he might have supported by substantial evidence so as to have required its submission to the jury, and which, had the jury followed the law as it is to be presumed that they would have done, would have impelled the bringing in of a verdict in his favor. This for the reason that any failure, neglect, or omission on Ralph's part to have set up a futile and unavailing defense could not be regarded as the proximate cause of plaintiff's having been held to the payment of the note which he admittedly executed, and the case would therefore fail for want of the proof of the essential element of causal connection." [4, 5].
Poole's charges of malpractice by O'Blennis are that he failed to properly investigate, interview, subpoena and call witnesses, and cross-examine to establish Poole's defenses of misidentification and alibi. As an element of his case against O'Blennis, Poole bears the burden of establishing that he in fact had defenses of misidentification and alibi. Obviously, if Poole committed the charged offense he did not validly have such defenses. The parties are not in disagreement to this point.
Collateral estoppel has traveled a less than tranquil path in recent years. It deals with issue preclusion. The nature of collateral estoppel is that a fact appropriately determined in one lawsuit is given effect in another lawsuit involving different issues. Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984) [1, 2]. Originally the doctrine required a mutuality of estoppel that both parties were parties or in privity with a party to the original suit. In Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713 (Mo. banc 1979) [9-11] the court recognized the availability of collateral estoppel to a non-party to the original action to prevent re-litigation of an issue by a party who had previously litigated the same issue with adverse results. In short, it abolished the requirement of mutuality of estoppel. The court established a four part test to determine the availability of collateral estoppel in such a situation. Those parts are: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Fairness was held to be the overriding consideration in determining whether or not to require mutuality. Id.
In Oates it was held that collateral estoppel should not be applied because of a conflict of interest inherent in uninsured motorist cases rendering the use of collateral estoppel inequitable under the facts of that case. In Hudson v. Carr, supra, no inequity was found in applying collateral estoppel to plaintiff's personal injury claim based upon a verdict on a property damage claim which assessed his degree of negligence for the accident. Both Oates and Hudson apply an objective standard in assessing the "full and fair opportunity to litigate" standard.
*502 The use of collateral estoppel falls into two categories defensive and offensive. In the defensive situation the doctrine is utilized by the party raising the doctrine to prevent a party to the original suit from re-litigating a fact necessary for the latter party to establish to carry his burden of proof. Usually it is utilized by a defendant to preclude a plaintiff from seeking to prove a fact previously decided against the plaintiff in a prior suit to which plaintiff was a party. Offensive collateral estoppel is an attempt by one party to prevent the other party from challenging a fact necessary to the first party's cause of action and on which that party bears the burden of proof. Usually it will involve a plaintiff preventing a defendant from contesting a fact necessary to plaintiff's recovery. The cases reflect that courts have traditionally been less inclined to allow offensive use of the doctrine than its defensive use when mutuality of estoppel is absent.
In Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979), the Court upheld the offensive use of collateral estoppel without mutuality against a challenge that it denied a right to jury trial in federal court. There the defendants had unsuccessfully litigated with the Securities and Exchange Commission over whether a proxy was misleading and false. Plaintiffs then sought to prevent defendants from re-litigating that issue in plaintiffs' stockholder class action seeking damages. In the course of upholding the use of collateral estoppel in that case the Court approved consideration by the trial judge of the "incentive" of the defendants to litigate in the original proceeding. We find nothing in that opinion that makes resolution of the "incentive to litigate" issue dependent on an evaluation of the original losing party's subjective state of mind.
In Bi-State Development Agency v. Whelan Security Co., 679 S.W.2d 332 (Mo. App.1984) [6] we engrafted, by dicta, the tests applied in Parklane, supra, for an offensive use of collateral estoppel onto a defensive use of that doctrine. It was upon this basis, and in reliance on Bi-State, that the trial court here denied the motion for summary judgment. Poole relies upon his affidavit as to his reasons for entering his plea of guilty to establish his absence of incentive to litigate the criminal charge. We find no binding authority that "incentive to litigate" is to be considered when collateral estoppel is invoked defensively, and no authority that "incentive to litigate" contemplates subjective considerations when the doctrine is invoked offensively.
We turn our attention to the law dealing with prior criminal convictions and their effect upon subsequent litigation involving the criminal defendant. For our purposes the starting point is In re Estate of Laspy, 409 S.W.2d 725 (Mo.App.1966). There plaintiff sought to recover from her husband's estate her widow's allowance for one year's maintenance. She had previously been convicted of manslaughter in causing the death of her husband by intentionally shooting and killing him. The court applied the rule that "no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his iniquity, or to acquire property by his own crime." [1, 2] It held that plaintiff's conviction was conclusive of her guilt of intentionally killing her husband without justification and refused to allow her to present evidence that the killing was in self-defense. In its discussion the court distinguished the offensive use of collateral estoppel involving a conviction from the defensive use of the conviction. While referring to the doctrine of mutuality, the court upheld the utilization of collateral estoppel (even in the absence of mutuality) on public policy grounds and because to deny use of the doctrine would allow plaintiff to collaterally attack her judgment of conviction. The Laspy doctrine was applied also in Wells v. Harris, 434 S.W.2d 783 (Mo.App.1968) involving a guilty plea, and in LaRose v. Casey, 570 S.W.2d 746 (Mo.App.1978) [3-6], Bradley v. Bradley, 573 S.W.2d 378 (Mo. App.1978) [3-6], and Estate of Gould, 547 S.W.2d 863 (Mo.App.1977) [1]. All of these cases involved the defensive use of collateral estoppel.
*503 Respondent relies upon a line of cases typified by Ferguson v. Boyd, 448 S.W.2d 901 (Mo.1970). Those cases involve the offensive use of collateral estoppel. The plaintiff in those cases was seeking to utilize collateral estoppel to prevent the defendant from denying a fact essential to plaintiff's recovery because of a prior conviction which found that fact against defendant.[1] In that situation the rule applied is that the conviction is admissible in evidence for consideration by a jury, but it is not conclusive and may be explained. See also Howard v. Riley, 409 S.W.2d 154 (Mo. 1966) [1, 2]; Pruiett v. Wilform, 477 S.W.2d 76 (Mo.1972) [4-6]; Nichols v. Blake, 418 S.W.2d 188 (Mo.1967) [1, 2]; Curtain v. Aldrich, 589 S.W.2d 61 (Mo. App.1979) [1-3].
The distinction between offensive and defensive use of collateral estoppel found in the Missouri cases appears to parallel the federal decisions. Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980); State Farm Mutual Auto Ins. Co. v. Worthington, 405 F.2d 683 (8th Cir. 1968); Nathan v. Tenna Corporation, 560 F.2d 761 (7th Cir.1977); Matter of Raiford, 695 F.2d 521 (11th Cir.1983); Mayberry v. Somner, 480 F. Supp. 833 (E.D.Pa.1979).
With these legal principles in mind we turn to the facts before us. O'Blennis seeks to utilize collateral estoppel defensively. His motion for summary judgment is premised upon preventing Poole from presenting evidence to establish that in fact Poole is innocent of the charge to which he pleaded guilty and for which he was convicted. Poole's factual innocence of that charge is an indispensable element of his cause of action. Poole's guilty plea was accepted after explanation to him of his rights, after explanation to him by counsel of its potential effect upon his civil litigation, after extensive questioning under oath by the trial court, and after he had on at least two occasions stated under oath that he was guilty of the offense charged. The extensive procedure followed by the court prior to accepting Poole's plea was in accord with Rule 24.02. The court is precluded under Rule 24.02(e) from accepting the plea unless there exists a factual basis for the plea. Poole's responses under oath established that factual basis as a result of a plea bargain satisfactory to Poole and Poole's admission of having committed the acts supporting the charge and the conviction.[2],[3]
To exacerbate the situation here we have two statements under oath (the answers at the plea hearing and the affidavit in opposition to summary judgment) which are diametrically opposed and one of which is a false statement of a material fact. Both statements were made to induce a court decision desired by Poole.
In this case involving defensive invocation of collateral estoppel Poole's guilty plea precludes him from denying his guilt of the assault charge. That plea decided the same issue of fact present in his malpractice case; it resulted in a judgment on the merits; Poole is a party to both cases; he had a full and fair opportunity to litigate his guilt or innocence. His subjective reasons for entering the plea do not form a basis for a collateral attack on the judgment of conviction which his malpractice suit is. It would be a dangerous precedent indeed to allow civil litigation premised upon an improper conviction to proceed on *504 the basis of a collateral attack upon that conviction particularly where that attack is based on subjective reasons for entering a guilty plea. See Mayberry v. Somner, supra. We conclude that to permit the continuation of this litigation would allow Poole:
"to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime." In re Estate of Laspy, supra, [1, 2].
As such it is against public policy for the suit to continue in that it "would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice." Laspy, supra, [13].
Writ of Prohibition made absolute prohibiting respondents from further proceeding in Cause number XXX-XXXXX. Respondents are directed to grant the motion for summary judgment.
SATZ, J., concurs in separate concurring opinion.
CRANDALL, J., concurs with the opinion of SMITH, J.
SATZ, Judge, concurring.
With reservation, I concur. My reservation stems solely from the procedural propriety of issuing this writ.
The trial court here denied a motion for summary judgment. The court had jurisdiction over the subject matter and the person and, thus, had jurisdiction to make its ruling. If the ruling was erroneous, it can be appealed after final judgment is entered. Therefore, one would think the writ would not lie. Not so. That is not the law in Missouri today and may not have ever been, except, perhaps, during the short life of State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983).
Prior to Morasch, the grounds for an appellate court to issue a writ of prohibition were, at best, imprecise. Tuchler, Discretionary Interlocutory Review in Missouri: Judicial Abuse of the Writ? 40 Mo.L.Rev. 577 (1975); Note, The Writ of Prohibition in Missouri, 1972 Wash.U. L.Q. 511. The primary cause of this imprecision, I believe, is our courts' ambiguous use of the term "jurisdiction" when confronted with an application for the writ. We use "jurisdiction" to mean judicial authority over the subject matter and the person, but we also use it to mean the judicial power to grant specific relief within that authority. Thus, prior to Morasch, our courts issued the writ when the trial court lacked jurisdiction over the subject matter or person, e.g., State ex rel. Rolla School District No. 31 v. Northern, 549 S.W.2d 596, 597 (Mo.App.1977); State ex rel. McCarter v. Craig, 328 S.W.2d 589, 592 (Mo. banc 1959), and also when the trial court had such jurisdiction but abused its authority to act abused its discretion and, thus, was said to act "in excess of" or "without jurisdiction," e.g., State ex rel. Albert v. Adams, 540 S.W.2d 26, 31 (Mo. banc 1976); State ex rel. Pulliam v. Swink, 514 S.W.2d 559, 561 (Mo. banc 1974).
In a pristine sense, a trial court without jurisdiction over the subject matter or person has no authority to act, either rightly or wrongly. Therefore, its attempt to act should be prohibited. A trial court that has jurisdiction over the subject matter and person, however, can act, both rightly and wrongly, and its wrong acts errors of law can be appealed. Nonetheless, our appellate courts select certain of the latter acts and prohibit the attempts of trial courts to complete these acts. This selection, I believe, is done on an ad hoc basis; our courts selecting those wrongful acts errors of law which the courts believe are so egregious they must be stopped.
As I understood Morasch, and apparently as those judges who concurred in the result understood it, see Morasch, 654 S.W.2d 892-94, the majority of the Court, in effect, stated that the writ of prohibition should only be used to review the trial court's jurisdiction over the subject matter or the person. Morasch, 654 S.W.2d 890-92. See also State ex rel. Hannah v. Seier, 654 S.W.2d 894 (Mo. banc 1983). This, *505 however, may have been a misinterpretation of the language used in Morasch.
Subsequent to Morasch, the Court stated the writ could be used not only to review "the question of trial court jurisdiction" but also could be used "in peculiarily limited situations ... in which absolute irreparable harm may come to a litigant...." State ex rel. Richardson v. Randall, 660 S.W.2d 699, 701 (Mo. banc 1983). Moreover, I believe State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984) implicitly confirms the conclusion that the grounds for issuing the writ are, perhaps, more varied than those suggested by Morasch. In General Electric, the majority of the Court, without mentioning Morasch, quashed a writ on the merits and permitted a trial to proceed on a claim allegedly barred by the statute of limitations. It was in this context that Judge Rendlen made the statement quoted by the majority here, in which he implied the writ should be used to prevent a trial court from "[f]orcing upon a [party] the expense and burdens of trial when the claim is clearly barred...." (Emphasis His). State ex rel. General Electric Co., 666 S.W.2d at 768.
Then, in State ex rel. D.M. v. Hoester, 681 S.W.2d 449 (Mo. banc 1984), the Court defined the meaning and reach of Morasch. More specifically, the Court stated that, in Morasch, "we held that violation of a statutory provision ... does not always constitute an act in excess of its jurisdiction," Id. at 450 n. 3., and, therefore, for procedural reasons, the preliminary writ there should not have been issued. But, analyzing the trial court's order then before it, the Court went on to say that this order would violate a statutory privilege restricting "the power of a trial court in the discovery process," and "it can be said that violation of the statute constitutes an act in excess of jurisdiction."[1]Id. at 450 n. 3.
In its most recent pronouncement, the Court indicated that when an appeal would fail "to afford adequate relief, prohibition [would be] the appropriate remedy to forbear patently unwarranted and expensive litigation, inconvenience and waste of time and talent." State ex rel. New Liberty Hospital District v. Pratt, 687 S.W.2d 184, 187 (Mo. banc 1985).
In light of these cases, I now believe Morasch made no change in the procedural principles governing the issuance of the writ. An appellate court can use the writ to determine whether the trial court is acting without jurisdiction over the subject matter or the person, e.g., State ex rel. Rolla School District No. 31 v. Northern, supra, whether the trial court, having such jurisdiction, is acting in "excess of its jurisdiction," e.g., State ex rel. D.M. v. Hoester, supra, whether the trial court's act will cause irreparable harm, e.g., State ex rel. Richardson v. Randall, supra, or whether a claim is clearly barred, e.g., State ex rel. New Liberty Hospital District v. Pratt, supra, State ex rel. General Electric v. Gaertner, supra, (Rendlen, J., concurring). *506 [2]Apparently, this is the understanding of our intermediate appellate courts. For example, none of us have any apparent reservation in determining whether a trial court is acting in "excess of its jurisdiction" in discovery matters, when we believe the trial court is going to commit what we believe to be an egregious error or mistake of law. See, e.g., State ex rel. Dover v. Lewis, 666 S.W.2d 35 (Mo.App. 1984) (Western District); State ex rel. Charterbank v. Donegan, 658 S.W.2d 919 (Mo.App.1983) (Southern District); State ex rel. Hamilton v. Dalton, 652 S.W.2d 237 (Mo.App.1983) (Eastern District); State ex rel. Anheuser v. Nolan, 692 S.W.2d 325 (E.D.Mo.App.1985). Our reasons here to issue the preliminary writ and make it absolute are consistent with the foregoing principles and certainly no less compelling.
My reservation, however, stems from my belief that Morasch did not guide us out of our procedural morass. In short, the extraordinary writ of prohibition is being used as the procedural vehicle for an ordinary discretionary appeal of an interlocutory order. I have no quarrel with this use as such. I do not believe our State Constitution necessarily limits the use of the writ to the narrow grounds of jurisdiction over the subject matter or person, nor do I believe ideal appellate review precludes the writ from being used to process discretionary appeals of interlocutory orders. If the writ is to be so used, however, the propriety of this use should be stated explicitly and the grounds for that use should be specifically defined. If the writ should not be so used, the writ can still be maintained as an extraordinary procedural vehicle to question a trial court's jurisdiction over the subject matter or the person, and the grounds for a discretionary appeal of an interlocutory order can be defined by rule or statute. See Fed.R.App. P. 5; 28 U.S.C. § 1292(b) (1982).
In other circumstances, it may well be true that rules of law are best developed on a case by case basis or are best applied on an ad hoc basis. This is not the case with the extraordinary writ of prohibition. Presently, the practicing bar has difficulty in determining when a preliminary writ will lie, particularly since none of our appellate courts support their denial of a preliminary writ with written reasons. The competent and conscientious lawyer is penalized for being aware of the apparent lack of exact grounds for issuing the writ. Moreover, the practicing bar no longer appears to suffer in quiet desperation but seems to have fallen into cynical resignation. The bar appears to believe the issuance of the preliminary writ is not governed by any fixed objective rules but rather is governed subjectively by the whim and caprice of individual judges. The bar deserves better, and we can do better.
I have no reservation, however, in concurring with the majority opinion on the merits. I agree with its major premise, its consistent logic and its rational conclusion.
Out of a proper concern for the rights of an accused, we have developed a detailed process for accepting a guilty plea to assure the plea is made voluntarily and knowingly, and, as additional protection, particularly for those tried by jury, we have developed an easily understood process for post conviction remedies. To permit plaintiff here to turn these processes in on themselves, as he seeks to do, would ironically mock the system and greatly diminish the trust sensible people have in it.
NOTES
[1] Frequently those cases involve conviction or pleas of guilty to traffic violations. We do not read those cases as limited to that fact situation however.
[2] Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977), relied upon by relator does not present a situation where the defendant's plea admitted the facts necessary for his conviction. There the facts admitted by the plea were legally insufficient to support conviction, because a failure of legal notice precluded as a matter of law defendant's guilt on the facts admitted. Poole's claim of innocence is based solely on his contention that he did not commit the acts he admitted he committed when he pled guilty.
[3] Poole did not seek to invoke the benefits of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) by pleading guilty but professing his innocence, which would have imposed upon the trial judge a more stringent exercise of discretion.
[1] In D.M., supra, an adopted daughter sued her father for sexual abuse and sought her father's medical history from his psychiatrist. Asserting the doctor-patient privilege, under § 491.060(5), RSMo Cum.Supp.1983, the father sought the writ to prohibit the disclosure. The daughter argued that § 210.140, RSMo Cum.Supp.1983 suspended the privilege or made it inapplicable in this case. In agreeing with the daughter and quashing the writ on its merits, the Court explained the procedural grounds for issuing the preliminary writ:
"It should be noted at the outset that prohibition lies in some instances to prevent judicial violation of statutory inhibitions, though in State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), we held that violation of a statutory provision by a trial court does not always constitute an act in excess of its jurisdiction. The court's order in the instant case would allow discovery of materials privileged under § 491.060(5) RSMo Cum.Supp.1983. Since § 491.060(5) standing alone operates in part to restrict the power of a trial court in the discovery process, see State ex rel. Mehle v. Harper, 643 S.W.2d 643 (Mo.App.1982), it can be said that violation of the statute constitutes an act in excess of jurisdiction. State ex rel. Collins v. Donelson, 557 S.W.2d 707 (Mo. App.1977). See State ex rel. Uregas Service Co., Inc., v. Adams, 262 S.W.2d 9 (Mo. banc 1953)."
State ex rel. D.M. v. Hoester, 681 S.W.2d at 450 n. 3.
[2] To me, these grounds are separate and distinct but not mutually exclusive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565036/ | 691 S.W.2d 357 (1985)
Constance BERGTHOLDT, Amanda J. Bergtholdt, a minor, and Terry John Bergtholdt, a minor, b/n/f Constance Bergtholdt, Plaintiffs-Respondents,
v.
FARMERS INSURANCE CO., INC. Defendant-Appellant.
No. 48227.
Missouri Court of Appeals, Eastern District, Division Three.
April 9, 1985.
Motion for Rehearing and/or Transfer Denied May 17, 1985.
Application to Transfer Denied June 25, 1985.
*358 Daniel J. McMichael, Fitzsimmons & Fitzsimmons, Clayton, for defendant-appellant.
John W. Reid, II, Schnapp, Graham, Reid, Fredericktown, for plaintiffs-respondents.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 1985.
DOWD, Presiding Judge.
Defendant-appellant, Farmers Insurance Co., Inc. appeals from an adverse judgment awarding plaintiffs-respondents $75,000 damages on two insurance policies. Each policy contained uninsured motorist coverage of $25,000 per person and $50,000 per occurrence (25/50). We affirm.
We note our standard of review as that of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Hence, we may reverse the trial court only if its judgment is unsupported by or against the weight of the evidence, or is based on an erroneous declaration or application of the law. Since all material facts of this case have been stipulated by the parties, our review of this appeal is limited to the trial court's conclusions of law.
As for the material facts, Constance Bergtholdt was a passenger in a car driven by her husband, Terrance J. Bergtholdt when it was involved in an accident with a car driven by David J. Meyer. Meyer caused the accident due to his intoxicated condition at the time. As a result, Terrance and two other passengers in the Bergtholdt car died from injuries sustained in the accident. Constance Bergtholdt, who was pregnant at the time, sustained disabling injuries to herself as well as her unborn child. Damages to Constance and her two children[1] were stipulated to be in excess of $100,000.
The Bergtholdts owned two automobiles on which they held insurance policies issued by appellant. Each policy contained *359 uninsured motorist coverage of 25/50. Meyer also held insurance on his automobile which included similar liability coverage of 25/50. Meyer's insurance company settled with Constance Bergtholdt for $25,000 with the remaining $25,000 of coverage paid to the survivors of the other passengers in the Bergtholdt car killed in the accident.
In its judgment, the trial court stacked the uninsured motorist coverage in the Bergtholdt policies. In effect, this gave them coverage of 50/100. The trial court further reduced the coverage by the $25,000 received in the settlement to reach its award of $75,000 for the Bergtholdts against the appellant.
On appeal, appellant contends the trial court erred in concluding that coverage was available to the Bergtholdts from their insurance policies with appellant and that if coverage was still available it was limited to $50,000. Notwithstanding appellant's contentions, this appeal concerns the seminal issue whether Meyer's liability coverage precludes the Bergtholdts' uninsured motorist coverage from taking effect. We believe that it does not.
Initially, appellant argues that the uninsured motorist coverage in its policies should not be stacked to provide 50/100 of coverage. Appellant reasons that the terms of the policy should apply because the coverage stacked is not required by statute; however, § 379.203 RSMo Cum. Supp.1984 mandates the inclusion of uninsured motorist coverage consistent with the provisions of the Motor Vehicle Safety Responsibility Law Chapter 303. Currently, the required coverage consists of $25,000 bodily injury or death of one person in any one accident to a limit of not less than $50,000 bodily injury or death of two or more persons in any one accident. § 303.030.5. Hence, the Bergtholdts' uninsured motorist coverage is statutorily required and does comply with the mandated amount. Stacking uninsured motorist coverage in two different policies has been permitted since Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976) citing with approval Galloway v. Farmers Ins. Co., 523 S.W.2d 339 (Mo.App.1975) from the Western District Court of Appeals.
Unlike the case at bar, in Galloway the negligent motorist carried no liability insurance. Id at 340. However, this factor did not determine whether the uninsured motorist coverage in the two policies may be stacked. Public policy as declared in § 379.203 mandates that when an insured has two separate policies containing uninsured motorist clauses, effect shall be given to both coverages without reduction or limitation by policy provisions, and that both coverages are available to those insured thereby. Cameron Mut. Ins. Co., 533 S.W.2d at 542 accepting the premise of Galloway. As a result, simply by holding a policy on each of their two automobiles, the Bergtholdts carried $50,000 per person/$100,000 per occurrence of uninsured motorist coverage.
As to the effect of Meyer's liability coverage, the law is clear that the uninsured motorist statute has no application in cases where the tortfeasor did have an insurance policy which complied with the requirements of the Motor Vehicle Safety Responsibility Law. Williams v. MFA Mut. Ins. Co., 660 S.W.2d 437, 440 (Mo. App.1983) relying on Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 145 (Mo. banc 1980). Meyer's policy did comply with the mandates of § 303.190.2(2) in that his motor vehicle was insured with 25/50 liability coverage. Thus, the requirements of §§ 379.203 and 303.030 have been satisfied and appellant would have no obligation to pay pursuant to these statutes. However, this does not preclude a contractual obligation to pay pursuant to the terms of their insurance policies with the Bergtholdts.
Under the Bergtholdts' policies, the appellant defined the term "uninsured motor vehicle" in the following clause:
*360 The definition of Uninsured Motor Vehicle under the Uninsured Motorist Coverage is amended to include a motor vehicle where there is bodily injury liability insurance or an applicable bond at the time of accident, but in amounts less than the limits carried by the insured under Uninsured Motorist Coverage (emphasis added).
Basically, this emphasized language expands the concept of uninsured motorist to include an underinsured motorist. Hence, the Bergtholdts uninsured motorist coverage will take effect because Meyer's bodily injury liability insurance of 25/50 is in amounts less than their 50/100 amount of uninsured motorist coverage. Appellant argues that if such is the case their exposure is limited to simply 25/50 due to another provision in their policy. Policy endorsement E-235 reads: "The amount of bodily coverage under the uninsured motorist coverage of this policy shall be reduced by the amount of any other bodily injury coverage available to any party held to be liable for the occurrence." (Emphasis ours). The effect of such an endorsement would be to limit the Bergtholdts' uninsured motorist coverage to 25/50. We disagree.
This court realizes that public policy prohibits anti-stacking and limiting clauses regarding uninsured motorist coverage. Cameron Mut. Ins. Co., supra. Even though Meyer possessed the statutorily required bodily liability coverage, he was an uninsured motorist as defined by appellant's insurance policy. Therefore, E-235 may not limit the Bergtholdts' recovery under the uninsured motorist provisions of their coverage.
The Bergtholdts purchased 50/100 of uninsured motorist coverage which assures them $100,000 maximum protection against losses caused by motorist like Meyer. Since this protection may not be limited through E-235, appellants maximum potential liability remains $100,000. Because Meyer's insurance company paid the Bergtholdts $25,000, appellant's liability is reduced to $75,000.
Judgment affirmed.
CRIST and CRANDALL, JJ., concur.
NOTES
[1] Mrs. Bergtholdt gave birth to Terry J. Bergtholdt on March 1, 1982, six months after the accident. The child was born with birth defects caused by the accident. The Bergtholdts had one other child, Amanda J. Bergtholdt who was also joined as a plaintiff on a wrongful death theory of recovery. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563228/ | 95 F.2d 390 (1938)
CONSOLIDATED EDISON CO. OF NEW YORK, Inc., et al.
v.
NATIONAL LABOR RELATIONS BOARD.[*]
Nos. 177, 178.
Circuit Court of Appeals, Second Circuit.
March 14, 1938.
*391 *392 Whitman, Ransom, Coulson & Goetz, of New York City (William L. Ransom, of New York City, Wesley A. Sturges, of New Haven, Conn., and Pincus M. Berkson, of New York City, of counsel), for petitioners Consolidated Edison Co. and others.
Isaac Lobe Straus, of Baltimore, Md., and Claude A. Hope and Delafield, Thorne & Marsh, all of New York City, for petitioners International Brotherhood of Electrical Workers and others.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, all of Washington, D. C., Samuel Edes, of Philadelphia, Pa., and H. Gardner Ingraham, of Washington, D. C., for respondent.
Louis B. Boudin, of New York City, for Intervener United Electrical & Radio Workers of America, C. I. O.
James J. O'Brien, of Philadelphia, Pa., amicus curiae.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Circuit Judge.
In May, 1937, United Electrical & Radio Workers of America, Local 1212, a labor organization which we shall call United, filed with the National Labor Relations Board a charge that Consolidated Edison Company of New York and its affiliated companies (together referred to as petitioners) were engaging in unfair labor practices. On May 12th the Board issued its complaint against the petitioners. Appearing specially, they challenged the Board's jurisdiction, and moved that the jurisdictional question be decided prior to hearings on the merits. This request was denied. The petitioners then answered, reserving their jurisdictional objections, and hearings were had before a trial examiner designated by the Board. Before the trial examiner had made findings of fact or filed a report, the case was transferred to the Board. On November 10, 1937, the Board issued a cease and desist order based on its finding of violations of section 8(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3). Pursuant to section 10(f), 29 U.S.C.A. § 160(f), the petitioners brought the order to this court for review. A similar petition for review was also filed by the International Brotherhood of Electrical Workers and numerous local unions (together referred to as the Brotherhood). The Brotherhood is affiliated with the American Federation of Labor, while United is connected with the Committee for Industrial Organization. The Brotherhood had not intervened before the Board but regards itself as a "person aggrieved" by provisions of the order which affect it. In its answers to the petitions the Board prays for enforcement of its said order. United has appeared as an intervener in support of the Board's order.
The first question to be considered is that of the Board's jurisdiction. Section 10(a) of the act, 29 U.S.C.A. § 160(a), empowers the Board "to prevent any person from engaging in any unfair labor practice (listed in section 158) affecting commerce." The terms "commerce" and "affecting commerce" are defined in section 2(6) and (7), 29 U.S.C.A. § 152(6, 7). It is not contended that the petitioners are themselves engaged in commerce as so defined. They *393 are local public utility corporations and their production and distribution of electricity, gas, and steam are carried on solely within the city of New York and adjacent Westchester county. The contention of federal jurisdiction over the labor relations of such employers is rested upon the argument that an interruption of their business by an industrial labor dispute would vitally affect commerce, because (1) in producing electric energy, gas, and steam they use large quantities of raw materials originating outside the state of New York, and (2) some of their customers are engaged in interstate or foreign commerce or are instrumentalities of such commerce.
The facts are not in dispute; they were stipulated in great detail. A brief summary will suffice for present purposes. Consolidated Edison Company of New York is both an operating and a holding company; it owns between 90 and 100 per cent. of the voting stock of each of six affiliates, its copetitioners. The parent corporation and each of its subsidiaries, with one exception, is a public utility company within the meaning of the Public Service Law of New York, Consol.Laws, c. 48, and is subject to regulation by the state commission. The one exception is Consolidated Telegraph & Electrical Subway Company, which maintains and leases to others of the petitioners space in subsurface ducts. The petitioners' labor relations are also subject to state regulation under a recent statute, chapter 443, Laws N.Y.1937, unless jurisdiction of the state labor relations board must yield to that of the national board. The petitioners are operated as a unitary system. A few figures will indicate the magnitude of the system's business. In 1936 it supplied 97.5 per cent. of all electric energy sold in New York City, and practically 100 per cent. of that sold in Westchester county; it supplied 55.3 per cent. of the total gas sold in New York City, and is the only utility supplying gas in Westchester county. It is the only central-station steam utility in New York City. Its employees number more than 40,000 and its total pay roll in 1936, including annuities and separation allowances, was nearly $82,000,000. It used almost 5,000,000 tons of coal and more than 114,000,000 gallons of oil in the year 1936. All of the oil and all but an insignificant portion of the coal moved to the petitioners' plants from states other than New York. The out-of-state purchases are made from independent dealers and are delivered by independent carriers. Although the bulk of the petitioners' business, in respect to both the quantity of service and the number of consumers, is supplying electricity and gas for residential and local commercial uses, they also have numerous consumers who are engaged in interstate or foreign commerce. The most striking illustrations of this class of consumers are the railroads. Thus, electric energy supplied to the New York Central, the New York, New Haven & Hartford, and the Hudson & Manhattan is used for the lighting and operation of their passenger and freight terminals and for the movement of interstate trains; and steam supplied to the Pennsylvania Railroad Company is used to operate switches in its tunnel under the Hudson river.
The construction and validity of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., was extensively discussed in 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. As the Chief Justice there pointed out, the act does not impose collective bargaining upon all industry regardless of effects upon interstate or foreign commerce. It purports to reach only what may be deemed to obstruct or burden such commerce. At page 37 of 301 U.S., 57 S. Ct. 615, 624, 81 L. Ed. 893, 108 A.L.R. 1352, the opinion states: "Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. Schechter Corp. v. United States, supra [295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570, 97 A.L.R. 947]. Undoubtedly the scope of this power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government. Id. The question is necessarily one of degree."
Consistently with these principles it can scarcely be doubted that the labor disputes of a local merchant will not normally fall within the Board's jurisdiction, even *394 though some part of his stock in trade originates outside the state or some of his local customers are engaged in interstate commerce. In such a case the closing of the merchant's store by a strike of his employees would undoubtedly affect interstate commerce, but the effects would be too remote and indirect to bring his activities within the range of federal regulation. We need not say whether the same conclusion would follow if the merchant's importations from without the state ran into figures comparable to the petitioners' importations of coal and oil. Nor need we decide whether their importations of raw materials are alone enough to bring them under the Board's jurisdiction. It is the use which some of their customers make of the electric energy and steam purchased from the petitioners that furnishes the Board its main ground for claiming jurisdiction. The petitioners argue that they should not be chargeable for the independent acts of customers whom, by state law, they are compelled to serve. But the problem is not to be approached from the standpoint of vicarious liability. It is to be approached as a question of fact, namely, what will be the result upon commerce of a labor dispute between the petitioners and their employees. Should such a dispute result in interrupting the petitioners' service, the effects upon commerce would be catastrophic. We mention only some of them. Instantly, the terminals and trains of three great interstate railroads would cease to operate; interstate communication by telegraph, telephone, and radio would stop; lights maintained as aids to navigation would go out; and the business of interstate ferries and of foreign steamships, whose docks are lighted and operated by electric energy, would be greatly impeded. Such effects we cannot regard as indirect and remote.
It is true that the local consequences of a cessation of the petitioners' services would be equally, if not more, disastrous. It is argued that considerations of the health, safety, and convenience of the millions of people who live and work in New York City outweigh the national interest in protecting interstate commerce from disruption; that local public utilities have always been regarded as exclusively within the jurisdiction of the states; and that to extend the federal jurisdiction to include them is to obliterate pro tanto our dual system of government, contrary to the admonition of the Chief Justice in the Jones & Laughlin Case. We are not unmindful of the persuasive force of these arguments. Nevertheless, we cannot doubt the power of Congress to legislate with respect to local utilities the disruption of whose service would have a direct effect upon interstate commerce; cf. Appalachian Elec. Power Co. v. National Labor Rel. Board, 4 Cir., 93 F.2d 985; nor can we doubt that the act under consideration was intended to exert federal power under the commerce clause, Const. art. 1, § 8, cl. 3, to the full extent of constitutional limits. This is not to say that all utilities are within the act. "The question is necessarily one of degree." In the case at bar the effect of disrupting service would be of such magnitude and so immediate that we think the petitioners are within the Board's jurisdiction, even though only a small percentage of their total business is used in interstate or foreign commerce.
None of the Labor Board cases decided by the Supreme Court has presented a situation like that at bar. In three of them the Board's order ran against an employer whose business, though local in respect to manufacturing, was plainly interstate in respect to sales of a very large percentage of its manufactured product. 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; National Labor Board v. Fruehauf Co., 301 U.S. 49, 57 S. Ct. 642, 81 L. Ed. 918; National Labor Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 57 S. Ct. 645, 81 L. Ed. 921. In one case the employer was engaged in a business of interstate communication (Associated Press v. National Labor Board, 301 U.S. 103, 57 S. Ct. 650, 81 L. Ed. 953); in others the business was interstate transportation of passengers (Washington V. & M. Coach Co. v. National Labor Board, 301 U.S. 142, 57 S. Ct. 648, 81 L. Ed. 965; National Labor Relations Board v. Pennsylvania Greyhound Lines, 58 S. Ct. 571, 82 L. Ed. ___; National Labor Relations Board v. Pacific Greyhound Lines, 58 S. Ct. 577, 82 L. Ed. ___). We recognize that these cases are not decisive of the case at bar, but we think that the principles they have announced point to the conclusion we have reached.
The petitioners contend that the Board denied them a full and fair hearing *395 according to due process of law. This complaint is based upon four grounds. The first relates to the Board's direction that the proceeding be transferred to it pursuant to Rule 37. The result was that the trial examiner made no intermediate report, as contemplated by Rule 32, and the petitioners had no opportunity to file exceptions to his report as contemplated by Rule 34. Nor were they accorded oral argument before the Board, although it must be presumed that their brief submitted to the trial examiner came to the Board's attention. This procedure is not one likely to inspire confidence in the impartiality of the proceedings. It results in the findings of fact being made by persons who did not see the witnesses a matter which may have farreaching consequences in view of the very limited power conferred upon the courts to review the Board's findings of fact. But, though we do not commend such procedure, we cannot say that it has deprived the petitioners of due process of law. Const. Amend. 14. It is familiar practice for a court to decide issues on testimony wholly taken by deposition; and section 10(c) of the act, 29 U.S.C.A. § 160(c), places upon the Board the duty of stating its findings of fact "upon all the testimony taken." Nor do we think the Board is bound to hear oral argument if it prefers to take a brief. Morgan v. United States, 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288, presented a very different situation.
The second ground of complaint is that the trial examiner permitted amendments, thereby introducing issues which necessitated the presence of an absent party, namely, the Brotherhood. As will appear from subsequent discussion, we do not regard the Brotherhood as a necessary party.
The third ground relates to the examiner's refusal to accept testimony relating to the petitioners' reasons for discharging an employee named Solosy. This will also be discussed later.
Finally, complaint is made that remote hearsay dominated the testimony. This court has already ruled that hearsay is admissible in hearings before the Board. National Labor Relations Board v. Remington-Rand, 2 Cir., 94 F.2d 862, February 14, 1938. Whether some of the hearsay was too remote to be entitled to credence goes to the correctness of the Board's findings rather than to the constitutional validity of its proceedings. For the foregoing reasons the petitioners' contention that they have been denied due process of law is overruled.
We pass now to the merits of the controversy. The Board's findings of fact, conclusions of law, and order are too voluminous to be incorporated in this opinion. The complaint, as amended, charged the petitioners with the following unfair labor practices: (1) The use of undercover operatives to spy upon union activities of employees, in violation of section 8(1), 29 U. S.C.A. § 158(1); (2) the discriminatory discharge because of union activities of six employees, in violation of section 8(3), 29 U.S.C.A. § 158(3); and (3) coercion of their employees in their right to form labor organizations of their own choosing in violation of section 8(1) and (2), 29 U.S. C.A. § 158(1, 2). The Board sustained the charges based on section 8(1) and (3) but dismissed the charge based on section 8(2).
The most important of the charges is the one referring to coercing the employees into joining the Brotherhood. In the latter part of 1933 and the early part of 1934 the petitioners sponsored and assisted in the formation of certain Employee Representation Plans among their employees. They were company-dominated unions. Immediately after the validity of the National Labor Relations Act was sustained by the Supreme Court, Carlisle, who was in charge of the petitioners' labor policy, conferred with Tracy, the international president of the Brotherhood, and on April 16, 1937, Tracy wrote him a letter demanding recognition of the Brotherhood as the representative of its members, and sending a proposed contract. On April 20 Carlisle called a meeting of the chairmen of all the general councils of the Plans and announced that the management could no longer continue financial support to the Plans, but had decided to recognize the Brotherhood. He said that the employees were expected to join the Brotherhood and he referred to it as the "sole bargaining body" for employees of Consolidated Edison Company. On the same date Carlisle replied to Tracy's letter, agreeing to recognize the Brotherhood and to negotiate contracts with it, although at this time the number of its members among the petitioners' employees was insignificant. Shortly thereafter there were set up seven *396 Brotherhood locals, most of the officers of the Plans becoming officers of the locals. During the same period United was endeavoring to gain members among the petitioners' employees. An officer of United wrote Carlisle for a conference, but no answer was made to this letter. Without specifying further details, it will suffice to say that there was ample evidence to support the Board's finding that the petitioners exerted pressure on their employees to join the Brotherhood, while they discouraged membership in United. Between May 28 and June 16 they entered into substantially similar contracts with the seven locals of the Brotherhood. The contracts were introduced by the petitioners in support of a contention that the issue of coercion of employees was thereby rendered moot. The contracts in terms recognized the Brotherhood as the representative of its members and were applicable only to such members. As of June 29, 1937, their membership was 30,000 out of 38,000 eligible employees. Paragraph 1 (f) of the order under review directs the petitioners to cease and desist from "giving effect to their contracts with" the Brotherhood. Strenuous objection to this provision of the order is made both by the petitioners and by the Brotherhood.
They both urge that the Brotherhood was a necessary party to the proceeding if the Board's order is to invalidate these contracts. This contention has been authoritatively determined against them by the recent decision of the Supreme Court. National Labor Relations Board v. Pennsylvania Greyhound Lines, 58 S. Ct. 571, 82 L. Ed. ___, announced February 28, 1938. The order does not run against the Brotherhood. Its presence was not necessary to enable the Board to determine whether the act had been violated or to make an appropriate order against the petitioners.
It is not so clear, however, that invalidating the contracts is an appropriate order against the petitioners. Unlike the Greyhound Lines Case, the Board has here dismissed the charge under section 8(2), 29 U.S.C.A. § 158(2); which forbids an employer "To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." Since the Brotherhood is not dominated, supported, or interfered with by the petitioners, it is not immediately obvious that the employees' right to self-organization will be injured by allowing the contracts to be carried out. Under them, the Brotherhood acts only for its own members, and clause 1(g) of the order restrains the petitioners from recognizing it as the exclusive representative of their employees. Other subdivisions, namely, 1(a), (b), (c), (d), (e), and (h), restrain them from urging their employees to join any labor organization, or interfering with their free exercise of self-organization, or favoring the Brotherhood or any other labor organization. Under these provisions the employees will have complete freedom to join United in preference to the Brotherhood, or to join neither. But the Board concluded that, "in order to establish conditions for the exercise of an unfettered choice of representatives" by the petitioners' employees, the petitioners should be ordered to cease and desist from giving effect to the contracts. We do not think that this conclusion is so unwarranted as to necessitate deleting clause (f) from the order. However, since the Board has found no reason for "disestablishing" the Brotherhood, as was done in the Greyhound Lines Case, it would seem to be entirely lawful for the petitioners and the Brotherhood to make new contracts on behalf of its own members, once the employees have been notified that the old contracts are not binding and that they are free to join or refrain from joining any labor organization; and the new contracts may be on the same terms as the old. We see nothing in the order to prevent that.
The Board has found that the petitioners discharged six employees because of their union activities contrary to section 8(3) of the act, 29 U.S.C.A. § 158(3). Three of the men were discharged November 29, 1935, and two on June 19, 1936. All five were officers or active leaders of Local 103 of the Brotherhood of Utility Employees, which later became affiliated with United. The petitioners presented testimony that these men were discharged because it was necessary to reduce the size of two departments in which they worked; that in making such reductions preference was given to married employees; and that these men were single and were treated no differently than others, both union and nonunion, who were laid off about the same time. The Board rejected this explanation chiefly, it would seem, because other single men with less seniority of service were retained. *397 The question is not whether this court would have reached the same conclusion as the Board, but whether there is evidence to support the Board's findings. Section 10(e), 29 U.S.C.A. § 160(e). We cannot say that the record is wholly barren of evidence to support the charge that they were discriminated against on account of union activities. Hence the order requiring that they be reinstated and made whole for losses sustained by reason of their discharges must stand. This does not mean that the petitioners must employ these five men in addition to their present employees, if the work to be done does not require additions to their force, for the petitioners are at liberty to discharge an equal number of other employees for proper reasons.
The sixth discharge complained of is that of Solosy, who was laid off January 17, 1936. The reason given him was the shutting down of the "A" plant of the Astoria Light, Heat & Power Company. It was in fact shut down. Other employees in his division, of less seniority, were retained. In his case, also, the Board found that in reality his discharge was because of his union activity. Solosy's case differs from the others in that the petitioners were not allowed to introduce certain evidence as to the circumstances surrounding his discharge. This situation arose as follows: The Board unexpectedly completed its proof on June 24, 1937. Counsel for the petitioners was unready to go on and obtained a continuance in order that Messrs. Carlisle and Dean, who were absent from the city, might testify on July 6th. The examiner and the Board (by letter) declined to let any other witnesses testify on that date. Counsel offered two of Solosy's supervisors to testify to the reasons for his discharge and to the fact that the men who were retained in preference to him were better educated and better trained. These witnesses were at hand, their testimony would have been short, and would have entailed no appreciable delay in closing the hearings. It was vital testimony on the issue of the petitioners' motive in discharging him. Denial of leave to introduce it appears to us unreasonable and arbitrary. However, the petitioners have not applied to this court for the taking of additional evidence, as they might under section 10(e), 29 U.S.C.A. § 160(e).
An order of this court may be entered for enforcement of the Board's order.
NOTES
[*] Writ of certiorari granted 58 S. Ct. 1038, 32 L.Ed. ___. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563282/ | 16 So. 3d 203 (2009)
William W. CHASTAIN, individually, and William W. Chastain, P.A., a Florida corporation, Appellants,
v.
The CUNNINGHAM LAW GROUP, P.A., a Florida corporation, Appellee.
No. 2D08-5922.
District Court of Appeal of Florida, Second District.
August 7, 2009.
*204 Gary A. Magnarini of Hicks, Porter, Ebenfeld & Stein, P.A., Hollywood, for Appellants.
Bill Wagner of Wagner, Vaughan & McLaughlin, P.A., Tampa, for Appellee.
WALLACE, Judge.
William W. Chastain, individually, and William W. Chastain, P.A., a Florida corporation (collectively, Chastain), challenge a summary judgment in favor of The Cunningham Law Group, P.A. (the Law Firm), on Chastain's claims for breach of contract and quantum meruit. Because the circuit court erred as a matter of law in granting the summary judgment in favor of the Law Firm, we reverse.
THE FACTS AND PROCEDURAL BACKGROUND
Mr. Chastain was admitted to The Florida Bar in 1974.[1] On July 1, 2003, the Supreme Court of Florida entered an order granting an emergency suspension of Mr. Chastain from the practice of law. The order gave Mr. Chastain thirty days to close out his practice. The late Anthony W. "Tony" Cunningham of the Law Firm was appointed as Mr. Chastain's inventory attorney.[2]
On October 6, 2003, Mr. Chastain and the Law Firm entered into a written agreement relative to certain of Mr. Chastain's cases for which the Law Firm was to assume responsibility. Most, if not all, of the cases were contingent fee matters. The agreement provided, in pertinent part:
6. [The Law Firm] will assume representation of certain cases where clients were represented by [Mr.] Chastain that have not been settled or closed prior to August 1, 2003, and that [Mr.] Chastain will be paid $125.00 per hour as an independent contractor for working on those cases where [the Law Firm] is representing the client per the agreement with client.
7. On those particular contingency fee and hourly rate cases that [Mr.] Chastain has expended time, money and overhead costs prior to August 1, 2003, and has not accepted a fee or has been reimbursed costs, [Mr.] Chastain shall receive as a fee, compensation based on his legal fees generated for legal services performed during the time when he was legally qualified to render legal services in this state (pursuant to Rule 4-8.6, a copy of which is attached hereto and made a part hereof as Exhibit "C:"). [Mr.] Chastain will be paid upon receipt of his invoice to [the Law Firm]. Said sums will be deducted from [Mr.] Chastain's quantum meruit proceeds due [Mr.] Chastain on a case by case basis on contingency fee cases. If the amount paid to [Mr.] Chastain by [the Law Firm] exceeds the amount of the fees recovered, then [Mr.] Chastain remains responsible for the reimbursement of his fees to [the Law Firm]. On hourly rate cases, [Mr.] Chastain will be paid at the hourly rate charged to the clients for law clerk and/or paralegal services.
Thus, under the agreement, the Law Firm was to pay Mr. Chastain compensation at an hourly rate for paralegal work performed by him after the date of the agreement. For work performed before Mr. *205 Chastain's suspension from the practice of law, the Law Firm agreed to pay Mr. Chastain on a quantum meruit basis when the cases concluded. Any payments made for work done at an hourly rate were to be credited against the amounts that might be due Mr. Chastain in quantum meruit for work he had performed before he was suspended. The agreement between Mr. Chastain and the Law Firm was reviewed and approved by The Florida Bar.
Mr. Chastain rendered services to the Law Firm under the agreement until approximately March 1, 2005. For its part, the Law Firm made various payments to Mr. Chastain under the agreement. On March 18, 2005, Mr. Chastain filed with the Supreme Court of Florida an amended petition for disciplinary resignation in accordance with rule 3.-7.12, Rules Regulating The Florida Bar, with leave to seek readmission after five years.[3] The court granted the amended petition on April 7, 2005. In its order, the court noted that disciplinary resignation is tantamount to disbarment. Mr. Chastain's disciplinary resignation was made effective, nunc pro tunc, July 31, 2003.
On June 30, 2006, Mr. Chastain and his professional association filed an action against the Law Firm. Mr. Chastain claimed that the Law Firm had failed to pay him appropriate quantum meruit payments on matters that had settled before March 1, 2005. Mr. Chastain also claimed that the Law Firm had failed to pay him any quantum meruit payments for matters that had settled after March 1, 2005.
Subsequently, the Law Firm moved for summary judgment. In its motion, the Law Firm relied on language from the Supreme Court of Florida's decision in the case of Faro v. Romani, 641 So. 2d 69 (Fla.1994):
We hold that when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.... We further hold, however, that if the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs.
Id. at 71. The Law Firm argued that Mr. Chastain "chose for his own benefit to voluntarily resign from [T]he Florida Bar and thus make it impossible for him to represent his client." Therefore, under the rule of Faro, Mr. Chastain "should be entitled to no fee." The circuit court agreed and entered a summary judgment for the Law Firm.
DISCUSSION
The holding of the Faro decision is not applicable to the facts of this case. In Faro, an attorney who had represented a client under a contingency fee arrangement withdrew from the representation on his own volition before the contingency occurred. Id. at 70. The client obtained new counsel and settled his claim for a substantial amount. Id. Subsequently, the attorney who had withdrawn sought to impose a charging lien on the settlement for his fees and costs arising from the representation. Id. Under these circumstances, the Supreme Court of Florida held that the attorney had forfeited all *206 rights to compensation and was not entitled to a charging lien. Id. at 71.
Unlike the situation in Faro and similar charging lien cases, here Mr. Chastain is not seeking to impose a charging lien on any client's settlement or award. Nor does he seek the recovery of fees against any of his former clients. Instead, Mr. Chastain is seeking to enforce a written contract with the Law Firm, a successor that assumed a number of his pending cases and agreed to pay him a fee based in quantum meruit for the work he had done and the expenses he had incurred in connection with those cases during the period of time that he was authorized to practice law. The Law Firm was fully informed about Mr. Chastain's status as a suspended lawyer when it entered into the agreement, and it sought and obtained approval of the agreement from The Florida Bar. The Law Firm certainly expected to receive benefits from the arrangements that it made with Mr. Chastain, or it would not have entered into the agreement. There is nothing in the agreement providing that Mr. Chastain's disciplinary resignation or disbarment would result in the forfeiture of his contractual rights. Furthermore, the Law Firm does not contend that the conduct which led to Mr. Chastain's suspension and disciplinary resignation had anything to do with any of the cases for which Mr. Chastain seeks compensation under the agreement. Under these circumstances, Faro and similar charging lien cases are simply inapposite. See Sympson v. Rogers, 406 S.W.2d 26, 32 (Mo.1966) (explaining the factors distinguishing cases involving attempts to impose a charging lien on a former client's recovery from a case involving a claim for fees made by the assignee of a disbarred attorney against a successor law firm).
We also note that the circuit court's ruling is inconsistent with several ethics opinions issued by the Professional Ethics Committee of The Florida Bar. Pertinent ethics opinions issued by The Florida Bar approve the payment of fees by an attorney to a lawyer who has been suspended or disbarred for work done on a matter by the other lawyer before his or her suspension or disbarment. See Fla. Bar Prof'l Ethics Comm., Formal Op. 90-3 (1990) (payment of a referral fee); Fla. Bar Prof'l Ethics Comm., Formal Op. 72-16 (1972) (payment to suspended co-counsel); Fla. Bar Prof'l Ethics Comm., Formal Op. 66-20 (1966) (payment of a referral fee); Fla. Bar Prof'l Ethics Comm., Formal Op. 65-21 (1965) (payment of a referral fee). Ethics Opinion 66-20 addresses directly the precise issue posed by this case: "[W]here a lawyer succeeds a disbarred lawyer in representing a client, the successor lawyer may divide the fee with the disbarred lawyer to the extent realistically and fairly earned by the disbarred lawyer for services and responsibility before (but not after) his disbarment." The reasoning underlying these opinions is applicable to fees paid to lawyers like Mr. Chastain whose petitions for disciplinary resignation from The Florida Bar were granted. See Fla. Bar Prof'l Ethics Comm., Formal Op. 90-3 ("This opinion also applies to attorneys who resign from The Florida Bar pursuant to Rule 3-7.11."[4]).
Chastain's counsel cited the pertinent ethics opinions at the hearing on the motion for summary judgment, but the circuit court dismissed them as unauthoritative. We agree that the ethics opinions of The Florida Bar are not controlling; nevertheless, *207 they are persuasive authority and, if well reasoned, are entitled to great weight. See Estate of Schwartz v. H.B.A. Mgmt., Inc., 673 So. 2d 116, 118 (Fla. 4th DCA 1996) (citing Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840, 844 (Fla.1993), approved, 693 So. 2d 541 (Fla. 1997)). We find The Florida Bar ethics opinions cited above to be persuasive and well-reasoned. Moreover, these opinions are in accord with well-reasoned decisions on the subject from courts in other jurisdictions. See Rutenbeck v. Grossenbach, 867 P.2d 36, 37 (Colo.Ct.App.1993); Delbecarro v. Cirignani, 261 Ill.App.3d 644, 199 Ill. Dec. 185, 633 N.E.2d 981, 984-85 (1994); Sympson, 406 S.W.2d at 31-32.
CONCLUSION
For the foregoing reasons, the circuit court erred in entering the summary judgment in favor of the Law Firm. We reverse the summary judgment and remand this case to the circuit court for further proceedings consistent with this opinion.
Reversed and remanded.
WHATLEY and KHOUZAM, JJ., Concur.
NOTES
[1] The facts, which are drawn from the pleadings, affidavits, and documentary evidence in the record, are reviewed in the light most favorable to Chastain as the nonmoving parties against whom summary judgment was entered. Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 258-59 (Fla.2002).
[2] We are informed that Mr. Cunningham died on January 19, 2009.
[3] Rule 3-7.12, Rules Regulating The Florida Bar, was subsequently deleted. See In re Amendments to the Rules Regulating The Florida Bar, 916 So. 2d 655, 687-88 (Fla.2005). Disciplinary resignation has been replaced by the disbarment on consent process. See R. Regulating Fla. Bar 3-5.1(j).
[4] In 1990, rule 3-7.11 was renumbered as rule 3-7.12 (Resignation from The Florida Bar). See The Florida Bar Re Amendments to the Rules Regulating The Florida Bar, 558 So. 2d 1008, 1022 (Fla.1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563296/ | 16 So. 3d 109 (2009)
Susan Smith ODOM
v.
Shane SMITH.
2070758.
Court of Civil Appeals of Alabama.
February 6, 2009.
*110 C. ChaLea Tisdale, Opp, for appellant.
Debbie Lindsey Jared of Jared & Brunson, Elba, for appellee.
THOMAS, Judge.
Susan Smith Odom ("the mother") appeals from the trial court's judgment in favor of Shane Smith ("the father") modifying custody and child support with respect to their two minor children.
Facts and Procedural History
On November 14, 2006, the father and the mother entered into a settlement agreement providing that the parties *111 would have joint legal custody of their two minor children, that the mother would have primary physical custody, and that the father would pay $550 per month in child support. On February 23, 2007, the trial court entered a final judgment of divorce that incorporated the custody and child-support provisions of the parties' settlement agreement. On February 25, the father delivered the children to the mother's home when his visitation period ended. The parties entered into an argument culminating in the children's returning home with the father. A few days later, the parties orally agreed that the children would live with the father and that the mother would exercise the visitation rights in the settlement agreement that were originally granted to the father. The father did not pay to the mother any child support during the time the children lived with him.
On April 11, the father petitioned the trial court to modify its original custody order, requesting that the trial court grant him primary physical custody of the children. In response, the mother moved the trial court to hold the father in contempt for nonpayment of child support. On October 9, the trial court conducted an initial hearing and entered an order returning custody to the mother and establishing a date for a final hearing.
On November 1, the trial court held a final hearing on the father's petition to modify custody and on the mother's motion to hold the father in contempt for failure to pay child support. After hearing evidence ore tenus, the trial court entered an order, which stated in relevant part:
"The [father] shall have sole care, custody and control of the parties['] minor children ... with the [mother] having supervised visitation at all times and places as the parties can agree, until such time as she has a fit place to live with running water and electricity at which time [the mother's] visitation shall be unsupervised ....
"....
"Neither party owes to the other any arrears in child support."
The mother now appeals to this court.
Issues
The mother presents two issues on appeal: (1) whether the trial court erred when it determined that the father did not owe a child-support arrearage and (2) whether the trial court had before it sufficient evidence to support its judgment modifying custody of the parties' two minor children.
Standard of Review
"`When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, we presume that the trial court's decision is correct: "`A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong ....'"'
"Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001) (quoting Ex parte Perkins, 646 So. 2d 46, 47 (Ala.1994), quoting in turn Phillips v. Phillips, 622 So. 2d 410, 412 (Ala.Civ.App.1993)). `This Court reviews questions of law de novo.' Alabama State Bar v. Caffey, 938 So. 2d 942, 945 (Ala.2006) (quoting Tipler v. Alabama State Bar, 866 So. 2d 1126, 1137 (Ala. 2003))."
Ex parte Cleghorn, 993 So. 2d 462, 465 (Ala.2008).
*112 Analysis
First, the mother argues that the trial court erred when it determined that the father did not owe a child-support arrearage because, she argues, "child support becomes a final judgment on the date it is due, and may be collected as other judgments, together with interest," Appellant's brief at 10 (citing Osborne v. Osborne, 57 Ala.App. 204, 326 So. 2d 766 (1976)).
However, "`[a]lthough child support payments are final judgments as of the date they accrue, we have allowed offsets to be made in instances where a child lived with the [noncustodial parent] at the time of accrual and the [noncustodial parent] was able to prove that he made contributions to the child's support.' Lewis v. Winslow, 587 So. 2d 1006, 1008 (Ala.Civ.App.1991) (citations omitted). `The award or denial of a credit against an arrearage is within the sound discretion of the trial court.' Phillippi v. State ex rel. Burke, 589 So. 2d 1303, 1304 (Ala.Civ.App.1991) (citation omitted)."
Thompson v. Thompson, 650 So. 2d 928, 930 (Ala.Civ.App.1994).
"[A]n obligated parent can prove his or her entitlement to a credit equal to the amount of child support due in a specified period by introducing evidence that the child primarily lived with the obligated parent during that period, that the obligated parent provided all of the child's support during that period, and that the custodial parent provided none of it."
Pardue v. Pardue, 917 So. 2d 857, 861 (Ala. Civ.App.2005).
In this case, the father testified that the children had lived with him from February 25, 2007, until the trial court entered its order on October 9, 2007. The father further testified that, during that period, he had provided food, shelter, clothing, and for all the children's other needs and that the only support the mother had provided during that period was the purchase of some school supplies. The mother testified that, during that period, she had purchased for the children school supplies and some clothing of undetermined value. The trial court could have concluded from the evidence before it that the father had provided substantially all the children's support while they lived with him. Therefore, the trial court did not err to reversal when it determined that the father did not owe the mother a child-support arrearage, and its judgment on this issue is due to be affirmed.
Second, the mother argues that the trial court erred when it modified custody by awarding the father primary physical custody of the children.
"[The Alabama Supreme Court's] decision in Ex parte McLendon [,455 So. 2d 863 (Ala.1984),] provides that a party seeking a change in custody must show that the change `will materially promote [the] child's welfare.' 455 So.2d at 865. The McLendon standard is a `rule of repose,' meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption. Ex parte McLendon, 455 So.2d at 865. It is founded on the longstanding principle that `[i]t is the court's duty to scrupulously guard and protect the interests of children. And in the context of child-custody proceedings, the dominant consideration is always the best interest of the child.' Ex parte Fann, 810 So. 2d 631, 638 (Ala.2001)."
Ex parte Cleghorn, 993 So.2d at 468.
"`The [McLendon standard] requires that the party seeking modification prove to the court's satisfaction that *113 material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child.'"
Ex parte McLendon, 455 So. 2d 863, 865 (Ala.1984) (quoting Wood v. Wood, 333 So. 2d 826, 828 (Ala.Civ.App.1976)). In this case, the evidence showed that, at the time of the final hearing, the mother lived in a mobile home that lacked electricity and hot water. The mother would "pop [the children] in the mouth," had difficulty controlling the children's behavior, and the children did not get along with her live-in boyfriend. In contrast, the children had a good relationship with the father and his new wife. The children also earned higher grades in school and had better attendance records after they began living with the father. Additionally, the mother and the father both testified that the children, who were 10 and 13 years old at the time of the final hearing, preferred to live with the father. "Although the child's preference is not controlling, it is an important factor for the trial court to consider in a custody modification case." S.R. v. S.R., 716 So. 2d 733, 735-36 (Ala.Civ.App.1998). The trial court could have found from this evidence that the mother's living situation constituted a material change since the entry of the court's initial custody determination and that a change in custody would "`materially promote [the children's] welfare.'" McLendon, 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So. 2d 444, 445 (1947)). Therefore, we cannot say that the evidence before the trial court failed to support the trial court's judgment so as to render it plainly and palpably wrong, and we affirm the trial court's judgment on this issue as well.
Conclusion
Because we hold that the trial court did not err to reversal when it determined that the father did not owe a child-support arrearage or when it awarded the father primary physical custody of the children, we affirm the trial court's judgment.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/731912/ | 103 F.3d 133
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Derrick D. BOYKINS, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 96-2623.
United States Court of Appeals, Seventh Circuit.
Submitted Nov. 1, 1996.Decided Nov. 14, 1996.
Before BAUER, WOOD, JR., and KANNE, Circuit Judges.
ORDER
1
For the reasons stated in the excellent opinion of the District Court, that judgment is affirmed.
ATTACHMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
2
United States of America,
3
v.
4
Derrick D. Boykins, Defendant.
IP 96-0272-C-M/F
IP 92-0016-CR-03-M/F
5
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
AND DIRECTING ENTRY OF FINAL JUDGMENT
6
This cause is before the court on the defandant's amended motion for relief pursuant to 28 U.S.C. § 2255, on the United States' answer to such motion, and on the defendant's reply to such answer. In addition, the court has before it the files and records in the underlying criminal action, IP 92-0016-CR-03-M/F.
7
Whereupon the court, having reviewed the motion, answer, reply and record, and being duly advised, now finds that the defendant's motion for relief should be denied and this action dismissed. This conclusion rests on the following facts and circumstances:
8
1. Defendant was found guilty of various felonies in this action, including knowingly using and carrying a firearm during and in relation to a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1). His conviction was affirmed on appeal in United States v. Boykins, 9 F.3d 1278 (7th Cir.1993).
9
2. The jury in this action was instructed that it could return a verdict of guilty to the § 924(c)(1) charge only if it found beyond a reasonable doubt that Boykins had committed a drug trafficking crime in violation of the laws of the United States, and that "during and in relation to the commission of the drug trafficking crime, [Boykins] knowingly used or carried a firearm." The jury was further instructed that to sustain its burden of proof that a defendant used a firearm, "[i]t is sufficient if the proof establishes that the firearm was an integral part of the underlying crime being committed." This was explained in the court's final instruction no. 28. It was also instructed that for the Government to sustain its burden of proof that the defendant carried a firearm, it was sufficient if the jury found that the defendant "transported or conveyed the weapon, or had possession of it in the sense that at a given time he had both the power and intention to exercise dominion or control over it." This was also explained in the court's final instruction no. 28.
10
3. Boykins seeks collateral relief pursuant to 28 U.S.C. § 2255. That statute provides for collateral relief from a federal conviction or sentence "upon the grounds that the sentence was imposed in violation of the constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." A defendant is entitled to relief under § 2255 where the error is jurisdictional, constitutional or is a fundamental defect which inherently results in a complete miscarriage of justice. Boyer v. United States, 55 F.3d 296, 298 (7th Cir.), cert. denied, 116 S. Ct. 268 (1995).
11
4. Boykins presents a single claim in support of his motion. His argument is that his § 924(c)(1) conviction cannot stand, following the Supreme Court's decision in Bailey v. United States, 116 S. Ct. 501 (1995). In Bailey, the Court examined the meaning of the term "uses" in § 924(c)(1). This statute provides as follows:
12
Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....
13
18 U.S.C. § 924(c)(1). Bailey holds that "[t]o sustain a conviction under the 'use' prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime." 116 S. Ct. at 505. "Use," the Court said, would include activities such as "brandishing, displaying, bartering, striking with, ... firing or attempting to fire, a firearm," or referring to a firearm so as to intimidate another person. Id. at 508. However, the Court added, the "inert presence of a firearm, without more, is not enough to trigger § 924(c)(1).... A defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds." Id.
14
5. There is no doubt that Bailey will entail re-examination of many federal convictions under § 924(c)(1), United States v. Baker, 78 F.3d 1241, 1243 (1996) ("firearm charges under § 924(c) are a staple of federal court jurisprudence"), and that some of these will not stand. Boykins' case, however, is not among the latter category. The evidence in this case was extensive, and was summarized (in the light most favorable to the government, as was proper) by the Court of Appeals in the following terms:
15
Construed in a light most favorable to the government, the evidence in this case supports a finding of constructive possession. Banks was seated inside a van with a loaded shotgun and additional ammunition on his person. Boykins was within reach of two loaded weapons and was found to possess a large sum of cash and a set of scales commonly used by drug traffickers to measure quantities of narcotics. Also inside the van were a quantity of cocaine, a loaded handgun, and a semiautomatic weapon which had been fired while Banks and Boykins were present. The other two occupants of the van had varying quantities of cocaine on their persons and one possessed a loaded .22 caliber handgun.
16
Boykins, 9 F.3d at 1283.
17
6. Culpability under § 924(c)(1) must be premised on a defendant having "use[d] or carrie[d] a firearm" in relation to a specified species of crime. Boykins is correct that the term "use[d]" in this case in instructing the jury was at best ill-defined for purposes of comporting with Bailey. However, the jury's instructions were that Boykins have "knowingly used or carried a firearm" (emphasis added).
18
a. In Bailey, the Supreme Court did not address the meaning of the term "carry." United States v. Canady, 1996 WL 134302, * 3 (W.D.N.Y.1996).
19
b. A defendant "carries" a firearm when he transports it on or about his person. United States v. Hernandez, 1996 WL 34822, * 3 (9th Cir. Jan 31, 1996). Evidence that a defendant had a firearm "within reach and immediately available for use" in connection with a drug crime will support a conviction for "carrying." United States v. Riascos-Suarez, 73 F.3d 616, 623-24 (6th Cir.1996). In this case, Boykins was a passenger in the front seat of a vehicle, where he was within reach of two loaded weapons and was found to possess a large sum of cash and a set of scales. The other two occupants of the vehicle had varying quantities of cocaine on their persons.
20
c. The foregoing circumstances demonstrate without doubt that Boykins was entirely and properly found culpable under the "carried" portion of 18 U.S.C. § 924(c)(1). This conclusion is supported by the application of Bailey in Baker, 787 F.3d at 1247, where Judge Evans explained that, "at least where a defendant is transporting a weapon within his immediate reach, he may be convicted under § 924(c)(1)."
21
7. This conclusion is not inconsistent with the very recent discussion of a very similar issue in United States v. Thomas and Story, Nos. 95-1612 and 95-2158 (7th Cir. May 31, 1996), at p. 6, where a § 924(c)(1) conviction followed a trial in which the relevant jury instruction was this:
22
A firearm is used during and in relation to a drug-trafficking crime if the circumstances of the case show that firearm facilitated or had a role in the crime by providing a person with the security and confidence to undertake a transaction or series of transactions involving illegal drugs and currency.
23
a. In discussing the analysis which was required by Bailey, and the evidence which was developed at trial, the Court of Appeals in Thomas noted that "[t]he evidence produce at trial was sufficient to sustain the convictions under § 924(c)(1) for 'using or carrying' ..." Thomas, p. 7 (emphasis added). Nonetheless, the Court of Appeals further noted that there was evidence of mere possession, that this would not have supported a guilty verdict under the "use" prong of § 924(c)(1), and that as a reviewing court it was "not convinced that a properly instructed jury would have convicted the defendants of violating [ ] § 924(c)(1)." Id. at 8 (emphasis added). Consequently, the case was remanded for a new trial on the "using or carrying" count.
24
b. Thomas is distinguishable here, not because of the law which is pertinent, but because of different facts. There was no evidence of possession of firearms in this case apart from the evidence of carrying. Thus, the type of pivotal insufficient evidence which may have led to the guilty verdict in Thomas was not present in this case.
25
8. Accordingly, the court finds that Boykins' conviction was not unsupported by sufficient evidence, nor that it was entered in contravention of any applicable law. He is not entitled to relief in this action, and his motion for relief pursuant to 28 U.S.C. § 2255 must be denied. A final judgment consistent with this Entry shall now issue.
26
IT IS SO ORDERED.
27
/s/ Larry J. McKinney
LARRY J. McKINNEY, Judge
United States District Court
Date: JUN 6 1996 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1563358/ | 16 So. 3d 946 (2009)
Olson JOSEPH, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D09-1842.
District Court of Appeal of Florida, Third District.
August 19, 2009.
*947 Olson Joseph, in proper person.
Bill McCollum, Attorney General, for appellee.
Before COPE, LAGOA, and SALTER, JJ.
COPE, J.
This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We address the claim of defendant-appellant Olson Joseph that he is entitled to additional jail time credit.
Pursuant to a plea agreement, the defendant pled guilty to the charges of attempted first-degree murder and other offenses. The plea agreement included a provision that the defendant would receive credit for all jail time previously served. The defendant alleges that he should have been awarded 879 days of jail credit, but was only awarded 789 days.
In the trial court the State argued that the motion was "legally insufficient in that [the defendant] has attached no documents indicating either the amount of credit he has been awarded nor documentation indicating that he has exhausted administrative remedies within the Department." The trial court accepted the State's argument and denied the motion "without prejudice for the defendant to first seek relief from the Department and, failing that, again seek it in this court."
Respectfully, the trial court was incorrect in saying that the defendant was required to attach documents indicating the amount of credit he has been awarded. Apparently the court contemplated that the defendant would attach a document from the Department of Corrections stating the amount of credit the Department had awarded. While this may be helpful, there is no such requirement in the rule. As the Fifth District has explained in an analogous case:
Cases construing Rule 3.800(a) do not impose on criminal defendants the necessity to attach portions of the record supporting their claims for relief. Rather, the burden is placed on trial courts *948 who summarily deny relief sufficiently pled for by convicted criminal defendants to attach portions of the record which establish why the defendant is not entitled to the relief being sought.
Moore v. State, 741 So. 2d 577, 578 (Fla. 5th DCA 1999) (citing Bunch v. State, 622 So. 2d 525 (Fla. 5th DCA 1993)). See generally Hidalgo v. State, 729 So. 2d 984, 985-86 (Fla. 3d DCA 1999).
The trial court also erred by requiring the defendant to exhaust his administrative remedies within the Department of Corrections. The allegation here is that the court's sentencing order failed to give adequate credit for time served. See § 921.161, Fla. Stat. (2003). The defendant is not making any claim that the trial court calculated the time correctly, and that the Department of Corrections incorrectly recorded it. "Pre-sentence jail time is a matter which is within the purview of the circuit court and the failure of that court to make a proper award affects the validity of the sentence imposed." Knox v. State, 692 So. 2d 296, 297 (Fla. 3d DCA 1997).
The defendant also appears to allege that the jailer's certificate under subsection 921.161(2), Florida Statutes, was incorrect. That claim is also cognizable in a Rule 3.800(a) motion. Sanchez v. State, 745 So. 2d 1007, 1008 (Fla. 2d DCA 1999); Nelson v. State, 720 So. 2d 1104, 1105 (Fla. 1st DCA 1998).
Where a claim of this type has been summarily denied, on appeal this court must reverse "unless the record shows conclusively that the appellant is entitled to no relief...." Fla. R.App. P. 9.141(b)(2)(D). In this case there are no attachments to the State's trial court response, or the denial order, demonstrating that the defendant is not entitled to the additional jail time credit. "In a rule 3.800(a) summary denial case, like ones brought pursuant to rule 3.850, records showing the criminal defendant is not entitled to the relief requested should be attached to the order denying relief." Moore, 741 So.2d at 578. Alternatively, it is sufficient if the records are attached to the State's trial court response. See Fla. R.App. P.9.141(b)(2)(A) (postconviction record on appeal includes attachments to the motion, response, reply, order, and rehearing papers).
For the stated reasons, we reverse the denial of jail time credit and remand for further proceedings on that claim. We affirm the denial of the defendant's remaining claim without discussion.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1001740/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AUBREY E. HENRY,
Plaintiff-Appellant,
v.
JEFFERSON COUNTY PLANNING
COMMISSION; SCOTT COYLE,
Commission Member, in his
individual capacity; H. RICHARD
FLAHERTY, Commission Member, in
his individual capacity; PAUL
GRIGER, Commission Member, in
his individual capacity; SAM
DONLEY, Commission Member, in
his individual capacity; JIM KNODE,
No. 99-2122
Commission Member, in his
individual capacity; ERNIE BENNER,
Commission Member, in his
individual capacity; GILBERT PAGE
WRIGHT, Commission Member, in
his individual capacity; LYLE
CAMPBELL TABB, Commission
Member, in his individual capacity;
PAUL J. RACO, Director of Planning
and Zoning, in his individual and
official capacity; JEFFERSON COUNTY;
JEFFERSON COUNTY BOARDOF ZONING
APPEALS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CA-96-40-3)
Argued: April 7, 2000
Decided: June 9, 2000
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Christian Yoder, Harpers Ferry, West Virginia, for
Appellant. Michael Douglas Lorensen, BOWLES, RICE,
MCDAVID, GRAFF & LOVE, P.L.L.C., Martinsburg, West Vir-
ginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Aubrey Henry (Henry) sued Jefferson County, West Virginia, the
Jefferson County Planning Commission, its individual members, and
the Jefferson County Board of Zoning Appeals (collectively the
County), in the United States District Court for the Northern District
of West Virginia, challenging the denial of his application for a condi-
tional use permit to build a townhouse development on property he
owned in Jefferson County. Henry asserted five claims, including a
takings claim, a substantive due process claim, two equal protection
claims, and a procedural due process claim. The district court dis-
2
missed all but the procedural due process claim on the ground of Bur-
ford abstention. With respect to the remaining claim, the district court
granted the County's motion for summary judgment. For reasons that
follow, we vacate the district court's dismissal of the takings claim,
the substantive due process claim, and the two equal protection claims
and remand those claims for further proceedings. However, we affirm
the district court's grant of the County's motion for summary judg-
ment with respect to the procedural due process claim.
I
On July 7, 1988, Jefferson County adopted the Jefferson County
Zoning and Development Review Ordinance (the Zoning Ordinance)
which, among other things, zoned certain areas of Jefferson County
as a Rural-Agricultural District. The purpose of the Rural-
Agricultural District "is to provide a location for low density single
family residential development in conjunction with providing contin-
ued farming activities." Jefferson County, W. Va., Zoning and Devel-
opment Review Ordinance § 5.13 (1990) (amending the original
enactment of July 7, 1988). "A primary function of the low density
residential development permitted within [the Rural-Agricultural Dis-
trict] is to preserve the rural character of the County and the agricul-
tural community." Id. The Zoning Ordinance provides a list of sixteen
permitted uses allowed in the Rural-Agricultural District, see id.
§ 5.7(a), and eight prohibited uses, see id. § 4.4. Uses that are not
expressly permitted, but also not expressly prohibited, are allowed if
the property owner can obtain a conditional use permit from the Jef-
ferson County Planning Commission (the Commission) via the Devel-
opment Review System contained in the Zoning Ordinance. See id.
§ 4.1.
The Development Review System consists of two to four stages:
(1) application for a conditional use permit by the property owner to
the Commission; (2) evaluation by the Commission's staff of the
application, under the point system contained in Article 6 of the Zon-
ing Ordinance, to determine whether the property at issue is better
used for agricultural purposes as opposed to residential, commercial,
or industrial development; (3) if the application receives a numerical
score indicating that the property qualifies for possible residential,
commercial, or industrial development, the Commission's staff holds
3
a compatibility assessment meeting (at which the public is allowed to
comment) to determine the compatibility of the proposed develop-
ment to the "existing areas adjacent to the site" and to the nature of
the zoned district involved; and (4) if any compatibility issues remain
unresolved after the compatibility assessment meeting, the Commis-
sion holds public hearings to discuss the unresolved issues. See id. art.
7, §§ 7.3-7.7. After completion of the requisite stages, the Commis-
sion formally votes to grant or deny the application for the permit. See
id. § 7.6(g).
Pursuant to section 7.6 of the Zoning Ordinance, the compatibility
of the proposed development at issue to the areas adjacent to the site
and to the nature of the zoned district involved is determined by,
among other things, the following criteria: (1) compatibility with fed-
eral, state, and local regulations; (2) similarity of the proposed devel-
opment type (residential, commercial, or industrial) to existing
development types; (3) the adequacy of roads and highways to
accommodate the traffic to be generated by the development; (4) the
present and future transportation patterns in the area; (5) the consis-
tency with land-use plans and regulations of incorporated municipali-
ties immediately adjacent to the proposed development; (6) any
variance which is known to be required at the time the application is
submitted; and (7) all items submitted with the application. See id.
§ 7.6(b).
Henry is the part-owner of 11.69 acres of real property, known as
the Town Run Property (the Town Run Property), located on U.S.
Highway 480 in Jefferson County, West Virginia. In 1994, Henry
developed a plan to build seventy-six townhouses on 9.8 acres of the
Town Run Property, with the remainder reserved for two single-
family dwellings. Of relevance to this appeal, townhouses are not
listed as a permitted or prohibited use in the Rural-Agricultural Dis-
trict. Because townhouse development is not a permitted use in the
Rural-Agricultural District, Henry was required to seek a conditional
use permit in order to proceed with his plan.
On January 25, 1994, Henry filed an application with the Commis-
sion requesting a conditional use permit for the proposed develop-
ment of seventy-six townhouses on the Town Run Property (the
Application or Henry's Application). The Application stated that the
4
development "in many ways conforms to parts of the comprehensive
plan for Jefferson County." (J.A. 66). The Application further stated
that the development would help to "eliminate sprawl by concentrat-
ing 76 units on 9.80 acres of land." Id. The Application indicated that
parts of the Town Run Property were located adjacent to residential
subdivisions.
As required in the Zoning Ordinance, the Commission's staff eval-
uated the Application under the point system contained in Article 6
of the Zoning Ordinance. As a result, the Commission's staff assigned
the Application a total of 39.04 points, which qualified it for a com-
patibility assessment meeting. The Commission's staff held such a
meeting on March 23, 1994, during which neighbors raised concerns
about the proposed townhouse development. Opponents to the devel-
opment expressed concerns about the development's incompatibility
with the surrounding neighborhood and the possible impact on a
nearby stream, wetlands, and an adjacent recreational park.
Taking the neighbors' concerns into consideration, the Commis-
sion's staff formulated an assessment of the Application outlining
twenty-one conditions that, if complied with, would alleviate the
neighbors' concerns. For example, the assessment required Henry to
erect an eight-foot fence along one side of the Town Run Property,
to provide lighting that would not glare onto the adjacent recreational
park, and to provide an area for the pets of townhouse residents to
defecate. Of the twenty-one conditions outlined, Henry only agreed
to comply with five. The Commission's staff, therefore, listed the
remaining sixteen as "unresolved" compatibility issues.
The Commission conducted public hearings on the unresolved
compatibility issues on April 26, 1994, and May 24, 1994. At each
hearing, opponents of the Application voiced concern about, among
other things, the density of the townhouse development and its effects
on traffic, the low-density nature of the Rural-Agricultural District,
sewage, schools, and the use of the adjacent recreational park. At the
close of the May 24, 1994 public hearing, the Commission voted to
deny the Application. The Jefferson County Board of Zoning Appeals
(the Board) affirmed the Commission's decision.
5
Henry appealed the Application's denial to the Circuit Court of Jef-
ferson County, which affirmed. Henry then appealed to the West Vir-
ginia Supreme Court of Appeals, which, on November 21, 1997,
reversed the Circuit Court's affirmance and remanded the case to the
Board for more particular findings of fact. See Henry v. Jefferson
County Planning Comm'n, 496 S.E.2d 239, 242 (W. Va. 1997). On
remand, the Board entered a decision and order on March 19, 1998,
setting forth detailed findings of fact and conclusions of law. Of note,
the Board concluded that "the proposed townhouse project fails to be
compatible with the housing developments in close proximity as a
result of the vast disparity in the relative density. . . and the character
of the housing."1 (J.A. 84). Further, the Board concluded that "the
proposed townhouse project is a high-density multi-family project and
is not in conformity with the purpose of the Rural-Agricultural Dis-
trict." Id. Therefore, the Board denied the Application.
On April 17, 1998, Henry filed a petition with the Jefferson County
Circuit Court seeking review of the Board's March 19, 1998 decision
and order. On August 31, 1998, the Circuit Court affirmed the Board
again. The West Virginia Supreme Court of Appeals subsequently
denied Henry's petition for certiorari of this affirmance.
During the pendency of Henry's state court litigation, he also pur-
sued the present federal court litigation. Specifically, on May 24,
1996, Henry filed this action.2 On November 22, 1996, the district
_________________________________________________________________
1 The Board made a factual finding that Henry's proposed townhouse
development "is located in close proximity to two other housing develop-
ments, Ledge Lowe Estates and Morgana, which consist of single family
homes on lots of 2 acres or more." (J.A. 82).
2 Of relevance to one of Henry's arguments on appeal, on September
19, 1996, over two years after the denial of Henry's Application for a
conditional use permit, the Commission approved a conditional use per-
mit for the Lowe project. The Lowe project proposed to build a confer-
ence center with 174 sleeping rooms and amenities on 70.52 acres. The
Lowe project was located approximately 115 yards across U.S. Highway
480 from the Town Run Property but was zoned in the Residential-
Growth District. "The Residential-Growth District is intended to provide
for a variety of residential uses and densities which can be supported by
central or public water and sewer and adequate roadways and services."
Zoning and Development Review Ordinance § 5.4. Further, the
Residential-Growth District "encourages commercial growth." Id.
6
court stayed its proceedings pending a decision by the West Virginia
Supreme Court of Appeals in the state court litigation. After the West
Virginia Supreme Court of Appeals issued its decision on November
21, 1997, Henry moved to lift the stay and for permission to file an
amended complaint. The district court granted both motions.
Henry's amended complaint alleges the following five claims
based upon the County's denial of the Application: (1) the County
took his property without just compensation in violation of the Tak-
ings Clause of the Fifth Amendment to the United States Constitution
as applied to the States via the Fourteenth Amendment; (2) the
County violated his right to substantive due process under the Due
Process Clause of the Fourteenth Amendment; (3) the Commission
lacked a rational basis for its denial, and therefore, violated the Equal
Protection Clause of the Fourteenth Amendment; (4) the Commission
sought to prevent members of a suspect class from obtaining afford-
able housing, and therefore, violated the Equal Protection Clause; and
(5) the County violated his right to procedural due process under the
Due Process Clause. Given that the state court litigation was still
pending at that time, the County moved to dismiss all five claims on
the ground of Burford abstention.3
On September 24, 1998, based upon the Burford abstention doc-
trine, the district court dismissed, without prejudice, all of Henry's
claims but the procedural due process claim. The County then moved
for summary judgment on that claim, which the district court granted
on July 21, 1999. Henry timely filed this appeal challenging the dis-
trict court's disposition of all of his claims. 4
_________________________________________________________________
3 In Burford v. Sun Oil Co. , 319 U.S. 315 (1943), the Court held that
although a federal district court sitting in equity possesses subject matter
jurisdiction over a civil action, it may, in its sound discretion, refuse to
exercise such jurisdiction in certain circumstances if abstention is neces-
sary to show "proper regard for the rightful independence of state gov-
ernments in carrying out their domestic policy." Id. at 317-18 (quotation
marks omitted).
4 After the district court's dismissal of Henry's takings claim, his sub-
stantive due process claim, and his two equal protection claims, on
March 23, 1999, Henry filed a new complaint in federal district court
reasserting these same claims. This new lawsuit challenges precisely the
same conduct alleged in the dismissed counts but has been stayed pend-
ing the outcome of this appeal.
7
II
We first address Henry's challenge to the district court's dismissal,
based upon the Burford abstention doctrine, of his takings claim, his
substantive due process claim, and his two equal protection claims.
As stated previously, under the Burford abstention doctrine, although
a federal district court sitting in equity possesses subject matter juris-
diction over a civil action, it may, in its sound discretion, refuse to
exercise such jurisdiction in certain circumstances if abstention is
necessary to show "proper regard for the rightful independence of
state governments in carrying out their domestic policy." 319 U.S. at
317-18 (quotation marks omitted). Significantly, a federal district
court's discretionary authority to dismiss a civil action under the Bur-
ford abstention doctrine is limited to civil actions where the relief
sought by the plaintiff is equitable or otherwise discretionary. See
Quackenbush v. AllState Ins. Co., 517 U.S. 706, 728-31 (1996); Front
Royal v. Town of Front Royal, 135 F.3d 275, 282 (4th Cir. 1998).5 We
do note, however, that "Burford might support a federal court's deci-
sion to postpone adjudication of a damages action pending the resolu-
tion by the state courts of a disputed question of state law."
Quackenbush, 517 U.S. at 730-31.
Because Henry has sought only monetary relief with respect to his
takings claim, his substantive due process claim, and his two equal
protection claims, the district court lacked the authority to dismiss
those claims on the basis of the Burford abstention doctrine. Accord-
ingly, we vacate the district court's September 24, 1998 order dis-
missing those claims and remand to the district court for further
proceedings.6
_________________________________________________________________
5 Prior to the Supreme Court's decision in Quackenbush, we held in a
case involving money damages, see Pomponio v. Fauquier County Bd.
of Supervisors, 21 F.3d 1319 (4th Cir. 1994), that "the appropriate course
of action in a Burford abstention case is to dismiss the suit." Id. at 1328.
In dismissing Henry's takings claim, substantive due process claim, and
two equal protection claims, the district court apparently relied upon this
now overruled portion of Pomponio.
6 We note that Henry has refiled these counts in a different case and
that the district court has stayed its proceedings in that case pending the
outcome of this appeal. On remand, the district court maintains the dis-
cretion to manage its docket and consolidate these claims if appropriate,
or stay the present action pending final disposition of the state court pro-
ceedings.
8
III
Henry next argues that the district court erred in granting the Coun-
ty's motion for summary judgment on his procedural due process
claim. We disagree.
In relevant part, the Fourteenth Amendment provides that no State
shall "deprive any person of life, liberty, or property, without due pro-
cess of law." U.S. Const. amend. XIV, § 1. According to Henry, the
Zoning Ordinance deprives him of his property rights with respect to
the Town Run Property without due process of law, and therefore,
violates the Due Process Clause. Specifically, Henry argues the Zon-
ing Ordinance is so vague that it fails to provide a property owner
with sufficient notice and warning as to what requirements must be
met in order to obtain a conditional use permit, thereby affording the
Commission unbridled and unlimited discretion in determining
whether to grant or deny such a permit. As the precise source of this
alleged unbridled and unlimited discretion, Henry identifies what he
characterizes as the Zoning Ordinance's alleged lack of sufficiently
specific criteria to determine the compatibility of the proposed devel-
opment at issue with the areas adjacent to it and to the nature of the
zoned district involved.
The doctrine of vagueness in the due process context is based upon
the notion that the Due Process Clause requires an enactment to pro-
vide individuals with fair notice and warning as to what it requires.
See Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). At
one time, "[t]he idea that excessive vagueness of an enactment vio-
lates due process [was] pretty much limited to criminal and other
penal statutes and regulations." Baer v. City of Wauwatosa, 716 F.2d
1117, 1123 (7th Cir. 1983). That idea, however, has since been
extended to licensing ordinances, see Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499-500 (1982); Baer,
716 F.2d at 1123-24, and zoning ordinances, see Cornerstone Bible
Church v. City of Hastings, 948 F.2d 464, 473 (8th Cir. 1991); Wil-
liams v. City of Columbia, 906 F.2d 994, 998 (4th Cir. 1990).
Whether a challenged statutory enactment is unconstitutionally vague
is a legal question, which we review de novo. See Roach v. West Vir-
ginia Reg'l Jail & Correctional Facility Auth., 74 F.3d 46, 48 (4th
9
Cir. 1996); see also Mason v. Florida Bar, 208 F.3d 952, 955 (11th
Cir. 2000).
In addressing Henry's vagueness challenge, we must determine
whether the challenged portions of the Zoning Ordinance are suffi-
ciently clear "to `give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited,' and to`provide explicit stan-
dards for those who apply them.'" General Media Communications,
Inc. v. Cohen, 131 F.3d 273, 286 (2d Cir. 1997) (quoting Grayned v.
City of Rockford, 408 U.S. 104, 108-09 (1972)); see Village of Hoff-
man Estates, 455 U.S. at 498 (same). In making this determination,
we are mindful that we have previously opined that the amount of dis-
cretion afforded a zoning board in determining whether a particular
land use is permissible is exceptionally high because zoning is an
inherently discretionary system. See AT&T Wireless PCS, Inc. v.
Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307, 316 (4th Cir.
1999); Gardner v. City of Baltimore Mayor & City Council, 969 F.2d
63, 67 (4th Cir. 1992) (recognizing that land-use decisions are a core
function of local government and that subdivision control is an inher-
ently discretionary system). We are also mindful that "[v]agueness
challenges to statutes not threatening First Amendment interests are
examined in light of the facts of the case at hand; the statute is judged
on an as-applied basis."7 Maynard v. Cartwright, 486 U.S. 356, 361
(1988).
Contrary to Henry's argument, we conclude that the Zoning Ordi-
nance contains sufficiently specific criteria to determine the compati-
bility of his proposed townhouse development with the areas adjacent
to the Town Run Property and with the nature of the Rural-
Agricultural District such that Henry is not without sufficient notice
and warning as to the requirements he must meet in order to obtain
the conditional use permit he seeks. Critically, the language and struc-
ture of the Zoning Ordinance leaves no doubt that the granting of a
conditional use permit turns upon whether the proposed development
at issue is compatible with the areas adjacent to the property at issue
and to the nature of the zoned district involved. Logically, the word
"compatible," as used in the Zoning Ordinance, has only one mean-
_________________________________________________________________
7 It is undisputed that the Zoning Ordinance does not threaten Henry's
First Amendment rights.
10
ing: "capable of existing or living together in harmony." The Random
House Dictionary of the English Language 417 (1998); see Webster's
Third New International Dictionary 463 (1986) ("capable of existing
together without discord or disharmony"). Henry has made no argu-
ment suggesting otherwise. Thus, under the Zoning Ordinance, Henry
should not be granted a conditional use permit unless his proposed
townhouse development is capable of existing in harmony with the
areas adjacent to the Town Run Property and with the nature of the
Rural-Agricultural District.
Furthermore, the language and structure of the Zoning Ordinance
leaves a reasonable person no doubt as to the criteria that would be
used in determining whether Henry's proposed townhouse develop-
ment is in harmony with, i.e., compatible with, the areas adjacent to
the Town Run Property and with the nature of the Rural-Agricultural
District. Section 7.6 of the Zoning Ordinance expressly provides that,
in the compatibility assessment meeting, Henry was required to "ad-
dress the compatibility of his project to the existing areas adjacent to"
the Town Run Property. Zoning and Development Review Ordinance
§ 7.6(a). Section 7.6 further specifies eight criteria, which "those who
participate [in the compatibility assessment meeting] should address,
but are not limited to." Id. § 7.6(b).
Section 7.6(b) of the Zoning Ordinance specifies that the compati-
bility of the proposed development is determined by the "[s]imilarity
of proposed development type . . . to existing development types," the
compatibility of the proposed development with federal, state, and
local regulations, the adequacy of roads and highways to accommo-
date the proposed development, the present and future transportation
patterns in the area, the consistency of the proposed development with
land-use plans and regulations of adjacent municipalities, any vari-
ances required, and the relationship of the proposed development to
the Zoning Ordinance's plan for the Rural-Agricultural District. Id.
We emphasize that this last specified criteria provides a clear
benchmark for determining whether Henry's proposed development
is compatible with the purpose and function of the Rural-Agricultural
District. The Zoning Ordinance states that the purpose of the Rural-
Agricultural District "is to provide a location for low density single-
family residential development in conjunction with providing contin-
11
ued farming activities." Id. § 5.13 (emphasis added). Accordingly,
"[a] primary function of the low density residential development per-
mitted within a [Rural-Agricultural District] is to preserve the rural
character of the County and the agricultural community." Id. (empha-
sis added). These statements give a reasonable person notice and
warning that a proposed development such as Henry's, which he does
not dispute is a high-density residential development, would not be in
harmony with, and thus not compatible with, the nature of the Rural-
Agricultural District.
We also know, pursuant to the Zoning Ordinance, that certain uses
are permitted in the Rural-Agricultural District while others are pro-
hibited. Obviously, the more similar a use in a proposed development
is to a permitted use, the more compatible the use will be with the
nature of the Rural-Agricultural District. Thus, where the Zoning
Ordinance specifies as permitted uses single-family dwellings, home
occupations, riding stables, child or elderly care facilities with four or
less individuals, forestry, and small markets for the sale of farm pro-
duce; a reasonable person would have notice and warning that a high-
density multi-family townhouse development is not similar to any
permitted use and would not be in harmony with the nature of the
Rural-Agricultural District.8
Finally, Henry argues that the language in section 7.6, allowing the
Commission to consider other criteria than those specified, provides
"absolutely no guidance or standard as to what other criteria may be
considered." (Appellant's Br. at 40). We disagree. It is clear from the
_________________________________________________________________
8 Henry points to the Commission's grant of a conditional use permit
for the Lowe project, in September 1996, as evidence that the Zoning
Ordinance does not provide sufficient standards for determining compati-
bility. We disagree. First, the Lowe project was located in the
Residential-Growth District, which "is intended to provide for a variety
of residential uses and densities," and "encourages commercial growth."
Zoning and Development Review Ordinance § 5.4. Second, the Commis-
sion considered and approved the application for the Lowe project over
two years after Henry's Application was denied. In sum, the grant of a
conditional use permit to the Lowe project has no relevance to the issue
of whether Henry had fair notice and warning of what requirements he
had to meet to build a townhouse development on the Town Run Prop-
erty in the Rural-Agricultural District in 1994.
12
language of the Zoning Ordinance that the eight specified criteria in
section 7.6(b) are factors to be considered in determining whether
Henry's proposed development is (1) in harmony with the areas adja-
cent to it, i.e., adjacent developments, adjacent roads and highways,
and adjacent municipalities, or (2) in harmony with the nature of the
Rural-Agricultural District, i.e., federal, state, and local laws govern-
ing the Rural-Agricultural District, any variance required by the
Rural-Agricultural District, and the relationship of Henry's proposed
development to the overall Zoning Ordinance. A reasonable person
reading that language would have notice and warning that the Zoning
Ordinance implies that any other criteria the Commission considers
is similar to the specified criteria and addresses whether the proposed
development is in harmony with areas adjacent to it and in harmony
with the nature of the Rural-Agricultural District. See Hughey v.
United States, 495 U.S. 411, 419 (1990) (noting that "the principle of
ejusdem generis [provides] that a general statutory term should be
understood in light of the specific terms that surround it").
In sum, the compatibility criteria specified and clearly implied in
section 7.6 of the Zoning Ordinance, the express purpose and primary
function of the Rural-Agricultural District, and the inherently objec-
tive nature of a compatibility determination is more than sufficient to
provide Henry with sufficient notice and warning as to what require-
ments he must meet in order to obtain a conditional use permit. Thus,
the Zoning Ordinance does not provide the Commission unbridled
and unlimited discretion in determining whether to grant or deny
Henry a conditional use permit as he contends. See Cornerstone, 948
F.2d at 473-74 ("The city council has established the zoning policy
and objectives for each zone and has enumerated a comprehensive list
of permitted uses. . . . The city's statement of objectives, along with
available review procedures, sufficiently constrains the city planner's
discretion."); Williams, 906 F.2d at 998 (holding that a zoning board's
discretion was not unbridled and standardless where the criteria to be
used in deciding whether to grant an exception to the ordinance were
"contained in . . . the City's zoning ordinance and include `adverse
impact of the proposed use on the aesthetic character of the envi-
rons'"). Because we discern no violation of the Due Process Clause
in this case, we affirm the district court's grant of the County's
13
motion for summary judgment with respect to Henry's procedural due
process claim.9
IV
In sum, we hold the district court erred in dismissing, under the
Burford abstention doctrine, Henry's takings claim, his substantive
due process claim, and his two equal protection claims. Accordingly,
we vacate the district court's September 24, 1998 order dismissing
those claims and remand for further proceedings. However, we reject
Henry's procedural due process challenge to the Zoning Ordinance
premised upon the doctrine of vagueness, and therefore, affirm the
district court's grant of the County's motion for summary judgment.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
_________________________________________________________________
9 We note that Henry's procedural due process claim does not directly
attack the Commission's determination that his proposed townhouse
development is incompatible with the existing uses of property adjacent
to the Town Run Property and the purpose and function of the Rural-
Agricultural District. Rather, such an attack is the subject of his substan-
tive due process claim, which we remand for further proceedings without
addressing its merit.
14 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1360506/ | 899 P.2d 977 (1995)
127 Idaho 267
STATE of Idaho, Plaintiff-Respondent,
v.
SHAMA RESOURCES LIMITED PARTNERSHIP, an Idaho Limited Partnership; Lawrence W. McGary, Maranatha Management Corp., an Idaho corporation, Defendants-Appellants.
No. 21137.
Supreme Court of Idaho, Twin Falls, March 1995 Term.
July 26, 1995.
*978 Cantrill, Skinner, Sullivan & King, Boise, for defendants-appellants. David R. King argued.
Alan G. Lance, Atty. Gen., Mary E. Hughes, Deputy Atty. Gen., for plaintiff-respondent. Mary E. Hughes argued.
McDEVITT, Chief Justice.
This is an appeal from a grant of summary judgment in favor of the State of Idaho, Department of Finance (the Department) against Lawrence W. McGary (McGary). The Department alleged that McGary violated the Idaho Securities Act by offering and selling unregistered securities through an unregistered broker-dealer and by engaging in fraudulent activities in the offer and sale of the securities. The Department sought injunctive relief, which was granted by the trial court.
I.
BACKGROUND AND PROCEDURE
Shama Resources Limited Partnership (Shama), located in Ketchum, Idaho, is an Idaho limited partnership involved in mining ventures. McGary and Maranatha Corporation (Maranatha) were general partners in Shama. Shama offered and sold securities in the form of limited partnership interests and promissory notes. The parties agree that the Shama limited partnership interests are securities within the definition of the Idaho Securities Act. I.C. § 30-1402(12). The securities offered and sold were unregistered, and the offerors, Shama and McGary, were not registered broker-dealers.
The Department filed a complaint against Shama, McGary, and Maranatha seeking injunctive relief enjoining these parties from offering and selling unregistered securities by an unregistered broker-dealer and from committing fraud in connection with the sale of securities in violation of the Securities *979 Act.[1] In response, McGary asserted that the offerings and sales of the Shama securities were exempt from registration under the nonpublic offer and limited offer exemptions[2] and that no fraud was committed in the offering or selling of the limited partnership interests.
A default judgment was entered against Shama and Maranatha on January 25, 1991, and the case proceeded against McGary. The Department moved for summary judgment and filed affidavits on its behalf. McGary responded to the motion by filing a response and affidavits on his behalf. Before the trial court, the Department objected to the sufficiency of the McGary affidavits, pursuant to I.R.C.P. 56(e). The Department contended that the affidavits lacked sufficient foundation, that the statements contained in the affidavits would not be admissible at trial, that the affidavits presented information about which the affiants did not have personal knowledge, and that the statements in the affidavits were conclusory.
On January 24, 1994, the trial court rendered its decision granting summary judgment in favor of the Department and granting the permanent injunction against McGary. The injunction prohibited McGary from selling or offering for sale nonexempt, unregistered securities by an unregistered broker-dealer and from engaging in fraudulent activities while engaged in or in connection with the offer, sale, or purchase of any security. The trial court held that, pursuant to I.R.C.P. 56(e), the affidavits filed by McGary were insufficient in that they did not show that the exemption requirements were met with respect to each purchaser and offeree and were conclusory in nature. The trial court determined that the McGary affidavits were not based on personal knowledge, and were impermissibly based on hearsay. Additionally, the trial court determined that the affidavits lacked specific facts and foundation to support McGary's affirmative defenses. The trial court rejected the McGary affidavits and relied exclusively on the affidavits provided by the Department in granting summary judgment for the Department. Based on the affidavits and evidentiary material in the record properly before it, the trial court concluded that McGary failed to present evidence establishing that he qualified *980 for the nonpublic offering or the limited offering exemption from registration under the Securities Act. The trial court also concluded that McGary omitted material facts in connection with the offer and sale of the securities in violation of I.C. § 30-1403. The sole issue on appeal is whether the trial court properly granted summary judgment in favor of the Department. We affirm the decision of the trial court.
II.
STANDARD OF REVIEW
This Court reviews the trial court's ruling on a motion for summary judgment by employing the same standard properly employed by the trial court when originally ruling on the motion. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). Summary judgment is proper "if the pleadings, depositions, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." I.R.C.P. 56(c). The party moving for summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Tingley v. Harrison, 125 Idaho 86, 89, 867 P.2d 960, 963 (1994); Harris v. Department of Health & Welfare, 123 Idaho 295, 298, 847 P.2d 1156, 1159 (1992). Once the moving party establishes the absence of a genuine issue, the burden shifts to the nonmoving party to make a showing of the existence of a genuine issue of material fact on the elements challenged by the moving party. Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 530-31, 887 P.2d 1034, 1037-38 (1994). I.R.C.P. 56(c) requires the entry of summary judgment against a nonmoving party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case and in which that party will bear the burden of proof at trial." Olsen v. J.A. Freeman, 117 Idaho 706, 720-21, 791 P.2d 1285, 1299-1300 (1990) (citing Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). This Court, as well as the trial court in its initial ruling, is to liberally construe the record in favor of the party opposing the motion and draw all reasonable inferences and conclusions in that party's favor. Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994). However, the threshold question before this Court is whether the trial court erred in its determination of the admissibility of the evidence presented in support of or in opposition to the summary judgment motion. See Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 784, 839 P.2d 1192, 1198 (1992).
III.
THE TRIAL COURT PROPERLY REJECTED THE AFFIDAVITS PRESENTED BY McGARY FROM CONSIDERATION FOR SUMMARY JUDGMENT
During the arguments before the trial court, the Department challenged the sufficiency of the affidavits submitted by McGary, pursuant to I.R.C.P. 56(e). The Department claimed that the affidavits presented by McGary were insufficient. According to the Department, the claims made by McGary in his affidavits were conclusory and not within the knowledge of the affiants. The Department asserted that McGary made broad claims about all of the offerees and investors and did not make specific showings for each offeree or investor. The Department claimed that McGary failed to make a showing as to each element of his asserted exemptions, that the affidavits were not based on sufficient foundation, and that the statements contained in the affidavits would not be admissible at trial.
The trial court, in rendering its decision, rejected the affidavits presented by McGary on the grounds that the affidavits contained allegations of essential issues that were insufficient, conclusory, and based on hearsay. The trial court additionally found that the affidavits were not based on personal knowledge and did not set forth specific facts to support McGary's affirmative defenses, as required in I.R.C.P. 56(e).
I.R.C.P. 56(e) provides:
*981 Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of that party's pleadings, but the party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
The requirements of Rule 56(e) are not satisfied by an affidavit that is conclusory, based on hearsay, and not supported by personal knowledge. See Oats v. Nissan Motor Corp. in U.S.A., 126 Idaho 162, 166, 879 P.2d 1095, 1099 (1994); Ivey v. State, 123 Idaho 77, 80-81, 844 P.2d 706, 709-10 (1992). Only material contained in affidavits or depositions that is based upon personal knowledge or that is admissible at trial will be considered by this Court. Harris, 123 Idaho at 298, 847 P.2d at 1159.
The Department, in support of its summary judgment motion, presented affidavits and admissions to establish that McGary offered and sold unregistered securities through an unregistered broker-dealer and that McGary committed securities fraud. In response, McGary submitted affidavits and attached exhibits to establish the existence of a genuine issue on the elements challenged by the Department. The affidavits presented by the Department contain information within the personal knowledge of the affiants and provide sufficient foundation for the assertions contained in the affidavits. The Department's affidavits were properly before the trial court for consideration on summary judgment.
The affidavits presented by McGary, on the other hand, do not meet the requirements of Rule 56(e). Rule 56(e) requires that the affidavits be based on the personal knowledge of the affiants and that the affidavits shall present facts that would be admissible in evidence. I.R.C.P. 56(e). The McGary affidavits were not based upon the personal knowledge of the affiants. The McGary affidavits made generalizations about all of the offerees and investors in Shama and declarations about information supposedly known by the Shama offerees and investors without statements by those individuals. Additionally, the affidavits made suppositions about the beliefs and expectations of other offerees and investors. The McGary affidavits also presented insufficient and nonspecific statements denying that McGary committed securities fraud. These statements were conclusory in nature and were unsupported by any factual basis or foundation. Finally, the McGary affidavits contained statements of hearsay that would not be admissible into evidence. We conclude that because the affidavits were not based on personal knowledge, were insufficient and conclusory in nature, and contained statements of hearsay that would not be admissible into evidence, all in violation of Rule 56(e), the trial court properly rejected the affidavits presented by McGary from consideration when ruling on the Department's motion for summary judgment.
IV.
McGARY FAILED TO ESTABLISH THAT THE OFFERINGS AND SALES OF SHAMA SECURITIES WERE EXEMPT FROM REGISTRATION AND THAT NO FRAUD WAS COMMITTED IN THE OFFERING OR SELLING OF SHAMA'S SECURITIES
We now turn to an analysis of the respective burdens of the parties in light of those affidavits that were properly before the court. The Department, being the moving party, was required to make a showing, through affidavits or other equally reliable evidentiary material, that McGary violated *982 the Idaho Securities Act. See Harris, 123 Idaho at 298, 847 P.2d at 1159. Under the Securities Act, it is unlawful for an Idaho limited partnership to sell its securities in Idaho, unless the securities are registered in Idaho or unless the securities are exempt from registration. I.C. § 30-1416. Additionally, a broker-dealer is prohibited from transacting business under the Idaho Securities Act, unless that person is registered or qualifies for one of the exemptions contained in the Act. I.C. § 30-1406; Kinsela v. Department of Finance, 117 Idaho 632, 633-34, 790 P.2d 1388, 1389-90 (1990). The Department met its burden of showing a violation of I.C. §§ 30-1406, 30-1416 by filing affidavits establishing that McGary offered and sold unregistered securities through an unregistered broker-dealer.
The Department also alleged that McGary committed securities fraud under I.C. §§ 30-1403(2), 1403(3). To establish fraud under I.C. § 30-1403(2), the Department must show that McGary made untrue statements of material fact or omitted any material facts in connection with the sale, offer, or purchase of any security. I.C. § 30-1403(2). To establish fraud under I.C. § 30-1403(3), the Department must show that McGary engaged in an act, practice, or course of business, which operated or would operate as a fraud or deceit upon any person. I.C. § 30-1403(3).
McGary argued that the Department was also required to show intent to establish fraud under the Securities Act. This Court has not previously determined whether the intent to defraud or deceive, scienter, is a required element to establish fraud under the Idaho Securities Act. But cf. Department of Fin. v. Tenney, 124 Idaho 243, 249, 858 P.2d 782, 788 (Ct.App.1993), (holding that detrimental reliance is not required under I.C. § 30-1403) cert. denied, ___ U.S. ___, 114 S.Ct. 1097, 127 L.Ed.2d 411 (1994). We limit our discussion to the provisions of the Securities Act allegedly violated by McGary, I.C. §§ 30-1403(2), (3).
Examining the literal words of the statute and giving the statutory language its plain and literal meaning, as we are required to do, Department of Health & Welfare v. Lisby, 126 Idaho 776, 890 P.2d 727, 730 (1995), we conclude that intent is not an element of securities fraud under I.C. §§ 30-1403(2), (3). The relevant portions of the Idaho Securities Act make it unlawful for any person "to make any untrue statement of a material fact", "to omit to state a material fact", or "to engage in any act, ... which operates ... as a fraud or deceit upon any person." I.C. §§ 30-1403(2), (3). There is nothing in the language of these provisions that indicates scienter is required to establish fraud. I.C. § 30-1403(2) prohibits the acts of omitting statements and making untrue statements of material fact and is not dependent upon the intent of the person committing those acts. I.C. § 30-1403(3), which prohibits any act that operates as to defraud, focuses on the effect of the act and not the intent of the actor. Under I.C. §§ 30-1403(2), (3), it is sufficient that the person engage in those enumerated activities, in connection with the offer, sale, or purchase of a security, to commit securities fraud under the relevant portions of the Idaho Securities Act. See Aaron v. Securities & Exch. Comm'n, 446 U.S. 680, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980) (interpreting sections of the Securities Act of 1933, 15 U.S.C. § 77q(a), which are virtually identical to I.C. § 30-1403(2), (3), and concluding that scienter is not required under those provisions). We conclude that the Department was not required to make a showing of scienter under I.C. §§ 30-1403(2), (3).
The Department met its burden of establishing that McGary committed securities fraud under I.C. §§ 30-1403(2), (3) through the affidavits of investors and offerees who stated that McGary omitted material facts to them about McGary not being a registered broker-dealer and about the Shama securities being unregistered. Once the Department established the absence of a genuine issue of fact as to McGary's violation of I.C. §§ 30-1406, 1416, 1403(2), (3), the burden then shifted to McGary to establish the existence of a genuine issue of material fact on the challenged elements. I.R.C.P. 56(c); see Thomson, v. Idaho Ins. Agency, Inc., 126 Idaho 527, 530-31, 887 P.2d 1034, 1037-38 (1994). McGary is not permitted to "rest *983 upon the mere allegations or denials of [his] pleadings, but [his] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." I.R.C.P. 56(e); Hecla Mining Co., 122 Idaho at 783, 839 P.2d at 1197.
McGary asserted the affirmative defenses of exemption from registration under the Idaho Securities Act pursuant to the nonpublic and limited offering exemptions, I.C. § 30-1435(1), (8). The burden of proving an exemption rests upon McGary, the person claiming the exemption. I.C. § 30-1456; Kinsela, 117 Idaho at 634, 790 P.2d at 1390; Frachiseur v. Mountain View Irrigation Co., Inc., 100 Idaho 336, 338, 597 P.2d 222, 224 (1979). The nonpublic offering exemption applies to securities that are offered or sold in an isolated transaction or pursuant to a private, nonpublic offering. I.C. § 30-1435(1). McGary's claim for exemption from registration under I.C. § 30-1435(1) is based on the offering being private in nature, and not based on an isolated transaction. I.C. § 30-1435(1) does not provide a definition of a nonpublic offering. However, case law has established that a nonpublic offer exists where securities are offered only to those who "possess enough intelligence, information and expertise to make a sound business judgment" or to those who have access to the type of information that would be contained in a registration statement. Frachiseur, 100 Idaho at 339, 597 P.2d at 225 (citing S.E.C. v. Ralston Purina Co., 346 U.S. 119, 124-27, 73 S.Ct. 981, 984-85, 97 L.Ed. 1494 (1953)). The purpose of securities registration is to protect investors by promoting full disclosure of information necessary to make informed investment decisions. Id. Thus, an offering made to persons who are in need of protections of a registration statement and who are not able to fend for themselves, is not a nonpublic offering. Id. To establish a nonpublic offer exemption under I.C. § 30-1435(1), McGary must make a showing that each of the offerees had access to the type of information available in a registration statement such that they did not require the protections of a registration statement.
The second exemption sought by McGary applies to limited offers where the seller reasonably believes that all buyers are purchasing for investment purposes, and that no commission or other remuneration was paid or given directly or indirectly for soliciting any prospective buyer. I.C. § 30-1435(8). A limited offer is one where the offerings are made to not more than ten (10) persons within twelve (12) consecutive months. Id. To establish that the limited offering exemption applies, McGary must make a showing that the offer was limited in nature, that McGary reasonably believed that each of the offerees and purchasers intended their purchase of Shama securities to be for investment purposes, and that McGary received no commission or remuneration for soliciting a prospective buyer.
McGary must also establish the existence of a genuine issue of material fact that he did not commit securities fraud, i.e., that he did not make any untrue statements of material fact, omit any material facts in connection with the offerings and sales of Shama securities, and did not engage in any act which operated or would operated as a fraud or deceit upon any person. I.C. §§ 30-1403(2), (3).
As discussed above, the Department met its burden of showing that no genuine issue existed as to McGary's violation of the Idaho Securities Act when McGary offered and sold unregistered securities through an unregistered broker-dealer. The Department also met its burden of showing the absence of a genuine issue of fact that McGary committed securities fraud in violation of I.C. § 30-1403(2), (3). The affidavits presented by the Department established that some of the Shama offerees and investors were unaware that the Shama securities were not registered and that McGary was not a registered broker-dealer. These misrepresented facts are material to the offerees and investors because the information may have resulted in an alteration of the offerees or investors investment decision.
Once the Department met its burdens, McGary was required to make a showing that a genuine issue of material fact exists on each of the elements challenged by the Department. *984 I.R.C.P. 56(c); see Thomson, 126 Idaho at 530-31, 887 P.2d at 1037-38. The burden of establishing an exemption under the Idaho Securities Act rests with McGary. I.C. § 30-1456; Kinsela, 117 Idaho at 634, 790 P.2d at 1390. As held above, the affidavits presented by McGary violated Rule 56(e) and were not properly before the court for consideration. McGary did not present any other evidence to the trial court in support of his claims. Absent any reliable evidentiary material that would meet the requirements of Rule 56(e), McGary failed to carry his burden under the nonpublic offer and limited offering exemptions. For the same reason, i.e., the lack of any affidavits or other evidentiary material that is properly before the court for consideration, McGary also failed to establish that a genuine issue of material fact exists on the issue of securities fraud.
We conclude that there is no genuine issue of material fact and that summary judgment was properly granted in favor of the Department. Costs on appeal are awarded to the Department.
JOHNSON, TROUT, SILAK and SCHROEDER, JJ., concur.
NOTES
[1] Because this action was initiated in 1989, the 1987 version of I.C. § 30-1416 (1987) and the 1967 versions of I.C. §§ 30-1403, 1406 will be used in the analysis of this case. H.B. 99, 1987 Idaho Sess. Laws, ch. 120, § 3, p. 234; H.B. No. 110, 1991 Idaho Sess. Laws, ch. 270, §§ 2, 4, p. 662. I.C. § 30-1406 (1967) provides:
It is unlawful for any person to transact business in this state as a broker-dealer or salesman, except in transactions exempt under section 30-1435, unless he is registered under this act. It is unlawful for any person to transact business in this state as an investment adviser unless
(1) he is so registered under this act, or
(2) he is registered as a broker-dealer under this act, or
(3) his only clients in this state are investment companies as defined in the Investment Company Act of 1940 or insurance companies.
I.C. § 30-1416 (1987) provides:
It is unlawful for any person to sell or to offer to sell any security in this state, except securities exempt under section 30-1434, Idaho Code, or except securities sold in transactions exempt under section 30-1435, Idaho Code, unless such security is registered by notification, coordination or qualification under this act.
I.C. § 30-1403 (1967) provides:
It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly,
(1) to employ any device, scheme or artifice to defraud,
(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading or
(3) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.
[2] I.C. § 30-1435 was amended in 1991. H.B. 110, 1991 Idaho Sess. Laws, ch. 270, § 14, p. 662. Because this action was commenced in 1989, the earlier version will be used in this case. Under I.C. § 30-1435(1) (1976), "any isolated transaction or sales not involving a public offering" are exempt from the registration provisions of I.C. §§ 30-1406, 1416. I.C. § 30-1435(8) (1976) exempts from registration any transaction pursuant to a limited offering, where the seller reasonably believes that all buyers are purchasing for investment purposes and where no commission or other remuneration is paid for soliciting any prospective buyer. I.C. § 30-1435(8). A limited offering under the provision is one made to not more than ten (10) persons in the state during any twelve (12) consecutive months. I.C. § 30-1435(8). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563341/ | 95 F.2d 461 (1938)
DIXIE-VORTEX CO.
v.
LILY-TULIP CUP CORPORATION.
No. 212.
Circuit Court of Appeals, Second Circuit.
March 7, 1938.
As Modified on Denial of Reargument April 1, 1938.
Edmund Quincy Moses, of New York City (Joseph H. Milans, of Washington, D. C., and Edmund Quincy Moses, of New York City, of counsel), for plaintiff-appellant.
Hans v. Briesen and Milton C. Weisman, both of New York City, for defendant-appellant.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
*462 MANTON, Circuit Judge.
This suit for infringement of the Wessman and Stone patent, No. 1,766,420, issued June 24, 1930, resulted in a decree holding 6 claims (76, 77, 149, 150, 156, 165), out of 26 sued on, valid and infringed; 20 were found either invalid or not infringed. The decree also held the Johnson design patent, No. 74,793, invalid; plaintiff's copyright K, No. 16,169, invalid; the registered trademark No. 301,390 Chily Bear not infringed, and the defendant not guilty of unfair competition.
Defendant appeals from that part of the decree holding the 6 claims valid and infringed. This patent is for a machine making paper drinking cups. It contains thirty pages of specifications and 171 claims, 26 of which were in issue below. The manufacture of paper cups has been developed over a period of many years. The type involved in this litigation is a two-piece cup made consisting of a body blank and the bottom blank. The body blank is so shaped that, when its longitudinal edges are overlapped and united by a line of adhesive, the body will be conical. The bottom blank is a disc which is cupped so as to provide it with a flange standing at about right angles to the central round flat portion of the cup bottom.
In the production of such blanks by machinery, no problem was involved, as many patents of the prior art were available for a machinist to set up instrumentalities which would perform the successive operations to make the composite structure. What instrumentalities were selected for use necessarily depended upon the type of cup to be made. Plaintiff's cup was called the Dixie, with the flanged cup bottom so positioned that in the finished cup it will point in an upward direction toward the mouth of the cup. Mechanism for this construction includes a tapered mandrel, upon the smaller end of which a flanged cup bottom is formed and then held in place by suction until the blank of the cup body, provided with appropriate lines of glue, is wrapped around the mandrel and into contact with the flange of the cup bottom. Later the bottom edge of the cup body is rolled in, and this operation in plaintiff's machine must be so conducted as not to affect the bottom in order that the latter shall not be displaced and cause a leaky condition.
Defendant makes the Gem cup, which is structurally different and requires different instrumentalities for manufacture. In the mechanical construction of defendant's cups, the flanges of the bottom point downwardly and are brought into adhesive connection with the lower part of the body both on the inner and outer face of the flange against which the lower edge of the bottom is folded back and ironed in order to produce a taut condition in the cup bottom, to eliminate wrinkles in the cup flange, and to effect a secure adhesive connection both on the inside and outside of the bottom flange. Therefore, it requires a different type of machine to make defendant's cup.
The patented machine contemplates the formation of the flanged bottom directly upon and against the smaller end of a tapered mandrel, the flanged bottom being held upon the mandrel by air suction.
Defendant's cup bottoms are produced in a die independent of the mandrel. After the flanged bottom has been produced in its die, a plunger advances the formed bottom and deposits it for temporary storage in a recess within the interior of the mandrel where the flanged bottom rests idly until after the cup body has been formed on the outside surface of the mandrel. There is a complete independence in manufacturing the defendant's cup between the cup body and the previously formed cup bottom.
In the patented machine, the operation of forming the cup body around the mandrel involves and includes the application of the gummed edge portions of the body blanks against, upon and around the rearwardly extending flange in the previously formed cup bottom so that the act of forming the cup body on the mandrel is simultaneous with effecting the adhesive union between the cup body and the upstanding flange of the cup bottom. On the other hand, in the defendant's structure, the flanged bottom, after being produced independently of the mandrel, remains deposited within the storage recess in the mandrel so that it can in no wise participate in the formation of the cup during or in connection with the formation of the cup body as is essential in the patented machine. After the body had been made and the mandrel carrying the previously formed cup body is brought to another station, the stored flange bottom is pushed out of its recess into contact, the flange extending forwardly, with the previously shaped body.
When in the plaintiff's machine the bottom is formed on the end of the mandrel *463 and the body is secured to it simultaneously and by the same means which form the body, the cup structure as such is completed, but it is still essential that the relation between the cup body and the cup bottom shall in no way be disturbed. It becomes important, therefore, in the plaintiff's machine that the means relied upon for curling the bottom edge of the cup body should be such that they in no way affect the previously shaped bottom.
The claims (76, 77) here sued on, found in the margin[1], contemplated cylindrical cups as well as conical cups, but they call for nothing which describes any mechanical instrumentality and only a combination of means followed by functional phrases. No mandrel is mentioned, no mechanism for forming and securing the body around the bottom is referred to, nor what kind of means are mechanically required for curling the bottom edge of the body.
Similar cup products were made by the use of the Luellen patent, No. 1,273,891, of the prior art, consisting of a bottom and a body secured around the bottom, the bottom edge of the body being curled beneath the bottom without affecting the bottom. Mechanism appropriate for making cups of this type is shown in the expired patent No. 1,365,517 to Luellen & Wessman. In this latter patent, disk bottoms are first made and stacked in a feeding tube so there are "means for forming a bottom." The bottom is placed against the end of a mandrel and then the conical cup body is placed upon the mandrel and around the bottom associated therewith, and thereupon the bottom edge of the body which projects beyond the bottom is curled over without affecting the shaped bottom where a complete cup is formed. Thus it is clear that claims 76 and 77 were anticipated by the old Luellen and Wessman patent.
Moreover, claims 76 and 77, requiring "means for forming and securing a body around the bottom," call for one means only and not for two independent functioning means. In plaintiff's patent the means which form the body are the same means which secure it around the bottom. In the defendant's structure, the means which form the body have nothing whatsoever to do with the means by which the bottom is subsequently and at a different station associated with the completely formed bottom. Thus defendant's machine does not include means for forming and securing a body around the bottom in one operation as called for by claim 76 and 77.
The Cooley patent, No. 1,199,160 of the prior art, sufficiently taught the defendant uses of a body forming instrumentality and the body folding mechanism of the patent in suit is virtually the same as the corresponding mechanism shown in the Thompson patent, No. 945,875. There was nothing novel about its folding mechanism, nor is there novelty claimed in the patent in suit with respect to the folding mechanism by which the bottom edge of the body is curled beneath the bottom without affecting the previously shaped bottom. Curling instrumentalities as used in the patent are shown in the Luellen and Wessman patent, No. 1,365,517.
These two claims also provide that the cups are made "without affecting the previously shaped bottom." Original claims 107 and 108 were rejected in the application for the patent on the basis of Cooley's patent and then these words were added and the claims allowed as Nos. 76 and 77. Therefore bottom affecting mechanisms such as is shown in Cooley were definitely excluded from the scope of these claims. Defendant does not use means for turning in the bottom edges of the cup bodies in such a way that they will not affect the previously shaped bottom, but defendant uses instrumentalities wherein the previously shaped bottom is very materially affected by an ironing instrumentality which presses the inturned edge of the body against the interior surfaces of the cup bottom flange and at another station inserts ironing instrumentalities to forcibly act upon the bottom to eliminate the triangular space between the flange and the bottom and the inner wall of the cup body, to iron down the wrinkles of the *464 bottom flange, and to perfect the adhesive union between the inside and outside surfaces of the cup flange.
The patent of the prior art (1910) to Thompson, No. 945,876, shows a tapered mandrel, the mechanism for forming the body around the mandrel, the bottom forming mechanism and the bottom curling instrumentalities. The prior patent to Whitney (1913), No. 1,082,836, shows tapered mandrels, the wrapping of the body blanks around these mandrels, the formation of a flanged cup bottom, and the pushing of the cup bottom into place within the cup body and mechanism for turning the bottom edge of the cup bottom. The same instrumentalities are shown in the Taylor patent, No. 1,077,496 (1913), which was a machine for making conical cups. And the Cooley patent, No. 1,199,160 (1916), forms a conical body on a similarly shaped mandrel, wraps the body blank around the mandrel by the use of two folding arms, forms a bottom, positions it within a recess in the forward face of a conical mandrel, and then, when the conical body is in place on the mandrel, pushes the bottom blank out of its recess and into engagement with the lower portion of the body. The bottom edge is then curled.
With this available art any mechanic who desired to manufacture two piece cup machinery could do so without the requirement of inventive thought. Altoona Theatres v. Tri-Ergon Corporation, 294 U.S. 477, 55 S. Ct. 455, 79 L. Ed. 1005.
Claim 165[2] is for producing an arcuate glue line. In a two-piece cup-shaped paper vessel, the shape of the paper blank in a tapered cup, must obviously be arcuate just as the shape must be rectangular in making a cylindrical cup. Arcuate blanks for making conical cups were old in the art. It is apparent that the glue lines necessary for an arcuate blank would be a straight up and down glue line to provide the union between the edges of the cup body and an arcuate glue line which is necessary when a flanged bottom whether the flange bends up or down is to be adhesively united with the inner surface of a conical cup body.
In the patent in suit, the arcuate blank for a paper cup is brought up to a clamp against a rotatable support. This support remains stationary for a sufficient time to permit the paste roller to impress a straight line of glue along one of the straight edges of the blank which ultimately represents the body seam. Then, as the support rotates the blank, a second independent paste applicator comes into action and applies a line of glue to the blank set in from a shorter arcuate edge of the blank which ultimately becomes the bottom of the conical cup. When these lines of glue have been applied to the blank by the plaintiff's two paste rollers, the blank is fed to the mandrel and is wrapped by the old type of mechanism around the mandrel by an operation which in plaintiff's machine applies the arcuate glue line directly against the flange of a previously formed cup bottom which is positioned on the mandrel and ultimately, as the lateral edges of the blank overlap, result in the formation of the body seam. But there was nothing new in this. The Regan patent, No. 1,187,388, positioned his previously formed cup against the forward face of the mandrel and then, by feeding the body blank to the mandrel and rotating the same, he wrapped the body around the mandrel and around the flanged edges of the bottom and ultimately completed the body seam. The body blank was provided with two divergent lines of paste. Each of these lines of paste is in alignment with the shape of the bottom edge and the side edge of the blank respectively. If Regan were followed in connection with the manufacture of the conical cup, all that would be necessary would be to change the shape of the mandrel appropriate to the conical shape of the product to be made, to change the shape of the body blank, and to have the glue lines follow the edges of the paper blank, exactly as they follow the edges of Regan's paper blank. The idea of applying divergent lines of glue to a paper blank in order that such lines of glue may subsequently participate in forming the paper product to be manufactured was old.
The claim calls for a tapered mandrel and means associated therewith for forming *465 a curved edge blank there-around into a similarly tapered body formation, means for furnishing a bottom for said cup body to complete the cup and means for treating the bottom blank so that the bottom and body would be secured together. This was shown in the Cooley patent. This claim, however, requires that the means relied upon to secure together the bottom and the body shall comprise a paste applicator adapted to engage the blank prior to its presentation to the mandrel and that the paste applicator will apply a line of paste on the blank in an arc concentric to the arc of the lower edge of the blank. This claim is invalid, and the suggestion of the court below that the "mere inclusion of an old element with other old elements, does not of itself create doubt as to the validity of this claim" is erroneous. If a patentee has done nothing more than to include an old element with other old elements, the patent is invalid.
Claims 149 and 150[3] provide for an auxiliary air jet to assist in blowing a cup from its mandrel. The claims relate to that part of the plaintiff's machine where after the cup body and bottom have been united and the bottom edge of the body curled, the cup is blown from the mandrel. Instrumentalities used to blow off the cup consist of the customary air jet which blows against the inner surface of the cup bottom and an auxiliary air jet. The auxiliary air jet directs the air through a slit in a vertical upward direction at right angles to the axis of the mandrel. The patent does not disclose where the auxiliary air jet is to be effective with respect to the cup on the mandrel. On one exhibit, the air jet was arranged in a horizontal direction with respect to the axis of the mandrel.
Plaintiff claimed that, without the use of a supplemental air blast, the cup could never be blown from the mandrel. In defendant's machines no auxiliary air jet is used. Experiments had been made to ascertain whether a supplemental air jet might or might not be of advantage. Defendant's factory manager concluded that they were not found to be of any value but rather a hindrance to the work. But experimental use of an auxiliary air jet by the defendant was justified in view of the patent of the prior art to Palmer, No. 1,312,570. Palmer showed an auxiliary air line and shows it in a horizontal position with relation to the mandrel. Palmer says that the use of an additional air blast which he shows "will assist in discharging the article immediately from the form." It is of no importance that Palmer's use was not for a paper drinking cup but for another paper receptacle. The principle and thought are the same. If there be invention in this, Palmer clearly anticipated and these claims are invalid.
Claim 156[4] is for a trip finger automatically giving way to retard the speed of falling cups as they leave the machine. It represents what an ordinary mechanic would think of in obtaining the result desired. Any product ejected from a machine with too great force or at too high speed does damage, and this may be overcome by the obvious method of reducing the speed by interposing a break appliance in the path of the moving object. This claim relates to that part of the machine of the patent in suit called "trip fingers" which are the means near the exit adapted to present a yieldable obstruction in the path of movement of the cup to insure its steady slow delivery. These "trip fingers" do not completely *466 arrest the movement of the cup, but merely retard its speed, "automatically giving way to permit the discharge of the cup." By these means the cup passes completely out of the cage and onto a moving belt without coming to a position of rest, though at reduced speed due to the "trip fingers" which automatically give way at the impact of a cup.
Defendant's mechanism has no such trip fingers as those of the patent in suit or their equivalent. With the defendant's mechanism, finished cups are blown through a gooseneck which is of the type shown in the old Luellen & Wessman patent, No. 1,365,517. The finished cups are blown at a high rate of speed through the gooseneck chute, and, as each cup is blown forward, it stacks itself upon cups previously ejected. Immediately after each cup has been deposited on the stack, a mechanism enters the chute and pushes the cup last deposited and with it the whole of the stack forward a short step equivalent to the space between two adjacent flanges and then retreats from the chute to a position out of the path of the next cup to come over. By these means the stock is advanced step-wise by a pusher and, when sufficient cups have accumulated in the stack, an operator removes the forward portion of the stack and deposits them in cartons. This claim is invalid.
The other claims sued on are 89, 101, 102, 104, 107, 108, 109, 110, 111, 114, 142, 143, 144, 147, 151, 152, 153, 154, 155, and 164. Claims 101, 102, 104, 107, 108, 109, 110, 111, 114, 152, and 153 call for a mandrel used in the formation of the cup, the transfer of a cup thus made from the mandrel to another machine, and finally some other operation upon the transferred cup. Sometimes the other operation is a top curling operation. In other claims it is an operation which mechanically unseats the cup or one which blows the cup away, or in other instances nothing is specified about what is done with the cup except that it is moved from one place to another as in claims 102, 104, 108, 109, 152, and 153.
In claim 102 the mandrel is used for the formation of a cup bottom on the end of the mandrel and a cup body is then formed around the preformed bottom on the mandrel, and this claim calls for "means for discharging the cup from the mandrel, a container adapted to receive the cup from the mandrel, and means for discharging the cup from the container." No operation is apparently performed on the cup after it leaves the mandrel. All that the cup does so far as this claim is concerned is to move around in space. The same is true of claim 108, where, after the cup has been made on the mandrel in a particular way, it is made the subject of "means of seating the cup in the container and means for discharging the cup from the container."
By claims 152 and 153 the cup, after being made on the mandrel, is subjected to air means for delivering it to the seat of a container and to fully insert the cup into the seat. These claims illustrate aggregation. The aggregation condition is made apparent by the patent, for it calls attention to the fact that when the cups leave the mandrel, they are finished products which can be blown directly from the mandrel into the carton that goes to the consumer. Whether it goes into a carton, or whether it is transferred to another machine where the cup has its upper edge rolled, has nothing to do with the machine that makes the cup and combines the flanged bottom with the wrapped cup bottom. It thus appears that claims 101, 102, 104, 107, 108, 109, 110, 111, 114, 152, and 153 are invalid because of the rule against aggregation. Moore v. Saunders, 8 Cir., 247 F. 314; Demco v. Doughnut Machine Corporation, 4 Cir., 62 F.2d 23; Doughnut Corporation v. Joe-Lowe Corporation, 4 Cir., 67 F.2d 135, certiorari denied in both cases 288 U.S. 605, 53 S. Ct. 396, 77 L. Ed. 980.
Claim 89 is not infringed because the defendant does not shape the bottom on the mandrel. It does not form the body around the shaped bottom and secure the latter around the former and has no means for curling the bottom edge of the body. The means for turning in the bottom edge in defendant's machine affects definitely and purposely the shaped bottom, whereas in the plaintiff's machine the bottom must not be disturbed by the operation of curling the bottom edge of the cup.
Claim 147 is not infringed by defendant, for it does not employ any means "relatively effecting the actuation of the clamping and turning mechanism."
Claims 89 and 147 refer to clamping the cup on the mandrel during the bottom curling operation. There was nothing new in holding a cup body upon the mandrel against displacement or movement during the period that some operation is performed on the cup. The Cooley patent disclosed this.
*467 Claims 142 and 143, together with claim 147, refer to the bottom curling operation, and the instrumentalities used in the patent in suit for curling the bottom are the same as those employed in the Luellen & Wessman patent, supra. The effect of the use of these instrumentalities is precisely the same as that which is shown in the Luellen patent, No. 1,993,574. The patentee desired to effect a true curling action as distinguished from a folding or creasing action. In the defendant's machine the bottom is made by means which are not associated with the mandrel and defendant's means are disclosed in the Thompson patent. Claims 142 and 143 are not infringed.
Claims 144 and 151 have to do with forming the bottoms. The instruments used were clearly shown in the Cooley patent, supra. Moreover, the defendant does not infringe but operates on the principle of the Cooley patent, where the bottom is formed independently of the mandrel and is pushed into the completed conical body at appropriate stations situate beyond the body forming station.
Claims 154 and 155 relate to the means for discharging the cup from the top curling mechanism. Discharging cups from a holder or container by air is well known and is illustrated in the Luellen & Wessman patent. There was nothing novel in the idea as such. Powers-Kennedy Corporation v. Concrete Mixing Co., 282 U.S. 175, 51 S. Ct. 95, 75 L. Ed. 278. Moreover, the defendant did not infringe because it had no "gentle ultimate deposit," since its cups were being blown out with force.
Claim 164 provides for a pair of adjacent paste applicators. This was anticipated by the Regan patent. It is sufficient to hold this claim invalid as anticipated.
Therefore, the court below was right in holding claims 101, 102, 104, 107, 108, 109, 110, 111 and 114 invalid, and claims 89, 142, 143, 144, 147, 151, 154 and 155 not infringed.
The design patent to Johnson, No. 74,793, sued on represents a conventional decoration. The patent does not point out any particular feature of novelty in design so that every element of the design is essential. Ashley v. Tatum Co., 2 Cir., 186 F. 339; American Fabrics Co. v. Richmond Lace Works, 2 Cir., 24 F.2d 365. The design is not original with this patentee. These classical figures, complete in every detail, are shown to have been of great antiquity. They appear in their entirety in the 17th Century design, reproduced in "Historical Guide to French Interiors." It was used in china designs as shown by "The American Pottery Gazette." The detailed construction of the festoons in that they are constituted of successive triangular units, is shown to be old and well known as used on furniture, upholstery, and house decorations.
The trade-mark No. 301,390 "Chily Bear" is not infringed by the defendant's "Sunbeam" and "Freezer" cups. The defendant never used the words "Chily Bear" on its product. There is no evidence that the public ever identified plaintiff's cups by reference to the trade-mark "Chily Bear" or that the defendant's cups are purchased on orders calling for "Chily Bear." Defendant's cups are plainly marked "Sunbeam" and "Freezer." There can be no conflict in the public mind between plaintiff's and defendant's product.
A copyrighted print No. 16,169 registered with the Register of Copyrights is said to be infringed. It is not a Patent Office copyright but is a Copyright Office copyright, erroneously applied for in the Copyright Office. The plaintiff had no right under the law to register this print in the Copyright Office and failed to register it in the Patent Office, where it should have been registered. It was correctly held invalid below. Section 3 of the Act of June 18, 1874, 17 U.S.C.A. § 63, was not repealed by the Copyright Act of 1909, as amended, 17 U.S.C.A. § 1 et seq. and is still in force and effect. Jeweler's Circular Co. v. Keystone Co., 2 Cir., 281 F. 83, 26 A.L.R. 571.
Charges of unfair competition are made against the defendant. They are based upon the grounds that the plaintiff was the first to place the festoon decoration upon its cups, and that no competitor has a right to put it on cups decorated similarly, even though there were prior art types of this design. Plaintiff's design is in no way similar to the defendant's, which chose the use of a necklace. As pointed out below, nobody was deceived or confused and there was no palming off of the defendant's goods for those of the plaintiff. It is asserted that price lists, colored blue and yellow, are used by the defendant and that such colors for price lists have been used by the plaintiff. There was ample evidence that there was use of such colors prior to plaintiff's use. Defendant's lists have been consistently *468 yellow and blue and, if they mean anything in combination or by way of identifying the source or origin of the merchandise, they indicate the defendant's rather than the plaintiff's product.
Nor can any unfair competition be laid to similar shapes or sizes or cellophane wrapping or colors of the packaged cups. Moreover, these were used by others prior to plaintiff's use. Other claims of alleged unfair competition such as a label on the 5 and 10 cent packages, the type of paper used for making the cups, and the stock numbers were all well known in the trade and in no way identified the plaintiff's product.
The dispensers used by the defendant form no basis for an unfair competition charge. No one would be confused in the purchase of cups merely because of the use of a similar dispenser. In all this record evidence of confusion of the public as to the origin of the two products is absent and the witnesses called justify the defendant's claim that there was no such confusion.
The decree will be reversed in so far as it holds 6 claims valid and infringed and otherwise affirmed.
Decree modified.
NOTES
[1] 76. In a machine for making paper cups or the like, means for forming a bottom, means for forming and securing a body around the bottom, and means for curling the bottom edge of the body without affecting the previously shaped bottom.
77. In a machine for making paper cups or the like, means for forming a bottom, means for forming a body, and securing the same to the bottom, the bottom being spaced from the lower edge of the body, and means for curling the lower edge of the body beneath the bottom without affecting the previously shaped bottom.
[2] In a machine for forming paper cups comprising a tapered mandrel and means associated therewith for forming a curved edge blank therearound into similarly tapered cup body formation, means for furnishing a bottom for said body to complete the cup, and means for treating the body blank, so that the bottom and body will be secured together, comprising a paste applicator adapted to engage the blank prior to its presentation to the mandrel and means whereby the paste applicator will apply a line of paste on the blank in an are concentric to the are of the lower edge of the blank which is to encompass the bottom.
[3] 149. The combination of a cup supporting mandrel having an apertured portion, means for creating a jet of air through said apertured portion to assist in releasing a cup from the mandrel and blowing the same from the mandrel and other means for delivering a jet of air into the open end of the cup between the same and the mandrel to overcome any back or holding current of air working rearwardly between the mandrel and cup from said first mentioned jet.
150. The combination of a cup supporting mandrel having an apertured portion, means for creating a jet of air through said apertured portion to assist in releasing a cup from the mandrel and blowing the same from the mandrel, and means to overcome any back or holding current of air working rearwardly between the mandrel and the cup.
[4] 156. In a machine of the character described, cup forming means and means for delivering the cup from the machine comprising discharging instrumentalities adapted to cause the cups to travel to the pre-determined point of deposit, guiding means in said path of travel, and means near the exit from said guiding means adapted to present a yieldable obstruction in the path of movement of the cup to insure a steady slow delivery of the cup, said last mentioned means after momentarily tending to retard the cup automatically giving way to permit the discharge of the cup. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563393/ | 16 So. 3d 798 (2009)
Lisa SCHLARB
v.
Davis LEE and Danny Yancey.
2070730.
Court of Civil Appeals of Alabama.
February 13, 2009.
*799 Robert W. Hanson, Albertville, for appellant.
G. Bartley Loftin III and Christopher S. Kuffner of Maynard, Cooper & Gale, P.C., Huntsville; and Dan Warnes of Warnes & Logan, Guntersville, for appellee Danny Yancey.
Joe L. Leak of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for appellee Davis Lee.
THOMPSON, Presiding Judge.
On December 14, 2004, Lisa Schlarb sued Davis Lee, Danny Yancey, and Job Source, LLC, alleging a claim of conversion against all three defendants and a claim of fraud against Lee. Lee, Yancey, and Job Source moved to dismiss Schlarb's claims. On March 22, 2005, the trial court entered an order dismissing Schlarb's conversion claim and allowing her an additional 30 days to provide a more definite statement of her fraud claim. See Rule 9(b), Ala. R. Civ. P. (requiring that all claims alleging fraud "be stated with particularity").
On April 5, 2005, Schlarb filed an amended complaint in which she purported to reassert her claim alleging conversion *800 and stated her fraud claim with more particularity; in restating her fraud claim, Schlarb also alleged a fraud claim against Yancey. On September 22, 2005, Lee and Yancey (hereinafter "the defendants") moved for a summary judgment. On October 31, 2005, Schlarb filed a second amended complaint in which she asserted a breach-of-contract claim against the defendants. On November 21, 2005, the trial court entered an order granting the defendants' September 22, 2005, summary-judgment motion, thereby entering a judgment on Schlarb's fraud claims. The trial court certified that summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., on November 30, 2005, and Schlarb appealed. Our supreme court concluded that the Rule 54(b) certification had not been appropriate, and it dismissed the appeal as having been taken from a nonfinal judgment. Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala.2006).
After the dismissal in Schlarb v. Lee, supra, on February 9, 2007, the defendants filed a motion for a summary judgment on the breach-of-contract claim Schlarb had asserted in her second amended complaint, and Schlarb opposed that motion. The trial court entered an order on March 26, 2007, in which it denied the defendants' motion for a summary judgment on Schlarb's breach-of-contract claim.
On November 29, 2007, Lee filed a motion for a partial summary judgment in which he argued that Schlarb's claim for damages made pursuant to her breach-of-contract claim should be limited as prescribed in § 10-8A-701, Ala.Code 1975, which governs the "[p]urchase of [a] dissociated partner's interest" under the Uniform Partnership Act, § 10-8A-1 et seq., Ala.Code 1975. Yancey then renewed his motion for a summary judgment on Schlarb's breach-of-contract claim.
On February 21, 2008, the trial court entered a summary judgment in favor of Yancey "on all issues," although the only claim that remained pending against Yancey at that time was the breach-of-contract claim. On that same date, in a separate order, the trial court entered a partial summary judgment in favor of Lee, determining that any damages Schlarb might seek on her breach-of-contract claim against him must be limited "as set out in said motion for a summary judgment," i.e., pursuant to § 10-8A-701. On March 28, 2008, the trial court, ex mero motu, certified its two February 21, 2008, summary-judgment orders as final pursuant to Rule 54(b), and Schlarb appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.
"`Ordinarily, an appeal can be brought only from a final judgment.'" North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So. 3d 342, 344 (Ala.2008) (quoting Grantham v. Vanderzyl, 802 So. 2d 1077, 1079 (Ala.2001)). Although the trial court in this case certified the summary-judgment orders from which Schlarb appeals as final pursuant to Rule 54(b), not every order is sufficiently final so as to render a Rule 54(b) certification appropriate. Goldome Credit Corp. v. Player, 869 So. 2d 1146, 1147 (Ala.Civ.App.2003). In fact, Rule 54(b) certifications should be made only in exceptional circumstances. Id. Our supreme court has explained:
"This Court looks with some disfavor upon certifications under Rule 54(b).
"`It bears repeating, here, that "`[c]ertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.'" State v. Lawhorn, 830 So. 2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So. 2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust *801 Bank of Dothan, N.A., 514 So. 2d 1373 (Ala.1987)). "`"Appellate review in a piecemeal fashion is not favored."'" Goldome Credit Corp. [v. Player, 869 So. 2d 1146, 1148 (Ala.Civ.App.2003)] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So. 2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So. 2d 226, 229 (Ala.Civ. App.1996)) (emphasis added).'
"Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala.2004). Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court `"are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results."' Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So. 2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987))."
Schlarb v. Lee, 955 So.2d at 419-20.
Schlarb's claims in this litigation are based upon her allegations that she has a 17% interest in Job Source, of which Lee and Yancey are shareholders. In her initial complaint, Schlarb alleged that Lee, Yancey, and Job Source had converted her ownership interest in Job Source by unlawfully terminating her employment with Job Source. In her original complaint and in the first amended complaint, Schlarb alleged that the defendants had fraudulently represented to her that she would receive a 17% ownership interest in Job Source but that they had never transferred that interest to her. In her second amended complaint, Schlarb alleged that a contract existed between her and the defendants and that the defendants had breached that contract by excluding her from "the business of Job Source."
In Schlarb v. Lee, supra, our supreme court summarized the facts supporting its determination that a Rule 54(b) certification of the November 21, 2005, summary-judgment order was not appropriate as follows:
"The essence of both Schlarb's fraud claim and her breach-of-contract claim is that Lee and Yancey agreed to, but did not, give her an ownership interest in Job Source. Before this Court, in arguing that she had an interest in Job Source sufficient to support her claim of conversion, Schlarb relies, in substantial part, upon her alleged discussions with Lee and Yancey concerning the division of ownership in Job Source. Under these circumstances, we conclude that, in the interest of justice, Schlarb's fraud and conversion claims should not be adjudicated separately from the beach-of-contract claim."
Schlarb v. Lee, 955 So.2d at 420.
The posture of the litigation giving rise to this appeal with regard to Lee is essentially the same as it was in Schlarb v. Lee. At the time of the appeal in Schlarb v. Lee, Schlarb's breach-of-contract claim remained pending in the trial court. Currently, Schlarb's breach-of-contract claim against Lee remains pending; in its February 21, 2008, summary-judgment order, the trial court concluded only that Schlarb's damages on the breach-of-contract claim were due to be limited.[1] Our supreme court has already determined that the breach-of-contract claim "should not be adjudicated separately" from the other claims. Schlarb v. Lee, 955 So.2d at 420. "`It is well established that on remand the issues decided by an appellate court become the "law of the case," and *802 that the trial court must comply with the appellate court's mandate.'" Southern United Fire Ins. Co. v. Purma, 792 So. 2d 1092, 1094 (Ala.2001) (quoting Gray v. Reynolds, 553 So. 2d 79, 81 (Ala.1989)). Thus, we must conclude that the trial court erred in certifying its partial summary judgment in favor of Lee as final pursuant to Rule 54(b). Schlarb v. Lee, supra; Southern United Fire Ins. Co. v. Purma, supra.
The February 21, 2008, summary-judgment order in favor of Yancey disposed of the breach-of-contract claim, the sole remaining pending claim against Yancey. Assuming, without deciding, that the dismissal in Schlarb v. Lee, supra, controls under the theory of law of the case, we conclude that the Rule 54(b) certification of the summary judgment in favor of Yancey was ineffective. With regard to her breach-of-contract claim, Schlarb has alleged, among other things, that both defendants' actions created an implied contract to provide her an interest in Job Source and that both defendants breached that contract. Thus, the factual allegations that give rise to the breach-of-contract claim against each defendant are closely intertwined and cannot be separately adjudicated. Schlarb v. Lee, supra. Accordingly, we conclude that the breach-of-contract claim against Yancey "should not be adjudicated separately from the breach-of-contract claim" against Lee. Schlarb v. Lee, 955 So.2d at 420. Rule 54(b) certifications should be entered only in exceptional cases. Goldome Credit Corp. v. Player, supra; Parrish v. Blazer Fin. Servs., Inc., 682 So. 2d 1383, 1385 (Ala.Civ.App.1996). The facts of this case are not so exceptional as to warrant a Rule 54(b) certification of the summary-judgment order in favor of Yancey. First Southern Bank v. O'Brien, 931 So. 2d 50, 53 (Ala.Civ.App.2005); Brooks v. Hale, 870 So. 2d 748, 750 (Ala.Civ.App.2003).
The trial court erred in entering its March 28, 2008, order certifying the February 21, 2008, summary-judgment orders as final pursuant to Rule 54(b). Therefore, this appeal is taken from nonfinal orders, and it must be dismissed. Hammock v. Wal-Mart Stores, Inc., 8 So. 3d 939, 942 (Ala.2008); North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d at 346; and Schlarb v. Lee, 955 So.2d at 420.
APPEAL DISMISSED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] We do not reach the issue of the correctness of that ruling. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563394/ | 558 S.W.2d 65 (1977)
Ivy WILBORN, Appellant,
v.
TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
No. 8823.
Court of Civil Appeals of Texas, Amarillo.
October 31, 1977.
Rehearing Denied November 28, 1977.
*66 Brown & Brown, Phil Brown, Lubbock, for appellant.
Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellee.
DODSON, Justice.
This is a case under the Workman's Compensation Act to mature an award of the Industrial Accident Board.
Ivy Wilborn, the appellant-employee, brought suit in the 99th District Court of Lubbock County, Texas against Texas Employers' Insurance Association, the appellee-insurer, to mature an award of the Industrial Accident Board while an action by the appellee-insurer to set aside the same award was pending in the 72nd District Court of Lubbock County, Texas.
The appellant-employee filed a motion for summary judgment in the action to mature the award in the 99th District Court, and likewise, the appellee-insurer filed its motion for summary judgment in the same action.
The court denied appellant-employee's motion, sustained appellee-insurer's motion, and entered judgment in favor of the appellee-insurer. From this judgment the appellant-employee appeals to this Court. We affirm the action of the trial court.
The appellant brings two points of error to this Court. In the first, he complains that the court erred in overruling his motion for summary judgment since the award of the Board was final as a matter of law. And in the second point, he complains that the court erred in granting the appellee's motion for summary judgment since "a genuine issue of a material fact existed and ..." appellee "was not entitled to a judgment as a matter of law." These points lead us first to determine if, as a matter of law, the appellee has complied with the applicable provision of § 5 of art. 8307 V.A.C.S. in its suit to set aside the award of the Board which is pending in the 72nd District Court of Lubbock County, Texas.
Section 5 of art. 8307 provides in part as follows:
... Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision, ... If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto; ... (Emphasis added.)
and § 5a of art. 8307 provides in part as follows:
In all cases where the board shall make a final order, ruling or decision as provided in the preceding section and against the association, and the association shall fail and refuse to obey or comply with the *67 same and shall fail or refuse to bring suit to set the same aside as in said section is provided, then in that event, the claimant in addition to the rights and remedies given him and the board in said section may bring suit where the injury occurred, upon said order, ruling or decision. (Emphasis added.)
This section clearly states that a suit to mature the award of the Industrial Accident Board will lie only when the Insurer either fails to pay the award or fails to bring suit to set aside the same as provided in § 5 of art. 8307, supra.
This conclusion is supported in Fidelity Union Casualty Co. v. Klatt, 47 S.W.2d 417 (Tex.Civ.App.El Paso 1932, writ dism'd) where the Court said at p. 419 as follows:
Section 5 and 5a of article 8307, of our statutes, makes available to a claimant the right to sue to mature the award in the event only that the insurer has not duly given the notice and filed suit to set aside the award of the board. Where the notice is given and suit was filed, a claimant's suit to mature the award is improper and should be stricken on exception. (Emphasis added.)
Cases to the same effect are: Aetna Insurance Company v. Spradley, 446 S.W.2d 941 (Tex.Civ.App.El Paso 1969, no writ); Hardware Mutual Casualty Co. v. Clark, 360 S.W.2d 921 (Tex.Civ.App.Waco 1962, writ dism'd); Federal Underwriters Exchange v. Read, 138 Tex. 271, 158 S.W.2d 767 (Tex. Comm'n App. 1942, opinion adopted).
The Commission of Appeals in the early case of Ocean Accident & Guaranty Corporation v. May, 15 S.W.2d 594 (Tex. Comm'n App. 1929, jdgmt adopted) established the requirements necessary to comply with § 5 of 8307, supra. The Commission said as follows:
The Court of Civil Appeals seems to lay stress on the provision of section 5 of article 8307, R.C.S. 1925, which provides: "If any party to any such final ruling and decision of the board, after having given notice as above provided, fails within said 20 days to institute and prosecute [italics ours] a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto," etc.
In our opinion the filing of the petition with the clerk of the proper court, with the bona fide intention that process shall be issued and served at once, is all that is necessary to comply with the statute. It is true that the statute says that if the party fails to institute and prosecute the suit within 20 days the ruling and decision of the board shall be final; but we think that the party appealing from the rulings and decision of the board has complied with this statute when he files his petition in the proper court with the bona fide intent that citation shall issue and be served at once upon the defendants. Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645. We think further that the word prosecute used after the word institute, in the statute means nothing more than as above held by us. This interpretation is fully justified and substantiated by the provisions appearing in the same article before the above-quoted provision, to the effect, "and he shall within twenty days after giving such notice bring suit in the county where the injury occurred," etc. In other words, the provision, "institute and prosecute," and the words "bring suit," as used in section 5 of article 8307, R.C.S. 1925, means the same thing. There is no showing that the Guaranty Corporation did anything to delay the issuance or service of citation herein. (Emphasis added.)
Thus, we can paraphrase the above quoted language as follows: that the appellee "appealing" from the ruling and decision of the Board has complied with this statute when it filed its petition in the 72nd District Court of Lubbock County, Texas with the bona fide intent that citation shall issue and be served at once upon the appellant. Cases to the same effect are: Traders & General Ins. Co. v. Spillers, 88 S.W.2d 738 (Tex.Civ.App.Fort Worth 1935, writ ref'd); Roberts v. Ohio Casualty Insurance Company, 256 F.2d 35 (5th Cir. 1958); Maryland Casualty Co. v. Jones, 73 S.W.2d *68 668 (Tex.Civ.App.Amarillo 1934), affirmed, 129 Tex. 392, 104 S.W.2d 847 (Tex. Comm'n App. 1937, opinion adopted); and Buffalo Insurance Company v. McLendon, 402 S.W.2d 559 (Tex.Civ.App.Texarkana 1966, no writ).
A review of the record before us reveals material and undisputed facts as follows: that the Industrial Accident Board made its final award on appellant's claim on May 28, 1976; that within twenty days from May 28, 1976 appellee gave the Board notice of its intent to appeal the award; that the appellee filed its suit to set aside the award on June 25, 1976 which was within twenty days from the day of notice of appeal; that on June 25, 1976 such suit was filed in the 72nd District Court of Lubbock County, Texas; that appellant's alleged injury and claim arose in such county; that appellee caused the District Clerk to issue citation for service of the appellant on the same day it filed its suit to set aside the award; that the sheriff of Lubbock County, Texas returned the citation for service on June 28, 1976 with the notation "Left Lubbock about two months ago. Destination unknown."
These facts are sufficient, as a matter of law, for us to conclude that the appellee has complied with the requirements of § 5 of 8307, supra, to perfect its appeal to set aside the award of the Industrial Accident Board.
However, this conclusion is further supported by other undisputed facts. Before the appellee filed its suit to set aside the award, its attorneys called the attorney representing the appellant and requested waiver of citation of service. This request was refused. Then the appellee's attorneys requested service of the appellant at a Lubbock address at the time suit was filed in the 72nd District Court. On June 17, 1976 the appellant's attorneys filed suit in County Court at Law No. 2, in Lubbock County, Texas to appeal an award of the Industrial Accident Board on another and different claim against the appellee. The appellee answered this claim on June 28, 1976. The appellee's attorneys arranged with appellant's attorneys to take the deposition of appellant on July 23, 1976 and use such deposition in both cases. The appellee's attorneys intended to again attempt service on the appellant at such deposition. However, one of the appellant's attorneys informed the appellee's attorneys that he did not know the whereabouts of the appellant, so the attorneys agreed to postpone the deposition. Then, one of appellee's attorneys served notice on appellant's attorneys to take the oral deposition of the appellant in the cause pending in the County Court at Law No. 2. October 27, 1976 was the date set for this deposition. The appellee's attorneys appeared for the deposition, but neither the appellant nor his attorneys appeared. The next day the appellant through the same attorneys filed this suit in the 99th District Court of Lubbock County, Texas.
These facts affirmatively establish appellee's continuing intent to prosecute its suit to set aside the award.
Therefore, we determine that the appellee has complied with the applicable provisions and requirements of § 5 of art. 8307, supra, in its suit in the 72nd District Court of Lubbock County, Texas to set aside the award of the Industrial Accident Board; that appellant's action to mature the award does not lie; that the court properly overruled appellant's motion for summary judgment; and that appellant's first point of error in this Court is overruled.
In appellant's second point he complains that the trial court erred in sustaining the appellee's motion for summary judgment because "a genuine issue of a material fact existed." In his brief appellant contends that the appellee has not shown its use of due diligence to obtain service on the appellant.
In support of this position, he cites cases construing the general statutes of limitation; however, these cases are not applicable, similar or analogous to the facts or circumstances of this case. Maryland Casualty Company v. Jones, 129 Tex. 392, 104 S.W.2d 847, 849 (1937).
*69 Again, in Ocean Accident & Guaranty Corporation v. May, supra, the court said: "There is no showing that the Guaranty Corporation did anything to delay the issuance or service of citation herein." (Emphasis added.) To the same effect are Traders & General Ins. Co. v. Spillers, supra, where citation was not issued for some three and one-half months after the suit was filed; and Buffalo Insurance Company v. McLendon, supra, where citation was not issued for some 33 days after the suit was filed.
On appellee's suit to set aside the award, there is no showing that the appellee did anything to delay the issuance of service. The facts show the contrary. Citation was issued on the day the suit was filed and returned three days later.
And, likewise, there is no showing that the appellee did anything to delay service on the appellant. Again, the facts reveal the contrary. The delay in service was occasioned by the absence of the appellant. The appellant's attorneys said they did not know of appellant's whereabouts. The sheriff reported he "Left Lubbock two months ago. Destination unknown." The appellee's attorneys made two attempts to obtain the presence of the appellant for deposition and service, the last of which was the day before this suit was filed to mature the award. There is no showing that the absence of the appellant was caused or instigated by the appellee.
The 72nd District Court of Lubbock County, Texas acquired jurisdiction of the subject matter in controversy by operation of law when appellee filed its suit to set aside the award. See: Texas Reciprocal Insurance Association v. Leger, 128 Tex. 319, 97 S.W.2d 677 (1936); Lowery v. Transport Insurance Co., 451 S.W.2d 595 (Tex. Civ.App.Austin 1970, no writ); and the cases therein cited at page 596.
From the record before us in this case and for the reasons stated herein, we hold, as a matter of law, that the appellee has complied with the applicable provisions and requirements of § 5 of 8307, supra, in its suit in the 72nd District Court of Lubbock County, Texas to set aside the award of the Industrial Accident Board; that the appellant's action to mature the same award does not lie; that the trial court properly overruled appellant's motion for summary judgment and properly sustained the appellee's motion for summary judgment and properly entered judgment in favor of appellee. Both of the appellant's points of error are overruled and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563511/ | 155 F.2d 780 (1946)
METROPOLITAN COAL CO.
v.
HOWARD.
No. 280.
Circuit Court of Appeals, Second Circuit.
June 5, 1946.
*781 Edmund J. Lamb and Purdy & Lamb, all of New York City, for appellant.
Albert T. Gould and Bingham, Dana & Gould, all of Boston, Mass., and Kirlin, Campbell, Hickox & Keating, of New York City, for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
This appeal is from a decree in the admiralty entered upon the claim of the Metropolitan Coal Company in a proceeding for limitation of liability by Thomas J. Howard, as owner of the "box barge," Thomas H. O'Leary. The question is how far Howard is liable for the loss of a cargo of coal owned by the claimant, when the barge, which carried it, foundered in Block Island Sound on December 4, 1940, about two miles west of the entrance to the Point Judith Harbor of Refuge. The facts are as follows. On November 1st, Howard and *782 the Coal Company signed a charterparty, chartering the whole of the barge to carry a cargo of coal from Edgewater, New Jersey, to Chelsea, Massachusetts. The charterparty stated that the barge had a "coal carrying capacity of 1800/1900 tons or thereabouts," and contained the usual exceptions, including "acts of God, dangers and accidents of the sea." It incorporated by reference the Limitation of Liability Act, 46 U.S.C.A. § 192, and "the provisions of and exceptions from, liability contained in" the Harter Act, 46 U.S.C.A. § 190 et seq.; and it then proceeded as follows: "If the Owner * * * shall have exercised due diligence to make the * * * Barge in all respects seaworthy and properly manned, equipped and supplied * * * neither the Owner * * * or the Barge shall be liable for any loss of * * * cargo resulting from * * * unseaworthiness of said Barge, * * * not discoverable by due diligence." Whether or not the tonnage mentioned in the charterparty is to be measured in net tons or gross, the O'Leary lifted only 1917 net tons of coal on November 6th at Edgewater, whence she set out in tow of the tug, "Greenough," in company with two other barges. On December 2nd, the flotilla, having passed through Long Island Sound without mishap, left New London, but was forced back by the weather. It set out again on the fourth, with the O'Leary in the lead, the two others behind her in tandem. They passed Watch Hill and into Block Island Sound that afternoon where the hawsers were let out to 150 fathoms each. Such information as the master of the tug had been able to get, indicated that the weather would be favorable, and so it continued until six o'clock in the evening. At that time, as the judge found, "there was a sudden change in the weather, the wind veering into the southwest and back to the south-southwest, and building up in strength, and the sea commencing to make." At seven-fifteen it had begun to snow, "and the sea continued to build up very fast"; the wind increased, but not so much as the seas, which were "much higher than was to be expected from the strength of the wind," though they were "not unusual" in those waters at that season. The judge found that the O'Leary was so loaded that her freeboard amidships was only about eighteen inches, and the seas, which boarded her, broke in her hatch covers (an inch and one-half thick), and so filled her that she foundered. The other two barges broke adrift, went ashore and were also lost.
The judge held that the O'Leary was unseaworthy, when she broke ground at Edgewater, "by reason of overloading and because thereof of furnishing her with hatch covers which were too thin"; and since Howard had signed the charterparty stating that she had a carrying capacity of 1900 tons, he charged him as for a warranty and without limitation. This appeal raises three questions: (1) Whether the burden of proof rested on the shipper, Howard being a private, and not a public, carrier; and whether the shipper carried it; (2) whether the charterparty excused the barge under the quoted clause as to "due diligence"; (3) whether the incorporation of the Limitation of Liability statute in any event excused Howard. Before considering these questions we must decide whether two findings made by the judge were "clearly erroneous." The first is that the barge had only eighteen inches of freeboard amidships. Upon the trial the bargee said that the freeboard was three and one-half feet, and the master of the tug that it was about three feet. However, when the tug master was examined before the Inspectors less than a fortnight after the loss, he stated that his "best judgment" was that the barge had only eighteen inches of freeboard amidships, although, he added, this was only "a guess." At the trial he repudiated this "guess," although he acknowledged that it had been his best judgment at the time. We cannot say that it was "clearly erroneous" for the judge to choose the tug master's first judgment against his, and the bargee's recollection at the trial. The truth was more likely to be what the master supposed while the matter was fresh in his mind. Next are the findings as to the severity of the weather. At Block Island the hourly wind movement never rose beyond twenty-four miles, with a maximum of twenty-six; and at seven-thirty P.M. on that day the seas were recorded as only "moderate." Apparently they were heavier than was to be *783 expected from such winds; and they may well have been the result of stronger winds further to the west; but certainly there is no reason to differ with the judge, who discredited the testimony that the waves ever reached a height of twenty feet. Nor do we see any reason to disturb his other finding that they were no more than was usual in those waters at that season. At least, they were not of that exceptional violence which justifies the strange appellation "an act of God."
The barge, having therefore founered under conditions of wind and sea which she was intended to meet, was unseaworthy in fact. The Silvia, 171 U.S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; The Southwark, 191 U.S. 1, 9, 24 S. Ct. 1, 48 L. Ed. 65; Edmond Weil, Inc., v. American West African Line, 2 Cir., 147 F.2d 363, 365. The statement in the charterparty that she had a "coal carrying capacity of 1800/1900 tons," was an express warranty (Denholm Shipping Co. v. W. E. Hedger Co., Inc., 2 Cir., 47 F.2d 213), and bound Howard without limitation. Pendleton v. Benner Line, 248 U.S. 353, 38 S. Ct. 330, 62 L. Ed. 770. Yet, although private, as well as common, carriers warrant the seaworthiness of their vessels, concededly there is a difference as to the burden of proof, for a shipper by private carrier must prove the breach. Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S. Ct. 156, 86 L. Ed. 89. That difference is of no importance here, however, for courts have recognized over and over again that unfitness developing in a vessel shortly after she breaks ground, is proof enough of unseaworthiness. (We collected the cases in Commercial Molasses Corp. v. New York Tank Barge Corp., 2 Cir., 114 F.2d 248, 251.) Therefore we hold that, except as Howard may have modified his express warranty by the clause we have quoted, the claimant carried the burden of proof and must succeed.
The modification was that, if Howard "exercised due diligence to make * * * the Barge * * * seaworthy and properly manned, equipped and supplied," he was not to be liable for "unseaworthiness * * * not discoverable by due diligence." Although the scope of the warranty was therefore limited by the words "not discoverable by due diligence," upon that limitation was imposed the condition that Howard should use due diligence, and if the condition was not fulfilled, the express warranty stood without limitation. The clause as a whole is primarily directed to defects in hull and gear, rather than to overloading; but seaworthiness includes proper stowage and the limitation would apply if the evidence justified it. Read upon the situation before us, the clause as a whole meant that, if Howard had been duly diligent to see that the barge was able to carry 1900 net tons in December, with hatch covers of one and a half inches, he did not warrant her ability, provided her inability could not have been discovered by reasonable diligence. So far as we can see, the substance of the limitation is the same as that of the condition for it is hard to see how, if Howard used due diligence to learn whether the barge was suited for the voyage as she rode, her unfitness could have been discovered by duly diligent inquiry or information. It is not necessary, however, to decide whether the Coal Company had the burden of proving that her unfitness was so discoverable, because we hold that Howard had the preliminary burden of proving the exercise of due diligence to make her seaworthy, in spite of the fact that he was a private carrier. First, the condition was copied almost in ipsissimis verbis from § 3 of the Harter Act, 46 U.S. C.A. § 192; and, when parties to a private charter lift words out of the Harter Act, they must accept the interpretation which the courts have put upon them. The Framlington Court, 5 Cir., 69 F.2d 300, 307. Under § 3 of the Harter Act the owner has the burden of proof to show due diligence, as a condition of limitation upon his duties. The W. W. Bruce, 2 Cir., 94 F.2d 834. Second, the owner has access to all the facts relating to what diligence he has in fact used, and the shipper has none. It is patently fairer that the owner should be called upon to prove that those facts existed on which he has made the limitation of his liability depend. Third, the warranty of seaworthiness is a favorite of the admiralty and exceptions to it or *784 limitations upon it, are narrowly scrutinized. The Caledonia, 157 U.S. 124, 137, 15 S. Ct. 537, 39 L. Ed. 644; Compania de Navegacion La Flecha v. Brauer, 168 U.S. 104, 118, 18 S. Ct. 12, 42 L. Ed. 398; Spang, Chalfant & Co. v. Dimon S. S. Corp., 2 Cir., 57 F.2d 965, 968; The Framlington Court, supra, 69 F.2d 300, 303.
The judge found that Howard had not used due diligence to make the barge seaworthy and although that was a "mixed finding of law and fact," since it necessarily involved a standard of conduct, nevertheless we read it to include a true finding of fact so far as it involved the credibility of any relevant testimony. Howard made no effort to prove that he had used diligence to ascertain whether the barge was fit for the voyage as she rode, except his own statement that he thought that she was; and, although he put in evidence apparently all the voyages of the O'Leary for the past four years, in only a single instance had she lifted so large a cargo, and that was in the summer, as indeed had been all her voyages. Furthermore, one, DeMars, whom he called as an expert, and who had had a long experience, although he said that the O'Leary could safely have taken such a cargo upon such a voyage at any season if she had three feet freeboard, added: "but if you said one foot freeboard or two feet freeboard then I would have to make some reservations in telling you whether I think it is good or bad." We do not wish to say that it can never be adequate evidence of due diligence that an owner, long tried in the traffic of vessels of the kind, declares that he believes the venture a safe one. Save for exceptional situations where courts are sure enough of their ground to overrule the customs of a calling,[*] those customs measure the proper standard, and the bias of a party need not discredit his testimony upon such an issue, any more than upon any other. But plainly an owner's testimony is not conclusive even when it is not contradicted, and that is the more true, when he has the burden of proof. We hold that the warranty of seaworthiness was unlimited, that the Coal Company proved the breach, and that Howard was properly charged with unlimited liability for the loss.
Finally, it is apparent that the Coal Company should not be itself charged with lack of care for overloading the barge. A warranty is an assurance by one party to a contract of the existence of a fact upon which the other party may rely. It is intended precisely to relieve the promisee of any duty to ascertain the fact for himself; it amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue, for obviously the promisor cannot control what is already in the past. Denholm Shipping Co. v. W. E. Hedger Co., supra, 47 F.2d 213, 214; The Fred Smartley Jr., 4 Cir., 108 F.2d 603, 606; The Soerstad, D.C., 257 F. 130. To argue that the promisee is responsible for failing independently to confirm it, is utterly to misconceive its office. The Coal Company was therefore quite right in loading the barge as it did; that is precisely what Howard intended that it should do, and now that he is called upon to indemnify his shipper because what he said has turned out to be untrue, he must respond.
Decree affirmed.
NOTES
[*] The T. J. Hooper, 2 Cir., 60 F.2d 737; Sieracki v. Seas Shipping Co., Inc., 3 Cir., 149 F.2d 98, 100. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563525/ | 558 S.W.2d 200 (1977)
Marvin S. MARTIN, Plaintiff-Appellant,
v.
Dr. Gene P. BARBOUR and Dr. E. W. Egle, Defendants-Respondents.
No. 37650.
Missouri Court of Appeals, St. Louis District, Division Four.
July 5, 1977.
Motion for Rehearing and/or Transfer Denied September 12, 1977.
Application to Transfer Denied October 11, 1977.
*203 Frank B. Green, Charles A. Mogab, Morris A. Shenker and Cordell Siegel, St. Louis, for plaintiff-appellant.
Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, John J. Horgan, Hullverson, Hullverson & Frank, Inc., Thomas C. Hullverson, Stephen H. Ringkamp, St. Louis, for defendants-respondents.
NORWIN D. HOUSER, Special Judge.
Nine jurors returned a verdict for $125,000 in favor of Marvin S. Martin in his suit against Drs. Gene P. Barbour and E. W. Egle based on charges of negligent operation and treatment for a rectal condition allegedly resulting in chronic and permanent incontinence. Defendants filed a motion to set aside the verdict and render judgment in accordance with their motions for directed verdicts at the close of all the evidence, or in the alternative for a new trial. The circuit court sustained the motion and entered judgment for defendants, or in the alternative sustained their motion for a new trial. Plaintiff has appealed, praying for reversal of the order and entry of judgment for plaintiff for $125,000 in accordance with the verdict.
Plaintiff went to the jury on the theory that in the course of surgical procedures performed by defendant Barbour plaintiff's internal sphincter muscle was damaged when it was not medically necessary to do so.
The first issue on appeal is whether plaintiff adduced sufficient evidence to make a submissible case on the issues of negligence and proximate cause. In making this determination we view the evidence in the light most favorable to plaintiff, giving him the benefit of all favorable inferences and disregarding defendants' evidence except insofar as it may favor plaintiff. Swope v. Printz, 468 S.W.2d 34, 37 (Mo.1971).
The term "negligence" in this case means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendants' profession. The parties agree this is the standard of care required of the surgeon performing surgery on plaintiff's rectum. More particularly, the initial question is whether the surgeon negligently cut or damaged plaintiff's internal sphincter muscle and if so whether the muscle was cut deeply enough or sufficiently to cause injury to plaintiff.
Plaintiff, having suffered for several weeks from stomach pains, first consulted Dr. Barbour on January 20, 1970. Suspecting stomach ulcer, Dr. Barbour placed plaintiff in Normandy Osteopathic Hospital for tests. After taking X rays and making other tests Dr. Barbour, an expert in the field of proctology, examined plaintiff's rectum. None of plaintiff's complaints was associated with his rectum. Plaintiff had never previously made any complaint with respect to or sustained any injury to or experienced any disease or treatment of any kind to his rectum. He did not complain of painful bowel movements in his interview with doctors at the hospital. Dr. Barbour tried to insert an examining pipe into plaintiff's rectum. He reported to plaintiff that he was unable to do so; that he found some sort of blockage in his rectum which would have to be opened up; that otherwise it would close; that if it closed all the way it would be "like locked bowels" and this would kill him; that surgery "had to be done." Dr. Barbour did not explain to plaintiff what surgery he proposed to perform; did not tell him he had hemorrhoids and a fissure; did not discuss the risks involved, the possibility of having *204 the sphincter muscle cut or damaged, that if it were cut plaintiff might be incontinent, or that the operation might not be 100% successful. Having confidence in the doctor, plaintiff submitted to surgery on February 3, 1970. Following surgery his rectum was tight (a condition termed "stenosis"). After the operation he was examined weekly, either by Dr. Barbour or Dr. Egle, at their offices, and treated by digital dilation of the rectum and attempts to stretch the opening with an instrument. Dr. Barbour finally advised a second operation. No mention was made of any dangers or risks involved in the second surgery. Trusting the doctor, plaintiff was operated on a second time on April 16, 1970. Following the second surgery plaintiff could no longer control his bowels; he was incontinent.
Plaintiff worked at General Motors for several years prior to January 28, 1970, on which date he took sick leave to enter the hospital. Off work continuously until December 11, 1970, plaintiff drew sick leave benefits. Plaintiff was required to submit to examination by the insurer's physician, a Dr. Richard Huck, for verification of disability. In July, 1970, Dr. Huck examined plaintiff digitally and with a "shiny tube." He advised plaintiff that he thought the operation would have to be "all done over again," but if it was his (the doctor's) "rear end" he would have a specialist do it. Plaintiff did not understand the significance of what Dr. Huck was telling him because he thought he had been going to a specialist, and he had no suspicion at that time and no idea that there was any basis for criticism of Drs. Barbour and Egle. Dr. Huck made a report to the insurance company, the contents of which were not disclosed to plaintiff. In October, 1970 plaintiff asked either Dr. Barbour or Dr. Egle if he would have to have the work all done over again. The doctor advised plaintiff to exercise the muscles down there, which plaintiff had been doing but exercise did not seem to be working. Plaintiff decided to do something about his situation. In October, 1970 he called Dr. Huck for a recommendation of another doctor. Dr. Leo J. LeBlanc, a proctologist, was recommended. Plaintiff first saw Dr. LeBlanc November 23, 1970, complaining of lack of control over his bowels, leakage, and having stools in his shorts. The first time plaintiff came to personal knowledge that he had sustained some injury in surgery was when he went to see Dr. LeBlanc on November 23, 1970. On that date Dr. LeBlanc told him that the muscle had been cut. Following the examination Dr. LeBlanc advised plaintiff there was an operation that could be performed, to try to pull the muscles back together; that he had performed the operation many times; that sometimes people get back quite a bit of muscle control, and others do not. Plaintiff decided against an operation at that time and resumed work at General Motors December 12, 1970. He worked for several months. On July 11, 1971, unable to do the work satisfactorily because of his rectal problem, plaintiff took sick leave. Plaintiff then returned to Dr. LeBlanc in the hope that repairs could be made to enable him to regain some control and go back to work. Dr. LeBlanc operated on plaintiff on July 16, 1971. The operation was unsuccessful. Plaintiff returned to work September 14 and worked until October 20, 1971, when he finally quit work for good, classified permanent total disability by Social Security and under the General Motors Retirement Plan. Plaintiff moved to Arizona, where on November 16, 1973 he submitted to an examination by Dr. Joseph McAndrew to verify his disability. Plaintiff filed suit for malpractice on September 6, 1972.
Dr. Barbour's operative report of the first operation shows a diagnosis of internal and external hemorrhoids, multiple cryptitis, posterior fissure in ano with anal stenosis, and rectomembranous prolapse, Grade III. The operation performed was Ano Proctoplasty (Internal, External Hemorrhoidectomy, Multiple Cryptectomy, Posterior Fissurectomy, with Anotomy for relief of anal stenosis, and plastic repair of rectomembranous prolapse, Grade III).
To make a submissible case of negligent malpractice and proximate cause the burden was on plaintiff to prove (1) that during *205 the surgical procedures performed by Dr. Barbour plaintiff's internal sphincter muscle was damaged; (2) that it was not medically necessary to damage that muscle in performing the surgery; (3) that damaging the internal sphincter muscle in the course of performing the surgery constituted a failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendants' profession, and (4) that damaging the internal sphincter muscle caused plaintiff to be incontinent.
(1) Was plaintiff's internal sphincter muscle damaged?
The sphincter muscle has three branches. Dr. LeBlanc testified that the sphincter muscle has to be "pretty well damaged in its three branches" before the result is no control (over bowel discharge). Some surgeons cut the muscle, but only the top branch of the muscle, which is done to defer healingso healing will begin inside and come outside rather than form a pocket. There is evidence by way of admissions made by Dr. Barbour in the hospital records, and by his counsel in opening statement, that in fact he cut the sphincter muscle during the first operation. The hospital records relating to the second operation contain an admitting note over Dr. Barbour's signature in which, after reciting that the patient had marked postoperative anal stenosis, Dr. Barbour wrote: "At the time of his first surgery division of the sphincter muscle at the posterior midline was accomplished, apparently inadequately because the patient still has too much stenosis." Dr. LeBlanc testified that this quotation means that the muscle was severed.
Dr. Barbour testified that during the first operation, in order to relieve the stenosis and open up the canal "so you can get proper things to go through," he inserted a speculum and took a scalpel and "divided down through the scar tissue, and whatever muscle was involved in that. I don't always report this subcutaneous external sphincter muscle that is scarred up, you go through it. When you have one that needs to be gone through, you just go through that." He testified that "some people" feel the external sphincter muscle must be divided in order to do an adequate fissurectomy "and if you have got a stenosis, you must divide the subcutaneous external sphincter muscle"; that he could not really tell whether he did it completely or not. "I did some, because in an anal stenosis that muscle is shallow, it's not terribly deep. I may have divided that muscle. I can't really tell you." On cross-examination Dr. Barbour stated that when you are doing the stenosis "you have also got to get probably into some of these subcutaneous sphincter muscles." Questioned whether he divided the external sphincter muscle he answered, "Not the whole one. I'm not sure, I don't believe, I say." Asked if in his report he mentioned cutting into the internal or external sphincter muscle, Dr. Barbour answered, "No, sir. I did not. However, that is a routine kind of operation which I suppose maybe I should record if I'm talking about the subcutaneous portion of the external sphincter muscle. I don't necessarily record that. I do say in this operative report that I Marsupialized the wound edges, which makes me think I probably did do a sphincter incision in the subcutaneous external sphincter muscle, because if you are really scarred up and really tight, you don't want the patient to seal up again. And, very often I will make an incision in that muscle and Marsupialize it down, or sew it down rather than bring it straight back together." Further, "Q. Now, there is no mention in that report of your going into the internal or external sphincter muscle or cutting into that muscle, but, now, you say, you may have? A. I say, I probably did, the external subcutaneous sphincter muscle, and I say, since I Marsupialized it, I probably incised it, but I can't tell you that for sure. Q. When you say you incised it, that means cut? A. Yes, sir. Q. And that the depth of the cut at this time you couldn't tell us A. You mean Q. (continuing)from your personal recollection or from any note that you made at the time? A. I will say that I could have cut through the entire subcutaneous external sphincter muscle."
*206 In defendants' opening statement counsel stated that the evidence would show that "the sphincter muscle was cut."
Plaintiff testified that at his first examination by Dr. LeBlanc on November 23, 1970 Dr. LeBlanc told him the sphincter muscle had been cut. That this happened is borne out by what Dr. LeBlanc found when he operated. There was a deficiency in the sphincter muscle of about one inch. Using forceps he "fished" in the tissue for the ends of the muscle, which were separated and retracted in the tissue. He "found two ends of the muscle" and "pulled them together," threading them with a piece of wire later removed and making the repair with catgut. Unfortunately the ends did not reunite and the operation was unsuccessful.
With respect to the second operation there is direct evidence by way of an admission that Dr. Barbour cut deep to the internal sphincter muscle. In his operative report on the second surgery Dr. Barbour stated: "A Brinkerhoff speculum was introduced into the anus and scar tissue at the posterior midline was excised. * * * The incision was deep to the superficial fibers of the external sphincter muscle and the internal sphincter muscle. * * * An incision was also made at the lateral midline on both the right and left side deep to the superficial fibers of the internal and external sphincter musculature." The report went on to say that it was not necessary to incise any fibers of the muscle; that the scar tissue excised lay above the muscle, and that the muscle was found to be in good condition. Dr. Barbour testified that he shouldn't have said what he said in the last quoted sentence; that he did not mean the whole sphincter; that "we are doing these things all the time, and you go in and make a dictation, * * * and you are kind of hurrying"that paper work is one of your biggest headaches; that he said sphincter because it "is a common procedure to me to cut the external subcutaneous sphincter. I do not as common procedure cut the whole sphincter, Iso, I reported there what I shouldn't have said." When asked if there was any way of knowing how deep the incision went in the second operation Dr. Barbour answered that he could tell about his procedures in general; that he always goes as far as the scar tissue goes. In reviewing his operative report Dr. Barbour said, "* * * I assume I did not cut the fibers in there. It's probably a little bit impossible not to cut any, but I said I didn't cut any." After extensive cross-examination Dr. Barbour admitted the possibility that "the lower border of the internal sphincter muscle might have been incised."
In addition to the admissions of Dr. Barbour there is circumstantial evidence that the internal sphincter muscle was cut. Dr. LeBlanc testified that if Dr. Barbour "just cut the top branch, I think, nothing would have happened"; that if plaintiff was not incontinent after the first operation and was incontinent after the second, the conclusion is that the muscle was not cut in depth in the first operation sufficiently to make him incontinent.
Following Dr. Huck's examination of plaintiff Dr. Huck made the diagnosis: "Rectal incontinence secondary to division of rectal sphincter," by which he meant "that the sphincter was cut." From the patient's history of inability to control his bowels following rectal surgery the "logical conclusion" in the doctor's thinking was that the patient must have had his sphincter muscle cut.
From all of the foregoing the jury could find and believe that in the course of the first operation Dr. Barbour cut through the entire exterior sphincter muscle to relieve the stenosis; that Dr. Barbour considered such cutting routine and did not include it in his operative report; that the division of the muscle during the first operation was inadequate to properly relieve the tightened condition of the anus and a second operation became necessary; that in the course of the second operation further cutting was done to relieve the stenosis; that incisions made in the course of the two operations effected a separation of the sphincter muscle; that the two ends of the muscle retracted; that in his attempt in the second *207 operation to further relieve the condition of stenosis Dr. Barbour cut deeper than he intended. The jury was not required to accept and evidently rejected Dr. Barbour's sometimes conflicting testimony with respect to whether he cut various branches of the sphincter muscle and if so the extent to which the sphincter muscle was incised. The jury could and evidently did find that the internal sphincter muscle was incised by Dr. Barbour and incised deeply enough to injure and damage plaintiff.
(2) Necessity of damaging the muscle in performing this surgery?
Dr. Barbour testified that in performing a simple hemorrhoidectomy there is no cutting or tampering with the internal or external sphincters if the surgery is properly done, and that any cutting on the sphincter muscle in such an operation would be improper. The same is true of a multiple cryptectomy. He agreed that surgical damage to the anal rectal sphincter muscle is not a common and ordinary incident of anal rectal surgery; that it was not necessary to traumatize the rectal sphincter muscle for the operations performednot necessary to incise the muscles further than the extent of the scar tissue. Asked "Was it medically necessary at all to cut into the internal sphincter muscle in any of your operations you performed?" Dr. Barbour answered, "I don't believe so."
Dr. LeBlanc testified that in doing a cryptectomy, hemorrhoidectomy and fissurectomy it is not necessary to cut on the muscle; that "you do your dissecting down to the muscle."
From the medical evidence, including the admissions of Dr. Barbour, the jury had ample evidence to find that there was no necessity of damaging the sphincter muscle in performing this surgery.
(3) Did the damaging of the muscle constitute a failure to meet the required standard of care?
Dr. Huck testified that the total, unintended, accidental cutting of the sphincter muscle when it is not necessary to cut is not good medical practice.
Dr. LeBlanc testified that the unintended cutting of the sphincter muscle for reasons that are not medically necessary constitutes a failure to exercise the reasonable medical care (that degree of care other surgeons use); that he was familiar with what good medical practice is in this regard and it is not good surgical practice to cut the whole sphincter muscle without medical indication or medical basis for cutting the muscle.
Dr. Joseph McAndrew agreed that the unintentional cutting of a sphincter muscle in performing rectal surgery would be a failure to exercise that degree of care, skill and competence that other physicians would exercise. From his examination of plaintiff and his findings of scar tissue and incompetent anal sphincter he would say that "whatever surgery took place there, fell beneath the care ordinarily exercised by rectal surgeons."
From this evidence the court could find an affirmative answer to the question propounded in (3).
(4) Did the damage to plaintiff's sphincter cause incontinence?
Defendants' counsel conceded in his opening statement that plaintiff has "mild" incontinency and in their brief agree he has "some degree of incontinence" but they contend there was no expert medical testimony that the incontinence results from damage to plaintiff's sphincter muscle.
Dr. Huck's diagnosis was "Rectal incontinence secondary to division of rectal sphincter." The word "secondary" means dependent or consequent on, as used here, and this diagnosis tends to prove causal connection.
Dr. LeBlanc's testimony reveals his conclusion that plaintiff had an incontinent rectal sphincter resulting from previous surgery. Dr. LeBlanc testified that plaintiff gave him a history of bowel control before surgery and no control after surgery; that he examined him, and upon digital insertion in his rectum plaintiff was unable to tighten up and squeeze the doctor's finger; that this "tells you something *208 has happened here." He put it this way: "I don't know how to phrase it any other way with the history of surgery and the patient tells you that he had control before surgery, and, now, he doesn't. * * * If he tells you that he doesn't have any control now, and you examine him and you find what I found, I only had one conclusion to draw that something happened there." Before examining Dr. Barbour's notation in the hospital record (admitting division of the sphincter muscle) Dr. LeBlanc testified that he was not present at the operation and did not know what happened theredidn't know whether the muscle was damaged with a clamp, whether he was cut, or had an abscess. After seeing Dr. Barbour's written admission, however, Dr. LeBlanc testified this meant the muscle was severed; that "He admits it here. It's not my doing. It's written here"; that if the severance of the muscle had been repaired immediately plaintiff would have had a better chance of making a full recovery, but that by the time Dr. LeBlanc "got him" the muscle had atrophied; that during the operation he performed Dr. LeBlanc "fished" for the two separated ends of the muscle; that it is a matter of judgment how deep a surgeon should go in the removal of scar tissue; that "the thing is the depth of the cut, and if you don't know how deep to cut it, don't cut it"; that if a surgeon knows where he is putting his knife and incontinence happens the surgeon doesn't know his anatomy. Dr. LeBlanc referred in his testimony to a report he signed for insurance purposes, reciting that "Physical exam reveals incontinent rectal muscle," and ruled out all other causes of plaintiff's incontinence. He reviewed the X-ray reports and hospital records and testified that there was nothing in the hospital findings (with reference to colitis, gastritis, duodenitis, hyperactive intestine or other upper G.I. diagnoses) to account for the man being incontinent, other than the finding he made of damage to the anal rectal sphincter muscle.
We find proof of causation sufficient to submit the case to the jury.
Plaintiff's case against Dr. Egle, who did not assist or participate in either of the operations performed by Dr. Barbour and did not consult or treat plaintiff until after the operations, is based upon the contention that the two doctors were partners acting concurrently in treating plaintiff. There was evidence that on January 20, 1970 they were partners, but that at the time of the trial Lackland Clinic, owned by defendants, was a corporation. There is no evidence to show if and when the partnership was dissolved or when Lackland Clinic was incorporated. Plaintiff claims it is immaterial whether defendants treated him as partners or as coemployees of a corporation, in view of the evidence patients are seen back and forth between the two doctors; that patients know that either one or both of the doctors will see them, and that both doctors make notations on the file cards of patients and all their records show entries either by Dr. Barbour or Dr. Egle, or both. Conceding that under Telaneus v. Simpson, 321 Mo. 724, 12 S.W.2d 920 (1928), the negligence of Dr. Barbour in surgery could be imputed to Dr. Egle, if defendants were partners during the entire course of plaintiff's treatment, defendants say there was no evidence that defendants were partners beyond January, 1970. Further conceding that under Baird v. National Health Foundation, 235 Mo.App. 594, 144 S.W.2d 850 (1940), defendants would be jointly liable as employees of a common employer if they were acting concurrently in treatment of plaintiff which caused him injury, defendants say they were not acting concurrently on February 3 and April 16, the only dates or occurrences upon which negligence was charged; that since there was no charge of negligence with respect to postoperative care, plaintiff failed to make a case against Dr. Egle on the issue of concurrent treatment. Defendants further contend that any fraudulent concealment by Dr. Barbour constituted a wrongful act outside the scope of the partnership business, which could not be imputed to Dr. Egle, and therefore the statute of limitations as to the vicarious liability of Dr. Egle expired before suit was filed.
*209 Having proved that a partnership between the two doctors existed in January, 1970 an inference arises that the partnership continued to exist until the corporate form of practicing medicine was adopted. Martin v. Sloan, 377 S.W.2d 252, 256-257 (Mo.1964). The only evidence with respect to the corporate existence shows it in existence at trial time. There is no evidence that the corporation was in existence at any time prior to the filing of this lawsuit. For defendants to take the position that the law of partnership does not apply the burden was theirs to demonstrate when the partnership terminated. This they failed to do. "Pursuant to general rules, partners in the practice of medicine are all liable for an injury to a patient resulting from the lack of skill or the negligence, either in omission or commission, of any one of the partners within the scope of their partnership business; * * *." 70 C.J.S. Physicians and Surgeons § 54b., p. 977. "And where several physicians are in partnership, they may be held liable in damages for the professional negligence of one of the firm." 60 Am.Jur.2d Partnership § 166, p. 86. "It is plain, too, that when physicians and surgeons are in partnership, all are liable in damages for the professional negligence of one of the firm, for the act of one, within the scope of the partnership business, is the act of each and all, as fully as if each is present, participating in all that is done." 61 Am.Jur.2d Physicians, Surgeons, Etc. § 166, p. 295. And see Anno: 85 A.L.R. 2d 889. On this record Dr. Egle is liable for Dr. Barbour's professional negligence on the basis of their partnership. There is no merit in the contention that fraudulent concealment by one partner may not be imputed to another partner. "The individual partners * * * are liable in a civil action for the fraudulent misconduct of a partner within the course or scope of the transactions and business of the partnership, whether such misconduct be by fraudulent representations or otherwise, even though the copartners had no knowledge of the fraud and did not participate therein; * * *." 68 C.J.S. Partnership § 170, p. 620; Kearns v. Sparks, 260 S.W.2d 353, 360[15] (Mo.App.1953).
The next question for determination is whether plaintiff is barred by the 2-year statute of limitations applicable to actions for malpractice (§ 516.140, RSMo 1969). The acts of alleged negligence occurred on February 3 and April 16, 1970. Suit was filed September 6, 1972.
Section 516.280, RSMo 1969 provides: "If any person * * * by any * * * improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented." For plaintiff to submit fraudulent concealment under § 516.280 in avoidance of the 2-year limitation period he must have proved (1) that in performing the surgeries Dr. Barbour did or failed to do something which caused the incontinence; (2) that Dr. Barbour's conduct failed to meet the required standards of professional competence and therefore constituted negligence; (3) that Dr. Barbour had actual knowledge that he caused the incontinence; (4) that with that knowledge Dr. Barbour intended by his postoperative conduct and statements to conceal from plaintiff the fact that he had a claim against him for malpractice by reason thereof; (5) that Dr. Barbour's acts were fraudulent, and (6) that plaintiff was not guilty of any lack of diligence in not sooner ascertaining the truth with respect to his situation. Swope v. Printz, supra, 468 S.W.2d l.c. 38-39.
Under our previous analysis (1) and (2) were satisfied.
As to (3): Dr. Barbour testified that he cut the external sphincter muscle, perhaps through the entire muscle. He admitted that he might have excised the internal sphincter muscle. For the sphincter muscle to have no tone as a result of surgery it would be necessary for the muscle to have been considerably damaged in all three of its branches, according to Dr. LeBlanc. Only Dr. Barbour had personal knowledge of how deeply he cut but the stark fact for the jury to consider was that *210 prior to the cutting the muscle was working but afterwards it was incompetent, as testified to by Drs. LeBlanc, and McAndrew, whose digital examinations revealed that plaintiff was unable to contract or draw up the muscle. After only one routine office examination it was apparent to these two doctors that the muscle was affected and that the incontinence resulted from the surgery. Although Dr. Huck did not remember having made a digital examination it was his opinion that the incontinence resulted from the surgery. The jury could find that the true cause of plaintiff's incontinence, so readily apparent to three disinterested doctors, was equally apparent to Drs. Barbour and Egle, eminent proctologists with wide experience in the fieldprofessed experts fully acquainted with the surgery performed and intimately acquainted with plaintiff's condition both before and after the surgery; could find that Dr. Barbour had actual knowledge not only that he cut and unintentionally cut too deeply but also that he knew his surgeries had caused the incontinence.
On (4) and (5)fraudulent concealmenta submissible case was made. Plaintiff is not a highly educated person. His formal education consisted of eight years of grade school and four years of night school training in machine shop work. He had no information on matters of this nature. He did not know of his own knowledge how long it took "for anything like this to get well." While in the hospital, immediately after the second operation, plaintiff found himself incontinent. After leaving the hospital and during the weekly visits to Lackland Clinic plaintiff questioned Dr. Barbour concerning his inability to control his bowels. A fiduciary relationship of a highly confidential nature existed between plaintiff and Drs. Barbour and Egle, imposing upon them the duty to disclose known material facts to plaintiff. The jury found that defendants knew the sphincter muscle had been negligently damaged in the operative procedures. With that knowledge it was defendants' duty to disclose this important fact to plaintiff. The jury could find not only failure to disclosecomplete silence on the subjectbut also affirmative misrepresentation of the situation by repeated assurance that the rectum was in good condition and attributing his condition to chronic colitis. Plaintiff had a right to and the jury could find that plaintiff did in fact rely upon, trust and believe defendants and their representations and advices; that he had implicit confidence in them. When plaintiff interrogated Dr. Barbour about his condition Dr. Barbour told him it would take a long time before his bowels would start working right; to keep exercising his muscles down there; and assured him that it would take quite a long while before his bowels would start functioning normally. Plaintiff asked what he meant by a long time and Dr. Barbour answered, "A year or more." On August 4, 1970 Dr. Egle told plaintiff that his rectum was doing fine and it was explained to plaintiff that he had a chronic condition of colitis. On August 22, 1970 Dr. Egle wrote in his notes and told plaintiff his rectum was fine and all healed. Defendants kept telling plaintiff that he was improving and that his anal rectal ring was intact. (The anal rectal ring is not the same as the anal sphincter muscle; the anal rectal ring was not involved in any manner.) On September 19, 1970 Dr. Egle wrote in his notes: "Rectum perfect sphincter good." Following Dr. Huck's examination, and in October, 1970 plaintiff questioned defendants about his progress and whether he would have to have the surgery done over again. He was told to exercise his muscles. Plaintiff told the doctor that the exercise "didn't seem to be working," whereupon the doctor slapped him on the back and said, "You have got better muscles than I have down there." Dr. Egle recorded that his rectum was perfect; that he had good functional bowel syndrome and that on digital examination he found good tone in the sphincter muscle. On October 17, 1970 this notation appears: "Rectum healed * * * Sphincter excellent," and advised plaintiff he could return to work.
The jury could find that these record entries, misrepresentations and reassurances *211 given plaintiff, made in the face of plaintiff's contrary experience and diametrically opposite to the findings of disinterested medical practitioners were falsely and fraudulently made; that they were made with intent to deceive plaintiff and conceal the true fact that he had been negligently damaged and made permanently incontinent by the surgeries.
(6) Whether plaintiff was not diligent in sooner ascertaining the truth was a jury question. From the date of his second operation until November 23, 1970, when for the first time he learned that his sphincter muscle had been cut, plaintiff received repeated assurances from defendants that he was improving; that he had chronic colitis to account for his loose bowels, and that it would take a long timea year or longerbefore his bowels would be working normally. As indicated, there was ample evidence of reliance by plaintiff upon the advices of these rectal specialists, who did not tell him his sphincter muscle had been severed. Dr. Huck, who examined plaintiff in July, did not inform him of this fact, although Dr. Huck did alert plaintiff sufficiently to cause him to seek further medical advice. In November, 1970 he for the first time learned that his sphincter muscle had been damaged, and he filed suit within two years after gaining that knowledge. Because of the pain and previous experience plaintiff did not undergo a third operation immediately after November 23, 1970. Instead, he went back to work. He wanted "to think it over and give it more time, maybe they would start working again." Plaintiff pursued his employment until it became evident that his condition would not permit him to work any longer. Even then he clung to the hope that his condition would eventually get better, a hope fed by defendants. The jury could find that plaintiff was not guilty of lack of diligence in not sooner ascertaining the truth of his condition.
In the alternative order directing a new trial the circuit court sustained every one of the seventeen assignments of error in giving Instruction No. 4 (plaintiff's main verdict director). We have read and considered each of the seventeen assignments of error which were sustained in this wholesale fashion and we find no merit in any of them. Many of the criticisms relate to claimed lack of evidence in the same respects complained of as failure to make a submissible case, which we have disposed of adversely to defendants. None of them is of sufficient value as a precedent to justify a seriatim treatment in this already too long opinion. Instruction No. 4 is MAI No. 21.01 properly modified to incorporate the factor of fraudulent concealment. It is simple, brief, impartial, free from argument, does not require findings of detailed evidentiary facts and properly submitted the issues tried.
Defendants assign as an additional reason why they are entitled to a new trial that Dr. Barbour was improperly cross-examined by use of certain medical textbooks, because they were not sufficiently identified. (Counsel for plaintiff merely stated that the books were from the Washington University Medical School Library.) That objection was not made at trial. Defendants' counsel then objected "to that as not for cross-examination." This general and obscure objection was insufficient to raise the point now pressed. Galloway v. Galloway, 169 S.W.2d 883, 887 (Mo.1943). In any event, no prejudice is shown. The witness was in basic agreement with the quotations from the books which were read to him.
Defendants further contend that the new trial order was justified for error in allowing personnel from the disability benefits insurance company and General Motors to testify that plaintiff was totally disabled according to their business files; that this testimony was hearsay upon hearsay and inadmissible under the Business Records Act.
Mr. Adams, an employee of General Motors, whose duty as an adjuster was to review and evaluate employees' claims for disability benefits under the company's insurance policy with Metropolitan Life Insurance Company, and to authorize payments, testified that the criterion for *212 payment was that of total disability. He produced and identified the insurance file pertaining to plaintiff's claim for disability benefits. It contained a number of documents, including reports of doctors following examinations of plaintiff. On objection the court excluded the contents of the file, but permitted Mr. Adams to testify to the amounts of money paid plaintiff for his disability and to state on what supportive basis it was determined that these payments were due, i. e., that benefits were "paid based on evidence of total disability." This testimony was not admitted to show the substantive fact of total disability. It was competent on the issue of damages for plaintiff to show the basis of payments made to plaintiff under the disability program as bearing upon the calculation of plaintiff's past and future loss of wages. The contents of the file, inadmissible as hearsay, were properly excluded. The amount of disability payments, however, was pertinent to the inquiry and there was no error in permitting Mr. Adams to testify that these amounts were based on evidence of plaintiff's total disability, without detailing that evidence. Scott v. Missouri Ins. Co., 222 S.W.2d 549, 554[3] (Mo.App.1949). Indeed, it would have been impossible to introduce evidence of the payments without showing the basis, because total disability was the criterion for payment. The reference to total disability was therefore a necessary part of Mr. Adams' testimony. Furthermore, the evidence was cumulative merely. Plaintiff's testimony indicated total and permanent disability. There was medical evidence of that fact. Finally, this evidence benefited defendants, from the standpoint of mitigation of damages. Plaintiff's counsel in final argument conceded that defendants should be credited with these payments.
Accordingly, the order of November 25, 1975 is reversed and the cause is remanded with directions to enter judgment in accordance with the verdict in favor of plaintiff and against both defendants as of October 24, 1975 in the amount of $125,000.
SMITH, J., and ALDEN A. STOCKARD, Special Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564984/ | 691 S.W.2d 940 (1985)
J. Robert TULL and June R. Tull, Husband and Wife, & Perry V. Ewing, Jr. and Helen S. Ewing, Husband and Wife, Respondents,
v.
HOUSING AUTHORITY OF the CITY OF COLUMBIA, Missouri, Appellant.
No. 36237.
Missouri Court of Appeals, Western District.
May 28, 1985.
*941 Cullen Cline, Butcher, Cline, Mallory & Covington, Columbia, for appellant.
Raymond C. Lewis, Jr., Gena J. Trueblood, Smith, Lewis & Beckett, Columbia, for respondents.
Before LOWENSTEIN, P.J., and SHANGLER and SOMERVILLE, JJ.
LOWENSTEIN, Judge.
The plaintiff-respondents (hereafter referred to as owners) comprised a partnership which leased a 26 acre tract of land and 150 mobile homes to the defendant-appellant Columbia Housing Authority (CHA) for a low-income housing project in Columbia, Missouri. The lease, which ran from 1969 to 1979, provided that CHA was responsible for any damage done to the trailers by the sub-tenants beyond normal wear and tear, which was defined as
"the natural wearing process of the physical parts or components of a mobile home unit and the premises when in use by the occupants, but not to mean, willful, malicious or intentional abuse or destruction to any parts of the components of said dwelling unit."
This breach of contract case covers approximately 100 of those mobile homes which were returned to owners with extensive damage which included such items as holes or dents in the coaches, damage to metal doors and wall panels, ceiling water damage, broken and filthy refrigerators, tenant debris, floor stains, animal excrement, illegal electrical connections, vanities off the walls and broken screens and windows. There was evidence as to extensive water line damage due to freeze-ups when *942 heating bills were not paid. The testimony and pictures admitted in evidence show the persons to whom the CHA rented these units allowed considerable damage to be done. After the lease the owners removed 50 truckloads of debris which included car parts and broken glass and furniture. The basic thrust of CHA's appeal is the amount of the judgment was too high it does not contest liability. Cf. Gulf, M. & O.R. Co. v. Smith-Brennan Pile Co., 223 S.W.2d 100, 102 (Mo.App.1949). After trial to the court, a judgment was entered for the owners for $162,276.15 for diminution in value of 97 units, $8,260.60 for hauling debris and $19,575.04 for attorney fees allowed under the lease. The latter two awards are not in contention on appeal.
CHA first contends that the trial court used the wrong measure of damages. The court used diminution in value as the measure of damages, rather than using the cost of repairs as was urged by CHA. Both parties agree that the general rule for damage to real or personal property is the diminution in value test, i.e., the difference between the fair market value before and after the event causing the damage. City of Kennett v. Akers, 564 S.W.2d 41, 50 (Mo. banc 1978); Groves v. State Farm Mutual Auto Ins. Co., 540 S.W.2d 39, 43 (Mo. banc 1976); DeLisle v. Cape Mutual Ins. Co., 675 S.W.2d 97 (Mo.App.1984); Lustig v. U.M.C. Industries, Inc., 637 S.W.2d 55, 58 (Mo.App.1982); DeArmon v. City of St. Louis, 525 S.W.2d 795, 800 (Mo.App.1975).
An exception to the general rule is the cost of repair test which may be used when the property can be restored to its former condition at a cost less than the diminution in value. DeLisle, supra, at 103. CHA urges that this test would have been the proper measure of damages, citing DeArmon, supra, case and Wenzlick v. Franz, 288 S.W. 946 (Mo.App.1926), for the proposition that this test is to be applied if cost of repair is any figure less than the diminution in value. However, the Wenzlick court used the cost of repair as the measure of damages since no evidence of fair market value before or after was presented. See also, Smith v. Norman, 586 S.W.2d 84, 87 (Mo.App.1979). It was held in DeLong v. Broadston, 272 S.W.2d 493, 497 (Mo.App.1954), the diminution of value test is only appropriate when evidence is received touching the market value of the real estate both before and after the damage. In that case there was no such evidence, only the repair cost was offered. This approach was rejected since the predicate for repairs as the measure, was to establish an exception to the before and after value rule, and then to submit the repairs exception, if applicable. Id. The court further held that the cost of repairs test is improper unless the damage is comparatively insignificant considering the total value of the building. Id.
The DeArmon case does not support CHA's argument either. That opinion reiterated, "that the cost-of-repair test is an exception to be used only where the amount of the damage is insignificant as compared to the value of the property." 525 S.W.2d at 800. The court further said the diminution test is used "without hesitation in circumstances that suggest a very high restoration cost." Id. Contra, Casada v. Hamby Excavating Co., Inc., 575 S.W.2d 851, 858 (Mo.App.1978). In surveying the cases which applied the cost of repair test, it is clear this application is limited to situations where repairs amount to a small percent of the diminution in value. See, Kirst v. Clarkson Construction Co., 395 S.W.2d 487, 493 (Mo.App. 1965) (repairs equalled $315, diminution equalled $5,500 i.e. about 6%); Jack L. Baker Cos. v. Pasley Mfg. & Distrib. Co., 413 S.W.2d 268, 273 (Mo.1967) (repairs equalled $3,000, diminution equalled $13,380 i.e. about 22%); Beaty v. N.W. Electric Power Cooperative, 296 S.W.2d 921 (Mo.App. 1956) (repairs equalled $500, diminution equalled $1500 to $5000 i.e. 10-30%). The *943 most recent case allowed the highest ratio. In Delisle v. Cape Mut. Ins. Co., supra, the diminution in value evidence offered by the plaintiff was $40,000; repairs were estimated by the defendant to be at least $19,832.02 and by the plaintiff as $40,000. In the court-tried case the judgment was for $26,264.58. This compromise between the two repair estimates was about 60% of the diminution in value. It is important to note that the plaintiff did not appeal this award, so the measure of damages applied was not contested. The defendant who appealed alleged the award should have been limited to the lesser of the two repair estimates, but the appellate court deferred to the trial's award since it was within the range of evidence.
CHA estimated the total cost of repair of the trailers at $17,513.47. The owners estimated the cost of repair for each mobile home at $1,200 although this figure did not include the damage to water lines, water heaters and furnaces. The total cost of repairs according to the owners would have been something in excess of $114,000. (Evidence was that two of the hundred units had no damage, and three units had been destroyed and paid for at an earlier date). This figure is at least 70% of the diminution in value, and the unincluded water line damages could raise the percentage even higher. While the cost of repairs is competent evidence to be considered in determining the damage suffered, Misch v. C.B. Contracting Company, 394 S.W.2d 98, 101 (Mo.App.1965), it is not binding on the trial court when the repair cost is clearly a significant percent of the total value of the property. DeArmon, 525 S.W.2d at 800. As a matter of law, the trial court did not err in applying the diminution in value test under the present facts.
CHA next contends that the trial court erred in fixing the "before" fair market value of the mobile homes at $4,200. The owners had two qualified experts plus one of the owners testify as to 1979 fair market value. The estimates ranged from between $4,200, $4,500 and $5,000. Although the owners had paid $4,200 per unit in 1969, the testimony in evidence indicated inflation had offset depreciation over the ten years. The evidence presented by CHA as to fair market value was that the two apparently undamaged mobile homes had sold for $3,200 in 1979. Also the owners had received $3,250 in insurance proceeds for a unit destroyed by fire in 1975. The court in Hounihan v. State Farm M.A.I. Co. of Bloomington, Ill., 441 S.W.2d 58, 62 (Mo.App.1969), held that proof of a single sale is not sufficient to establish a market value. While CHA's evidence can be weighed by the trial court, it in no way binds the court on valuing the other 97 mobile homes.
CHA complains the trial court relied solely on opinion evidence, but an owner may always testify regarding his property's value, Lustig, 637 S.W.2d at 61; Casada, 575 S.W.2d at 854. CHA did not contest the other experts' qualifications. Furthermore, the trial court used the lowest of the three estimates presented by the owners. Under the review of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), there was substantial evidence to support the trial court's calculations. CHA's additional unsupported contentions, including an allegation of error in allowing the owners to amend their petition to increase the prayer, are without merit and are denied.
The owners have requested additional attorneys' fees be awarded for this appeal in the amount of $5,328.75, plus $335.61 in expenses. The lease between the owners and CHA provided in the case of a breach the party adjudged to be in default would be required to pay all costs, expenses of trial and attorneys' fees. As stated earlier the trial court awarded a sum that has not been contested. CHA did not file any motion in opposition to the present requested allowance, and at oral argument conceded the requested amount was reasonable. *944 Therefore, an allowance of $5,664.36 in attorney's fees and expenses is granted to the owners. Their request for damages for frivolous appeal under Rule 84.19 is denied.
The judgment of the trial court is affirmed. The owners are also given judgment, for which execution shall issue, for $5,664.36 representing attorney's fees and expenses on appeal.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304510/ | CEOWNOVEE, J.
This is an action to recover damages for personal injuries and for the demolition of plaintiff’s automobile caused by a collision with the defendant’s freight train. At the close of all the evidence the trial judge directed a verdict for the defendant. The plaintiff in error moved for a new trial, which was overruled. He has appealed in error-to this court and has assigned errors.
The judgment was entered on April 22, 1925, and the court allowed plaintiff in error sixty days ,in which to execute an appeal bond and to file a bill of exceptions. The appeal bond was filed May 30, 1925, and the bill of exceptions was filed on June 1, 1925.
It will thus be seen that the appeal bond was filed more than thirty days after the entry of the judgment. Under the statute (Shannon’s Code, see. 4898) the trial judge is not authorized to grant more than thirty days at any one time and cannot grant sixty days in the first instance.
We had this question before us in numerous cases and especially in the case of George W. Harbin v. Mrs. M. I. Harbin, Lincoln County Equity, decided at Nashville, September Term, 1923. That case was strongly contested and a petition to rehear was filed, and our court said in its opinion:
“We have again carefully examined the Act of 1885 (Shannon’s Code, sec. 4898), and have carefully considered the petition to rehear, but are constrained to adhere to our former ruling in this case.
“In the case of R. R. v. Ray, 124 Tenn., 16, 23, Judge Neil said:
“ ‘Prior to the Act of 1885 was Act 1871, ch. 59, which was as follows:
“ ‘In all cases in the inferior courts of this State, wherein an appeal to the Supreme Court may hereafter be prayed and granted upon the terms now imposed by law, and the party appealing is a resident of another county or State, or is unable, by reason of physical inability, to be' present, the court granting said appeal, may in its discretion, allow the appellant lime in no case exceeding thirty days, in which to give bond or file the pauper’s oath for the prosecution of said appeal, and such appeal bond approved by the clerk of the court from which the appeal is taken or the. pauper’s oath filed with said clerk within the time allowed by the court, shall render said appeal as effectual as if done as now required by the law, during the term of court at which the judgment appealed from was rendered.
“ ‘Before the Act of 1871 the practice in chancery causes was for the chancellor to grant such length of time as he might see proper, even beyond the end of the term, for the execution of a bond for an appeal previously prayed (McPhatridge v. Gregg, 4 Cold., 324, 326; Andrews v. Page, 2 Heisk., 634, 638; Adam-*144son v. Hurt, 3 Shan. Cas. 424; Davis v. Wilson, 85 Tenn., 383, 5 S. W. 285) but no such power was recognized as belonging to the circuit courts (James Ricks ex parte, 7 Heisk., 364).
“ ‘To correct this practice, and to make the rule uniform in both circuit and chancery courts, the Act of 1871 was passed. That Act, however, was construed by this court in Jackson v. McDonald, 2 Leg. Rep., 21, 2 Shan. Tenn. Cases, 556, to mean that the grace given for execution of the bond should be computed from the day of the adjournment of the court, and not from the time at which it was granted. The result of this construction was that there were frequently great delays in the prosecution of appeals, and often they were not prosecuted at all after long indulgence had been granted under this construction, thereby delaying the enforcement of the judgment without any security to cover contingencies that might arise between the adjournment of the court and the time allowed. To meet this hardship, a great hardship, where the terms were long, covering several months, as in the cities, the Act of 1885 was passed. It was as f ollows:
“ ‘ (Section 1.) That hereafter when an appeal or an appeal in the nature of a writ of error, is prayed from a judgment or decree of an inferior court to the Supreme Court, the appeal bond shall be.executed, or the pauper’s oath taken, within thirty days from the judgment or decree, if the court hold so long, otherwise, before the adjournment of the court; but for satisfactory reasons, shown by affidavit or otherwise and upon application'made within the thirty days, the court may extend the time to give bond or-take the oath in term or after adjournment of the court? but in no case more than thirty days additional.
“ ‘(Section 2.) That in all cases where the appeal has not been prayed for within the time prescribed in the first section of this Act, the judgment or decree may be executed.'’ ’
“ ‘This Act covers all the ground previously covered by Acts 1871, chapter 59, and wms intended to take its place, and the two were improperly amalgamated in section 4898 of Shannon’s Code.
“ ‘We thus see the evil which was intended to be remedied by the Act of 1885 and the previous Act. There was no purpose on the part of the Legislature to interfere with the practice upon the subject of motions for new trial. It was held by this court in the case of Railroad v. Johnson, 16 Lea, 387, that it could not be evaded on the theory that the judgment was within the breast of the judge during the term, and that he could set it aside after the expiration of thirty days and enter a new judgment from which the appeal could be prosecuted. ’
*145“As stated by Judge Neil, tbe two Acts, — chapter 59 of the Acts of 1871 and chapter 65 of the Acts of 1885 — were improperly combined in section 4898 of the Code, as the Act of 1885 was intended to cover all the ground previously covered by the Act of 1871 and was intended to apply to suits in- chancery as well as actions in the circuit courts.
“The Act of 1885 expressly states:
“The appeal shall be prayed for and appeal bond shall be executed, or the pauper’s oath taken within thirty days from the entry of the judgment or decree, if the court holds so long; otherwise, before the adjournment of the court, but for satisfactory reasons shown by affidavit or otherwise, and upon application made within the thirty days, the court may extend the time to give bond or take the oath in term or after adjournment of the court: but in no ease more than thirty days additional.
“This Act simply means that the appeal must be prayed for and appeal bond executed or pauper’s oath taken within thirty days from the date of the entry of the judgment or decree, if the court holds so long, but if the court adjourns before, then these requisites for appeal must be complied with before the adjournment of court; but upon application made before adjournment of the court, within thirty days after the entry of the judgment or decree, the court may extend the time an additional thirty days in which to give bond or take the oath.
“In other words, if the court remains in session longer than thirty days after the judgment or decree, the bond or oath must be filed within the thirty days, unless, appellant makes proper application for a further extension of time, upon which application, and, if satisfactory reasons are shown by affidavit or otherwise, the court may grant additional thirty days’ extension, in which to file the bond or take the pauper’s oath, but the court has no power to grant longer than thirty days at any one time. If the court remains in session he may apply at any time within the thirty days for the additional thirty days. If the court adjourns before the thirty days expire, the appellant may, upon application be granted further time not to exceed thirty days additional, and bond or oath may thus be filed in term or after the adjournment of court; but, of course this additional thirty days’ extension should not be granted except upon proper application and for satisfactory reasons shown by affidavit or otherwise. The nonresidence of the appellant or other situations may arise whereby it would work a hardship on appellant to be compelled to immediately execute the bond. These and other condition^ might arise that would be satisfactory reasons for the judge or Chancellor to grant the additional thirty days’ extension *146under the statute, but in no event, is the Chancellor or judge authorized to grant sixty days’ extension in the first instance.”
Hence, in this case it is clear that the'appeal bond was filed too late, but the execution of the appeal bond was not made a condition precedent to the appeal, and we may allow the plaintiff in error to file an appeal bond in this court. See, Jones v. Ducktown Sulphur, Copper & Iron Company, 1 Cates, 375.
The distinction made by our Supreme Court, is that where the trial court grants the appeal without conditions then the appellate court immediately acquires jurisdiction without more, and if the appellant attempts to execute an appeal bond in the lower court, but it is defective for some reason, or, if filed too late, then this court may permit a new appeal bond to be executed in this court; but where the appeal was granted upon condition that a proper appeal bond be executed within a certain time, within the thirty days allowed by the statute, then the appellate court does not acquire jurisdiction until that condition has been complied with. If the condition has not been complied with then the appeal has not been perfected. See Morris v. Smith, 1 Shan. Cases, 27; Hale v. Parmley, 1 Shan. Cases, 29.
• The appeal bond, in this case having been filed thirty-seven days after the entry of the order granting the appeal, which is not within the time allowed by the statute, it is a nullity. The appeal must be dismissed unless he files another bond in this court. • Therefore, an order will be entered allowing the plaintiff in error fifteen days, in which to make and file a good and solvent appeal bond in this court, otherwise the appeal will be dismissed.
OPINION ON THE MERITS.
On a former day of this term, November 28, 1925, the plaintiff in error was allowed fifteen days in which to file a proper appeal bond, which order has been complied with, and the case is now before us on its merits.
This is an action to recover damages for personal injuries and for damages to plaintiff’s automobile', caused by a collision with defendant’s freight train at a public crossing outside the corporate limits of the town of Lawrenceburg but within one mile of the corporate •limits of said town.
The plaintiff sued for two thousand dollars, and the declaration contains four counts, two of which are for damages for personal injuries — one for the violation of the statutory precautions, Shannon’s Code; section 1574, subsections 2, 3 and 4, and the other a common-law count alleging, in effect, that said crossing was dangerous, as plaintiff’s view was obstructed by peach trees and other shrubbery so that he could not seei a train approaching' the crossing from the north, and that defendant’s engine and train were being run, at the time, at a dangerously rapid rate of speed, noiselessly coasting down *147grade, and tbat its servants gave- no alarm or notice of its approach to said crossing at and immediately before the accident; while the two other counts were for damages to plaintiff’s automobile — one for the violation of said statutory precautions, above mentioned, and the other a common-law count for a breach of the common-law duties, as above set out.
The defendant pleaded the general issue of not guilty.
The plaintiff was permitted to amend his summons and declaration so as to sue for $3,000.
The first trial resulted in a verdict of $1,000 for the plaintiff, which was set aside, and the case was again tried by the court and a jury. Motions were made for peremptory instructions, both, at the close of the plaintiff’s proof, which was overruled, and at the close of all the evidence. The last motion was sustained and the court directed a verdict for the defendant. Plaintiff excepted and moved the court for a new trial.
Said motion for a new trial was, in substance, that the court erred in directing a verdict:
(1) Because the evidence conflicted as to whether the defendant sounded the whistle at a distance of one mile from the corporate limits of the town of Lawrenceburg and at short intervals until the train reached the station.
(2) Because the evidence conflicted on a material question as to whether a peach tree in full foliage and other shrubbery obstructed plaintiff’s view of the track and the moving train on his approach to and entry upon the crossing at the time the accident occurred.
(3) Because, the declaration alleged that the defendant was negligent, in that, no one upon the locomotive was on the lookout ahead, and that the engineer testified that he was on the lookout ahead and blew the whistle, whereas, he had stated to the plaintiff and others, in a conversation after the accident, that he was at the time looking across the country and was not looking ahead on approaching the crossing and did not see plaintiff, which conflict in the evidence should have been submitted to the jury.
(4) That the declaration alleged a breach of the statutory precautions, in that, the defendant’s agents and servants did not sound the whistle at one mile from the corporate limits and at short intervals until it reached the station, and that it had no one upon the locomotive upon the lookout ahead, and that when the plaintiff entered upon the track it failed to sound the alarm whistle and to put down the brakes, and to do anything possible to avoid the accident; and, that the declaration further alleged that the train was, at the time of the accident, running at *148a dangerous and rapid rate of speed, and its servants gave no alarm or notice of tbe approach to the crossing, and that there was material testimony both for and against these theories, and proof on both sides as to every allegation, which should have been submitted to the jury,.
The court overruled said motion for a new trial, and plaintiff excepted, -and has appealed in error to this court and has assigned errors, that is, he has not formally assigned errors, other than that the court erred in directing a verdict against the plaintiff, but his brief, attached to his assignment of errors, to some extent discusses some of the grounds of his motion for a new trial, properly citing the pages of the record and the law. This is perhaps sufficient in a case of this kind, where a verdict has been directed, in view of the holding in the case of Wallace v. Goodlett, 104 Tenn., 670, in which our Supreme Court said:
“When an assignment of error, which is not in itself specific and definite, is accompanied by brief that is full, definite, and explicit, the two papers will be taken and considered as one, and together constitute a sufficient compliance with the rule of this court as to assignment of error.”
But it has been repeatedly held that an assignment of error must state not only the action of the court complained of, but also, the reasons why it is' erroneous. (Powers v. McKenzie, 90 Tenn., 167; Railway v. Overcast, 3 Hig., 235; Wheeler v. Parr, 3 Hig., 375). Errors should be formally assigned, briefly setting out the grounds with as much precision as in a motion for a new trial, and giving the reasons why the trial court was in error, then argument should follow as laid down by the rules of this court. (151 Tenn., 815; 1 Tenn. App. Rep., 830). Counslel should familiarize themselves with these rules and practice accordingly, so that much valuable time may be saved by the court.
Evidently that part of the declaration, in which subsection 2 of the statutory precaution (Shannon’s Code, sec. 1574) requiring that the whistle or bell be sounded at a distance of one-fourth of a mile from the crossing, has been abandoned by the plaintiff in error, as there was no proof that the public crossing had been designated as such' by the required statutory signals. The burden of proof on this proposition was on the plaintiff. See Railroad v. McDonough, 13 Pick., 255; Graves v. Railroad, 18 Cates, 166.
Apparently the common-law counts have also been abandoned by the plaintiff in error. We cannot tell from an examination of his brief whether he is still relying upon them. However, the trial judge was not in error in directing a verdict as to them, because the plaintiff was guilty of negligence that proximately contributed to his injuries, in that, according to his own evidence, his view was not obstructed when he was within from fifteen to twenty feet of the *149track at tbe crossing. He lived within a short distance of the crossing, and had passed over it daily for several months, and knew that trains noiselessly coasted down grade for one-half mile coming south approaching said crossing, and that there were peach trees and other shrubbery that obstructed his view on the north until he was within from fifteen to twenty feet of the track. Knowing all these things, it was his duty to slow down, and look and listen on approaching the track, the failure of which is negligence that proximately contributed to the accident, and bars the recovery in common-law actions. See Opinion of the Court of Civil Appeals rendered by Judge Clark in in the case of R. E. Meriwether, Admr., v. N. C. & St. L. Railway and others, Dickson County Law, decided at Nashville on December 6, 1924, which was affirmed by the Supreme Court; Railroad v. McMillan, 134 Tenn., 490; Todd v. Railroad, 135 Tenn., 92.
It is a. well-settled rule of law that a railroad track is an admonition of danger; under such circumstances, and that it is an act of negligence for a person to go upon such track without looking and listening.
This leaves only the two statutory counts which allege the nonobservance of subsections 3 and 4 of Shan. Code 1574, to which the assignments of error are really directed.
It is insisted that the defendant did not observe the precautions required by subsection 4, in that, it had no one upon the locomotive upon the lookout ahead, and that when he became an obstruction upon the track it failed to sound the alarm whistle and put down the brakes, and to use every means possible to stop the train and to avoid the accident.
The plaintiff’s testimony is that he lived between the Jackson Highway and the defendant’s railroad track, and about three hundred or four hundred yards north of said crossing, that said Jackson Highway leads out of Lawrenceburg north, and parallels the railroad for almost a mile, when it turns abruptly to the right and crosses said railroad track, and then leads north parallel with the railroad for a distance of three or four miles; that it is down grade from plaintiff’s house to said grade crossing, and that it was customary for the trains in going south to cut off the steam and.coast or drift down grade past said crossing; that plaintiff owns a farm where he lives just north of the crossing and also owns and operates a cotton gin in Law-rencebúrg, and it is necessary for the plaintiff to go from his residence to his cotton gin, passing over said crossing, daily,. Plaintiff further testified “for a considerable distance south of this crossing the railroad was to- the east and to the right of the plaintiff, and but a short distance away and there was no obstruction as to the view of the railroad south of the crossing, but plaintiff said that where the highway turned east to cross the railroad going north, there were two *150peacb trees, one on tbe railroad right-of-way and one just inside of a garden or truck patch off the right-of-way, and that there was also a small oak tree and other shrubbery that cut off the view of a person going north on the highway until they got within fifteen or twenty feet of the railroad.”
Witness stated that he was well acquainted with this crossing and was in the habit of crossing it two or three times a day for several months prior to the accident, and stated that he was driving at the time of the. accident at the rate of about fifteen miles per hour, and that as he approached the crossing he listened but did not hear any train, north of the crossing, but he did not stop or check his car, and when he was within fifteen or twenty feet of the railroad track, where his view north of the crossing was not obstructed, he saw a freight train aproaching at a distance of between forty-five and fifty feet, and that he thought that about the time he saw the train the engineer , saw him and sounded the alarm whistle. He said the train “was traveling at a pretty fast speed but he did not know how fast,” that there was a ditch on each side of the highway at the point where he discovered the approaching train, that his brakes were in good condition but that he knew that he could neither stop nor turn to either side on account of these ditches and that he did not have time to stop his car as he was too near the track and knew that if he made an effort to do so and applied his brakes, that the car would more than likely stop on the track and that he would be killed, so that he thought the only chance that he had was to speed up the car and try to get across before the train, that he attempted this by feeding the ear more gas, and that he had almost crossed the track, but not entirely, and that the front of the engine struck the rear of his car and whirled it around, damaging the car and injuring him. He further testified that when the train struck his car and whirled it around he heard the brakes of the train go on and they “squeaked and screamed and he saw fire flying from the wheels,” and that the brakes were not applied until' the car was struck.
No other eye-witness for the plaintiff testified with reference to the breach of the statutory precautions required by subsection 4. The plaintiff and his wife testified to a certain conversation had with the engineer of the train a few days after the accident at Florence, Alabama. They testified, that in this conversation, the engineer stated that he was looking off across the country and did not see the plaintiff, and-could not have seen him on account of the obstruction.
By Shannon’s Code, section 1575, every railroad company that fails to observe the statutory precautions is made responsible for all damages to persons or property occasioned by, or resulting from, any accident or collision that may occur. The- burden is on the plaintiff to show that the injuries were caused as a result of the collision *151while he was an obstruction on the track, and then the burden of proof' shifts to the defendant to show the observance of the statutory precautions. Shannon’s Code, section 1576.
The defendant’s witnesses testified that it did observe said statutory precautions, in that, the engineer was on the engine looking ahead, and had good eyesight, that the train was running at the rate of about twenty-five miles per hour, was equipped with air brakes, in good condition, and when the automobile appeared within fifteen or twenty feet of the track, the alarm whistle was sounded, the air brakes immediately applied, and caught at once, and the train (consisting of an engine, seventeen cars and caboose) ran about a train’s length before it stopped; that applying the brakes and sounding the alarm whistle was all that they had time to do or could do, and that it was impossible to stop the train and avoid the collision, and that there ,was nothing else that could have been done to avoid the accident. The plaintiff has introduced no competent proof to the contrary.
The fact that the engineer told the plaintiff shortly after the accident that he was looking across the country and that he did not and could not see him on account of the obstruction was not admissible as substantive evidence against the railroad, but was only admitted for the purpose of contradicting the witness and only went to his credibility.
We think there is no statutory liability where the freight train was running at the rate of twenty-five miles per hour and was only forty-five or fifty feet away when the automobile suddenly came into view, fifteen or twenty feet from the track, and the alarm whistle was immediately sounded and the brakes put down, and every possible means employed to stop the train and to prevent the accident. It results that this assignment of error must be overruled.
The main insistence raised by the assignment of error is the nonobservance of subsection 3 of the statutory precautions. That section is as follows:
"On approaching a city or town the bell or whistle shall be sounded when the train is at a distance of one mile, and at short intervals till it reached its depot or station; and on leaving a town or city the bell or whistle shall be sounded when the train starts and at intervals till it has left the corporate limits.” Shannon’s Code, see. 1574, subsection 3.
The plaintiff below introduced several witnesses to show that these precautions had not been observed, while the defendant introduced witnesses tending to show that they had been observed; it is, therefore, insisted by the plaintiff in error that this was a controverted fact that should have been submitted to the jury, while the defendant in error insists that this accident happened between the corporate limits of the town of Lawrenceburg and the one mile post, and on *152the outside of the corporate limits, and tbat tbe legislature never intended that this section should be applicable to a collision that tools place between a point a mile from the corporate limits and the limits of an incorporated town, and that this statute was only intended to apply to persons within the corporate limits.
There is a preliminary question to be settled before we can consider this assignment. Defendant in error insists that there is no proof that the town of Lawrenceburg was incorporated and no sufficient proof as to the location of its corporate limits, and that the courts cannot take judicial knowledge of such facts. These questions have been settled in Tennessee by our Supreme Court. The courts will take judicial notice of the incorporation of a town by the State law, but it cannot take judicial notice of the location of the corporate limits or boundaries thereof. See Telephone Co. v. Weaver, 146 Tenn., 511; 243 S. W., 299; Alexander v. Railroad, 139 Tenn., 52, and authorities there cited. After an examination of the record, we think that while the exact location of the corporate limits is not established, yet we think that the proof shows that the collision occurred outside the corporate limits, between the one mile whistling post and the corporate limits of Lawrenceburg.
After an examination of the authorities, we are of the opinion that said subsection 3 applies only to accidents within the corporate limits, and not to injury received outside the corporate limits of incorporated towns.
So far as we have been able to ascertain our Supreme Court has never directly passed on this exact question, although in discussing this statute that court said:
"The object of the statute was to give notice of the approach of this heavy and dangerous machinery where it was required to pass through centers of population, a sufficient length of time to thoroughly advertise its going.” See Railroad v. Davis, 104 Tenn., 442, citing approvingly Webb v. Railroad, 88 Tenn., 119.
In the latter case that court held that statute only applied to incorporated towns, as it was manifest that corporate limits meant the limits of an incorporated town.
Evidently the legislature, in passing these subsections had in mind two classes of travelers, those who cross the tracks on the outside of the corporate limits and those who cross the tracks inside the corporate limits of incorporated towns. Subsection 2 was for the protection of those crossing on the outside of the corporate limits, where the crossing had been marked with danger signals as provided in subsection 1; while subsection 3 was for the protection of persons in incorporated towns, where there were streets and highways crossing the railroad tracks, not under the control of the county authorities, and not thus marked.
*153These subsections 2 and 3 are not concurrent with, or declaratory of the common law, but the duties imposed are wholly statutory. If any part of the subsection was intended for the protection of persons traveling- in the suburbs of towns, outside the corporate limits, it would bo unreasonable to hold that the legislature meant to protect those from incoming trains and not to protect them from trains going out of towns on the same tracks.
Now if the section was not for the protection of persons at crossings outside the corporate limits, then such persons cannot invoke the statute, and there is no liability because of its nonobservance, as it is well settled that persons cannot avail themselves of the provisions of a statute that was not intended for their protection. See Chattanooga Railway & Light Co. v. Bettis, 139 Tenn., 332; Carter v. Redmond, 142 Tenn., 262.
It was said in the case of Ill. Central Railway Co. v. Adams, 2 Hig., 118, that if the accident happened on the outside of the corporate limits of an incorporated town, and between the one mile whistling post and said corporate limits, this subsection 3 applied, and that the railroad was liable for the nonobservance of the statute. But upon an examination of this ease, it will be seen that this statement was dictum and we do not think that we are bound by it. As above stated, we think that the observance of the requirements set out in subsection 3 is for the protection of those within the corporate limits.
It results that this assignment of error must be overruled.
It is insisted by defendant in error that the plaintiff in error’s right of action is barred, because he failed to bring his automobile to a full stop when within not less than ten feet nor more than fifty feet of the nearest rail, as required by chapter 36 of the Acts of 1917. We think this proposition should not be sustained. We have had this question up several times, and have held that where the plaintiff fails to stop, as required b3r said statute, that his failure is contributory negligence that should be taken into consideration by the jury in mitigation of damages on the statutory counts. See opinion of this court by Judge DeWitt, in the ease of Southern Railway Co. v. Ed. Malone, Bradley County, May Term, 1925, Knoxville, and also, the opinion of this court by Presiding Judge Faw, in the case of Tennessee Central Railroad Co. v. Roy W. Zearing, Davidson County Law, September Term, 1925, Nashville, filed December 19, 1925, post p. 451.
However, in view of the conclusions already reached in this opinion, this question becomes immaterial.
It results that the assignments of error are overruled, and the judgment of the lower court is affirmed. The cost of the appeal is adjudged against plaintiff in error and the sureties on his appeal bond, for which let execution issue..
Faw, P. J., and DeWitt, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1563411/ | 16 So.3d 825 (2009)
IN RE J.B.
L.B.
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES.
No. 2D08-1705.
District Court of Appeal of Florida, Second District.
August 21, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563437/ | 960 A.2d 838 (2008)
COM.
v.
MALIN.
No. 554 MAL (2008).
Supreme Court of Pennsylvania.
November 20, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563438/ | 16 So.3d 37 (2009)
Frances Jones PREWITT, Individually and As the Executrix of The Estate of Rufus Clarence Prewitt, Jr., Deceased and Elaine Crittenden, Individually, Appellants
v.
Jimmy W. VANCE and Torrey Wood and Son, Inc., Appellees.
No. 2007-CA-00680-COA.
Court of Appeals of Mississippi.
January 6, 2009.
Rehearing Denied June 9, 2009.
Certiorari Denied August 27, 2009.
*38 Stephen Nick, Greenville, attorney for appellants.
Arnulfo Ursua Luciano, Cleveland, attorney for appellees.
EN BANC.
CARLTON, J., for the Court.
¶ 1. This case comes before the Court from the order of the Circuit Court of Washington County granting summary judgment to Jimmy W. Vance and Torrey Wood and Son, Inc., in a suit filed against them by Frances Jones Prewitt (Frances) and Elaine Crittenden (Elaine), collectively "Prewitt," seeking damages arising out of an automobile accident. On appeal, Prewitt argues that the trial judge erred in granting summary judgment because genuine issues of material fact existed as to whether Vance was negligent. We find no error and affirm.
FACTS
¶ 2. On August 29, 2002, Frances and her husband, Rufus Clarence Prewitt, Jr., were traveling north on Highway 61 in Washington County, Mississippi; Ronnie Pettite was also traveling north on Highway 61, behind the Prewitts' vehicle. Vance was traveling south on Highway 61 in the course and scope of his employment with Torrey Wood and Son, Inc. Pettite's vehicle, traveling at an excessive speed, collided with the rear of the Prewitts' vehicle, sending the Prewitts' vehicle out of control and into the northbound lane. Vance noticed the collision and the Prewitts' vehicle careening toward him. In an effort to avoid a collision, Vance pulled onto the shoulder of the northbound lane; *39 however, the Prewitts' vehicle hit Vance's vehicle. As a result of the accident, Rufus died, and Frances was injured.
¶ 3. Frances, individually and as executrix of Rufus's estate, filed suit against Vance, Torrey Wood and Son, Inc., and Pettite for the wrongful death of Rufus and for the personal injuries that she sustained in the accident. Rufus's daughter, Elaine, later joined in her individual capacity as a plaintiff, asserting a claim for the loss of love and companionship of Rufus. Pettite and Prewitt reached a settlement, and Pettite was dismissed from the action. Thus, the suit proceeded against Vance and Torrey Wood and Son, Inc.
¶ 4. By deposition, Vance testified that he was traveling fifty miles per hour at the time of the accident.[1] He stated that the collision between Pettite and the Prewitts occurred approximately 300 feet in front of his vehicle. Vance described the accident as follows:
Okay, as I was traveling north Mr. and Mrs. Prewitt was going [sic] headed south on that section of highway. Mr. Pettite came in behind them at a rather fast speed and hit them in the rear knocking their car out of control across my lane onto the shoulder of the highway where I had already gotten off onto the shoulder trying to miss them and they hit me on the shoulder of the highway.
¶ 5. Dennis Weaver, an officer with the Mississippi Highway Patrol, also gave deposition testimony as a certified accident reconstructionist. Officer Weaver responded to the scene of the accident to investigate. His description of the accident was consistent with Vance's. Officer Weaver testified that Vance's conduct did not contribute to the accident. He also opined that Vance was not speeding and did not break any laws in his operation of the vehicle at the time of the accident.
¶ 6. Frances did not remember anything about the accident. Elaine was not present at the accident and possessed no personal knowledge of the surrounding circumstances.
¶ 7. Vance and Torrey Wood and Son, Inc., filed a motion for summary judgment and attached the depositions of Frances, Elaine, Vance, and Officer Weaver. Vance argued that Prewitt had produced no evidence to rebut Vance's and Officer Weaver's accounts of the accident, both of which indicated that Vance was not negligent.
¶ 8. Prewitt pointed to a statement in Vance's deposition testimony that he (Vance) noticed a shed on fire in a field moments before the accident. Prewitt claimed that Vance was distracted by the shed-fire and failed to keep a proper lookout to avoid the second collision. Prewitt also pointed to an inconsistency between Vance's testimony and Officer Weaver's testimony concerning the rotation of the Prewitts' vehicle as it spun out of control and toward Vance: Vance recalled that the Prewitts' vehicle turned clockwise ninety degrees; Officer Weaver testified that the Prewitts' vehicle turned counterclockwise 360 degrees. Essentially, Prewitt argued that Vance would have noticed the rotation of the Prewitts' vehicle had he not been distracted by the shed-fire and kept a proper lookout.
¶ 9. The trial court granted summary judgment in favor of Vance, finding that Prewitt failed to produce evidence of significant and probative value to rebut Vance's showing that no genuine issue of *40 material fact existed as to whether Vance was negligent. Aggrieved by the trial court's decision, Prewitt appeals to this Court.
STANDARD OF REVIEW
¶ 10. We review the trial court's grant of summary judgment de novo. Eckman v. Moore, 876 So.2d 975, 988(43) (Miss. 2004). Summary judgment shall be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). The evidence is viewed in the light most favorable to the non-moving party, in whose favor all reasonable favorable inferences are drawn. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss. 1983). "[S]ummary judgment is improper only where sufficient evidence exists for a reasonable jury to find for the plaintiff." Strantz ex rel. Minga v. Pinion, 652 So.2d 738, 741 (Miss.1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
DISCUSSION
Whether the trial court erred in granting summary judgment in favor of Vance and Torrey Wood and Son, Inc.
¶ 11. Prewitt argues that a genuine issue of material fact existed as to whether Vance was negligent. Prewitt relies on Vance's statement that he saw the shed-fire shortly before the accident and claims that Vance failed to keep a proper lookout.
¶ 12. In a negligence action, "the plaintiff bears the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and injury." Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346, 1355 (Miss.1990). In a summary judgment proceeding, the movant bears the initial burden of demonstrating that there is no genuine issue of material fact. Moss v. Batesville Casket Co., 935 So.2d 393, 398(16) (Miss.2006) (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). We find that Vance and Torrey Wood and Son, Inc., met this burden.
¶ 13. Generally, one is under a duty to act "as a reasonable and prudent person would have acted under the same or similar circumstances." Knapp v. Stanford, 392 So.2d 196, 199 (Miss.1980). More specifically, an automobile driver has a duty "to keep a reasonable lookout" and "take reasonably proper steps to avoid an accident or injury to persons and property after having knowledge of [a] danger." Shideler v. Taylor, 292 So.2d 155, 156-57 (Miss.1974).
¶ 14. In their summary judgment motion and the depositions attached to it, Vance and Torrey Wood and Son, Inc., demonstrated that there was no genuine issue of material fact as to whether Vance breached his duty to act reasonably under the circumstances. Frances recalled nothing from the accident, and Elaine was not present. Vance testified that he was not speeding at the time of the accident. Officer Weaver also opined that Vance was not speeding. Vance also testified that he saw the collision between the Prewitts and Pettite and attempted to, but could not, avoid colliding with the Prewitts' vehicle. Officer Weaver's testimony, with minor discrepancies, corroborated Vance's account of the accident and further indicated that Vance did not break any laws and did nothing to contribute to the accident.
¶ 15. Because Vance demonstrated that there was no genuine issue of material fact, Prewitt was required to then come *41 forward with "supportive evidence of significant and probative value" to show the existence of a genuine issue of material fact. Simpson v. Boyd, 880 So.2d 1047, 1050(13) (Miss.2004) (citation omitted). We find that Prewitt offered only conclusory allegations unsupported by the evidence to infer that Vance failed to keep a reasonable lookout.
¶ 16. Although Vance testified that he noticed the shed-fire before the accident, he also stated that he saw the collision between the Prewitts and Pettite, and he attempted to avoid the second collision. The conclusion that, because Vance saw the shed-fire, he was distracted and failed to keep a proper lookout is a strained inference that requires conjecture and speculation. This is insufficient to defeat summary judgment. See, e.g., Luvene v. Waldrup, 903 So.2d 745, 748(10) (Miss. 2005) ("[t]he non-moving party's claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.") (citation omitted). Furthermore, the evidence established that the collision between the Prewitts and Pettite occurred 300 feet from Vancea short distance allowing little time for reaction considering that the two vehicles were traveling toward each other at approximately fifty miles per hour.
¶ 17. We find that Prewitt failed to present evidence of significant and probative value to establish a genuine issue of material fact as to Vance's negligence. The evidence in the record was insufficient to allow a reasonable jury to find that Vance breached the duty to act with reasonable care under the circumstances. Accordingly, we find that the trial judge did not err in granting summary judgment in favor of Vance.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
NOTES
[1] The speed limit on the stretch of highway where the accident occurred is fifty-five miles per hour. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563452/ | 960 A.2d 993 (2008)
289 Conn. 598
STATE of Connecticut
v.
Lawrence SMITH.
No. 17731.
Supreme Court of Connecticut.
Argued September 12, 2008.
Decided November 25, 2008.
*998 Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).
Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).
ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.
KATZ, J.
The defendant, Lawrence Smith, appeals[1] from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a)[2] and 53a-8 (a),[3] felony murder in violation of General Statutes §§ 53a-54c[4] and 53a-8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a)[5] and 53a-54a, conspiracy to commit *999 robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(2)[6] and 53a-48 (a), and hindering prosecution in the first degree in violation of General Statutes § 53a-165 (5).[7] On appeal, the defendant contends that the trial court: (1) violated his right to a speedy trial when it improperly denied his motion to dismiss the charges against him following the entry of a nolle prosequi of the state's initial charges; and (2) violated both his constitutional rights under the confrontation clauses of the federal and state constitutions and the rules of evidence when it admitted into evidence a recorded conversation between a coconspirator and a jailhouse informant that implicated the defendant in the crimes charged. We reject the defendant's claims and, accordingly, we affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On July 21, 2000, Robert Marrow and Jonathan Rivers, acting on the orders of Miguel Estrella, a drug dealer in Meriden, met the victim, Juan Disla, who was a rival drug dealer, at a Dairy Queen in Meriden to rob him. During the course of the robbery, Marrow shot the victim in the leg. Marrow contacted Estrella for instructions and was told to drive to the defendant's house. Marrow and Rivers took the victim, whom they had bound with duct tape, to the defendant's house, where Estrella and the defendant removed money and cocaine from the victim's vehicle. Thereafter, the defendant, Estrella, Rivers and Marrow drove the victim to a remote location in a wooded area in the Higganum section of Haddam, where the victim was suffocated to death. The four men left the victim's body in the woods and returned to Meriden. That evening, Estrella, Marrow, Rivers and some friends drove the victim's car to New York state and abandoned it on the highway, where it eventually was vandalized.
The state also offered evidence, which the defendant unsuccessfully challenges in this appeal, to establish the following additional facts. Two days after the murder, Estrella and the defendant returned to the location of the victim's body with a chainsaw, plastic buckets and several containers of acid. The defendant used the chainsaw to dismember the body while Estrella watched. The defendant and Estrella then placed the body parts in the buckets and covered them with acid to destroy them. The defendant subsequently disposed of any remains. The victim's body was never recovered, and no bloodstains, DNA or bones ever were found.
The record reflects the following procedural history. In 2001, the defendant was arrested in connection with the murder of the victim. He was charged with conspiracy *1000 to commit murder in violation of §§ 53a-48 (a) and 53a-54a, and kidnapping in the first degree in violation of General Statutes § 53a-92.[8] On December 5, 2001, after the defendant had moved for a speedy trial, the state entered a nolle prosequi of the charges pursuant to the missing witness provision of General Statutes § 54-56b[9] and Practice Book § 39-30.[10] The state represented that Estrella, an essential witness in the case, was asserting his fifth amendment privilege against selfincrimination and therefore would be unavailable to testify. The defendant filed a motion to dismiss the charges on the ground, inter alia, that he had been denied a speedy trial. The court, Fasano, J., denied the motion, and thereafter, the defendant was released from custody.
Pursuant to a warrant dated March 9, 2005, the defendant subsequently was rearrested in connection with the murder of the victim. He was charged in a long form information with murder, felony murder, conspiracy to commit murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree. The defendant pleaded not guilty and, after a jury trial, was found guilty of all the charges. In accordance with the verdict, the trial court, Alexander, J., imposed a total effective sentence of seventy-five years imprisonment. This direct appeal followed. Additional facts and procedural history will be set forth as necessary.
I
The defendant's first claim is that the trial court improperly denied his motion to dismiss in violation of his right to a speedy trial under the sixth amendment to the federal constitution.[11] The defendant raises the following theories to support this claim: (1) in accepting the state's entry of a nolle prosequi, the trial court improperly relied on the state's representation that its *1001 essential witness would be rendered unavailable because the witness intended to invoke his fifth amendment privilege against self-incrimination; (2) the trial court failed to recognize that this court's holding in Cislo v. Shelton, 240 Conn. 590, 692 A.2d 1255 (1997), required that the court construe the entry of the nolle prosequi as functionally equivalent to a dismissal of all charges, thereby precluding the refiling of charges arising from the same factual scenario several years later; and (3) the trial court improperly failed to apply the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which would have established that the defendant's right to a speedy trial was violated. In response, the state contends that: (1) the trial court properly entered the nolle prosequi under the missing witness provision because it was entitled to rely on the state's representation that its essential witness had become unavailable based on the witness' intent to invoke his fifth amendment privilege against self-incrimination;[12] (2) the holding in Cislo does not compel a trial court to construe a nolle prosequi as the functional equivalent of a dismissal "with prejudice," and in any event the state was not precluded from bringing charges against the defendant on previously uncharged crimes; and (3) the defendant's right to a speedy trial was not violated under Barker. We disagree with the defendant's first two claims and decline to reach the third claim because the record is inadequate for review.
The following additional undisputed facts and procedural history are relevant to our resolution of the speedy trial claim. As we previously have indicated, following the state's nolle of the charges against the defendant on the basis of a representation from Estrella's defense counsel that Estrella was unavailable because he intended to invoke his fifth amendment privilege against self-incrimination if called to testify, the court denied the defendant's motion to dismiss the charges and ordered that he be released.[13] When the defendant subsequently was arrested in 2005 in connection with Disla's murder, the state charged him again with conspiracy to commit murder and also charged him with murder, felony murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree. On May 5, 2005, the defendant moved to dismiss the charges, claiming that his right to a speedy trial had been violated because the state first had charged him with crimes in connection with Disla's murder four years previously and, through the entry of the nolle prosequi, indefinitely had postponed resolution of those charges. The defendant contended that, at the December *1002 5, 2001 proceeding, the trial court improperly had accepted the state's representation that its essential witness was unavailable due to his anticipated assertion of his fifth amendment right to remain silent. The defendant asserted that the trial court was obligated to inquire further into the unavailability of the witness before it found him unavailable, noting that the state could have granted the witness immunity and thus rendered him available to testify by removing the threat of self-incrimination. Because the trial court had not done so, the defendant contended that it improperly had made a finding of unavailability, thereby rendering the entry of the nolle prosequi pursuant to § 54-56b improper. Further, the defendant contended that, in accordance with this court's holding in Cislo, the nolle effectively was transformed into a dismissal because more than thirteen months had elapsed since the entry of the nolle; see General Statutes § 54-142a (c);[14] and such dismissal barred his reprosecution.
The trial court, Damiani, J., denied the defendant's motion to dismiss. The court gave the following reasons for its ruling. First, the state had made the necessary representations to allow the nolle prosequi to enter when it informed the court that the witness was unavailable on the basis of his assertion of his fifth amendment privilege against self-incrimination. The court stated that it was not necessary to compel a witness to appear formally and assert his right against self-incrimination to support the entry of the nolle, and that it was beyond the court's authority to compel the state to offer immunity to a witness, as the defendant had suggested. The nolle therefore properly had been entered in accordance with § 54-56b. Second, the court noted that, with respect to the holding in Cislo, the nolle would indeed, after thirteen months had passed, become the functional equivalent of a dismissal, but the dismissal would be without prejudice and thus would not bar future prosecution. Finally, the court noted that, with the exception of the conspiracy to commit murder charge, the defendant had been charged with new offenses, uncharged at the time of the earlier arrest. Consequently, even if the one overlapping charge, conspiracy to commit murder, were to be eliminated, the defendant still would be subject to charges of murder, felony murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree.[15]
A
The standard of review for a ruling on a motion to dismiss is well settled. In general, "[b]ecause a motion to dismiss effectively challenges the jurisdiction of the court, asserting that the state, as a matter of law and fact, cannot state a proper cause of action against the defendant, our review of the [trial] court's legal conclusions and resulting denial of the defendant's motion to dismiss is de novo." State v. Rivers, 283 Conn. 713, 723-24, 931 A.2d 185 (2007); accord State v. Haight, *1003 279 Conn. 546, 550, 903 A.2d 217 (2006). In the present case, the factual circumstances underlying the motion to dismiss are not in dispute, and instead the defendant challenges the trial court's legal conclusions. As such, our standard of review is plenary. State v. Solek, 242 Conn. 409, 419, 699 A.2d 931 (1997) (reviewing motion to dismiss under de novo standard because "[w]here ... the question is a matter of statutory construction rather than of factual sufficiency, this determination constitutes a question of law that is reviewed de novo"); see also State v. Haight, supra, at 550, 903 A.2d 217 (questions of statutory interpretation subject to plenary review); State v. McCahill, 265 Conn. 437, 446, 828 A.2d 1235 (2003) (questions of law concerning interpretation of statute governing speedy trial motion as well as rules of practice subject to plenary review).
B
The defendant's initial contention is that the trial court improperly accepted the state's representations that a key witness in its case against the defendant was unavailable due to the witness' intent to assert his fifth amendment privilege against self-incrimination.[16] The state asserts that the trial court was entitled to rely upon the state's representation with respect to the reasons to support the entry of the nolle prosequi. We agree with the state.
Section 54-56b allows the entry of a nolle prosequi "upon a representation to the court by the prosecuting official that a material witness" is unavailable to testify. It long has been the practice that a trial court may rely upon certain representations made to it by attorneys, who are officers of the court and bound to make truthful statements of fact or law to the court. See Rules of Professional Conduct 3.3(a)(1). Against the backdrop provided by this fundamental principle of ethical conduct, this court has noted that, when determining whether to accept the entry of a nolle prosequi pursuant to § 54-56b, "the trial court need not receive evidence, and thus makes no findings of fact, to determine the accuracy of the state's representations." State v. Lloyd, 185 Conn. 199, 204, 440 A.2d 867 (1981). The representations of the state provide a sufficient basis for the entry of a nolle prosequi unless the court "is persuaded that the prosecutor's exercise of discretion [in entering the nolle] is clearly contrary to manifest public interest." Id.
In this case, the state made the appropriate representations when it introduced the letter from Estrella's counsel indicating that Estrella would be unavailable due to his assertion of his fifth amendment privilege against self-incrimination. The trial court was not required to conduct an evidentiary hearing regarding the state's representation, and nothing in the record offers any hint that the nolle was contrary to public interest. Because the representation was sufficient to support a finding that the witness was unavailable, the entry of the nolle prosequi was proper.
The defendant cannot prevail on his assertions that "the privilege against self-incrimination is a personal privilege and may not be invoked on behalf of another," and that it was improper for the trial court to accept the state's representation without conducting a further inquiry into whether the witness would assert the privilege because they improperly juxtapose two principles. The privilege against *1004 self-incrimination is personal and may not be invoked on behalf of another. See, e.g., Couch v. United States, 409 U.S. 322, 327, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); State v. Smith, 201 Conn. 659, 664, 519 A.2d 26 (1986). The privilege itself, however, is an evidentiary privilege, i.e., it is asserted to bar the admission of evidence before a tribunal. In other words, when evidence is to be presented to a court, a witness who fears self-incrimination through his testimony may assert the privilege to prevent that self-incrimination. In this case, although the privilege was personal to Estrella, the state was not seeking to assert that privilege, but, rather, merely was reporting that it had been informed that the witness, upon advice of counsel, would do so. The statute simply requires a representation by the prosecuting authority that an essential witness is unavailable, and thus, no further inquiry was required. State v. Lloyd, supra, 185 Conn. at 204, 440 A.2d 867.
C
The defendant also contends, consistent with this court's holding in Cislo v. Shelton, supra, 240 Conn. at 590, 692 A.2d 1255, that the nolle prosequi functionally converted into a dismissal pursuant to § 54-142a (c) because more than thirteen months had elapsed since the entry of the nolle prosequi in 2001. This dismissal, the defendant claims, barred the state from bringing charges against the defendant in 2005. He further asserts that the state violated his right to a speedy trial by allowing the threat of prosecution to loom over him for more than three years. We disagree.
A nolle prosequi leaves a defendant free and unencumbered by the nolled charge, and the state may continue prosecution of a defendant only after filing a new information and making a new arrest of the defendant within the statute of limitations. State v. Winer, 286 Conn. 666, 684-85, 945 A.2d 430 (2008). Because no pending charges remain to be resurrected, the defendant is not thereby subjected to "an indefinitely overhanging cloud of subsequent prosecution"; Cislo v. Shelton, supra, 240 Conn. at 607, 692 A.2d 1255; in violation of his right to a speedy trial. Moreover, because the nolle prosequi eliminates the charges, there can be no violation of a defendant's right to a speedy trial predicated solely on the entry of a nolle. State v. Lloyd, supra, 185 Conn. at 201, 440 A.2d 867 ("[t]he effect of a nolle prosequi is to end pending proceedings without an acquittal and without placing the defendant in jeopardy"); see also State v. Winer, supra, at 684-85, 945 A.2d 430, and cases cited therein.
Examining the defendant's claim, it is clear that his right to a speedy trial was not violated. The nolle prosequi properly entered in 2001. The defendant was relieved of any threat of prosecution during the intervening period between the entry of the nolle and his rearrest in 2005. Indeed, the state had to file a new information and rearrest the defendant to prosecute him.
With respect to the defendant's claim that the nolle converted into a dismissal after thirteen months had elapsed, thus barring future prosecution, the defendant erroneously equates the term "dismissal" with "dismissal with prejudice." In Cislo v. Shelton, supra, 240 Conn. at 599, 692 A.2d 1255, this court held that "the entry of a nolle plus the passage of thirteen months, which results in the automatic erasure of relevant records under § 54-142a (c), constitutes a dismissal for the purposes of § 53-39a." After reviewing the legislative history surrounding the enactment of § 53-39a, however, the court noted that a nolle was *1005 functionally equivalent to a dismissal without prejudice. Id., at 609, 692 A.2d 1255; see also State v. Talton, 209 Conn. 133, 141, 547 A.2d 543 (1988). Such a dismissal does not preclude the state from filing charges even the same ones at a later time, provided that the statute of limitations has not run. State v. Talton, supra, at 141-42, 547 A.2d 543 (noting that if state cannot make appropriate representation to allow nolle to enter, charges are dismissed and state may not reprosecute on same offense; but if state makes necessary representation and nolle enters, state is not precluded from refiling charges).
D
The defendant finally asserts that, pursuant to Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182,[17] his right to a speedy trial was violated because there was a considerable delay from the time that he first had been arrested in 2001, to the time that he was tried in 2005. We conclude that the defendant has not provided us with an adequate record to review this claim.
Under Barker, the determination of whether such rights have been violated requires a case-by-case approach in which the court examines the factual circumstances in light of a balancing test of the following four factors: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id.; State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983). In this case, however, the defendant did not ask the trial court to apply Barker and, therefore, the court did not make the factual findings required under that test. "It is well established that [i]t is the appellant's burden to provide an adequate record for review.... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003); see also Practice Book §§ 60-5 and 66-5. As the record does not contain all of the relevant factual findings, we decline to review this claim.[18]
II
The defendant's second principal claim is that the trial court improperly admitted *1006 a recording[19] of a conversation between Estrella,[20] his coconspirator, and Wayne Williams, Estrella's cellmate at the Hartford correctional center in 2000, in violation of the confrontation clause of the federal constitution[21] and the rules of evidence. Specifically, he claims that Williams' portion of the conversation should have been excluded under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as testimonial statements. The defendant further claims that the trial court improperly admitted Estrella's portion of the conversation in violation of: (1) the defendant's right to confrontation because Estrella's statements did not bear sufficient indicia of reliability pursuant to Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); and (2) § 8-6(4) of the Connecticut Code of Evidence[22] because Estrella's statements were not statements against penal interest. We reject the defendant's claims and discuss them each in turn.
The record reveals the following additional undisputed facts and procedural history that are necessary to resolve this claim. In September, 2000, Williams, a Jamaican citizen, was in federal custody for drug violations. Estrella was also in custody in the Hartford correctional center on an unrelated drug charge and was being housed in the same cell as Williams. During this time, Williams approached federal authorities, offering information about statements Estrella had made to him regarding Disla's murder. Williams agreed to wear a recording device and elicit incriminating statements from Estrella in exchange for favorable treatment. On October 4, 2000, Williams wore the device and taped his conversations with Estrella. As a result of his cooperation, despite facing a sentence ranging from five years to life in prison under the federal sentencing guidelines, Williams was sentenced to time served, a total of seventeen months in prison. He was subsequently deported to Jamaica.
*1007 The recording, which was more than four hours in length, was introduced at trial. In the recording, Estrella recounted Disla's murder in great detail. He explained that he had been the leader who planned the murder, organized his coconspirators, and was present throughout the murder and subsequent destruction of the body. Estrella described how the defendant had dismembered the body with a chainsaw and participated in its destruction by placing it in acid, and then Estrella bragged to Williams that "if you want something done right, we did it right." Estrella predicted that because they had done the job so well, the crime would never be solved unless the police were able to convince all four men who had participated to confess. Throughout the recording, Estrella portrayed the defendant as a willing participant, fully involved in the robbery and murder of the victim, who took the lead in dismembering and destroying the body, kept portions of it soaking in acid at his home to destroy it completely, and, after it had liquefied, finally disposed of it in an unknown location.
Although Williams had been deported in 2001, he returned to the United States at some point prior to the defendant's probable cause hearing and thereafter was arrested and held in custody by federal authorities in Connecticut at the time of the defendant's hearing. The state never called Williams as a witness, and Estrella was unavailable as a witness because he had refused to testify pursuant to his fifth amendment privilege against self-incrimination.
At the probable cause hearing, the state introduced into evidence the recording of Estrella's conversations with Williams as a statement against penal interest. The state stipulated that Williams was acting as a police agent. The defendant conceded that Estrella's statements were nontestimonial but argued that the admission of his statements could not satisfy the indicia of reliability necessary under Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. 2531. The trial court, Gold, J., ruled that Estrella's statements were admissible to establish probable cause because they were nontestimonial and they were reliable under the totality of the circumstances as required under Roberts. The court found that: the statements were squarely against Estrella's penal interest because they directly implicated him in an unsolved murder; they were made in a private manner and location (the prison cell); they were intended to be confidential, as evidenced by Estrella's tone and manner; and the two men had formed a sufficiently strong bond that confidences between them would not be unusual. The court also noted that, although at times Williams seemed to lead some of the discussion, Estrella was "a willing and active participant... who provided nearly all of the substance of the discussion." The court noted the fact that, in eleven pages of the transcript of the recording, Estrella had provided a highly detailed account of the crime, while Williams had responded only with meager "mm-hmms." The court, therefore, minimized Williams' role in the conversation and concluded that "the recorded statement belies any claim that Estrella was not ... the active participant in the discussion and the party who offered these detailed statements, against his own penal interest." In light of all of these factors, the court concluded that Estrella's statements "bore the particularized guarantees of reliability required by the confrontation clause."
At trial, the defendant challenged the admission of the recording, once again conceding that Estrella's statements were nontestimonial. The trial court, Alexander, J., incorporated the defendant's prior arguments from the probable cause hearing *1008 and agreed with Judge Gold's ruling at the hearing, admitting the recording into evidence.
A
We begin our analysis by setting forth the appropriate standard of review and governing legal principles. The standard under which we review evidentiary claims depends on the specific nature of the claim presented. State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). "To the extent a trial court's admission of evidence is based on an interpretation of [law], our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review." Id. "We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.... A paradigmatic example of this distinction would be a trial court's conclusion that a hearsay statement bears the requisite indicia of trustworthiness and reliability necessary for admission under the residual exception to the hearsay rule, which would be reviewed for an abuse of discretion.... By contrast, the question of whether the trial court properly could have admitted that statement under the residual exception if the admission of that type of statement expressly was barred under another hearsay exception would present a question of law over which the appellate courts exercise plenary review." (Citations omitted; emphasis in original.) Id., at 218-19, 926 A.2d 633.
As a general matter, hearsay statements may not be admitted into evidence unless they fall within a recognized exception to the hearsay rule. State v. Rivera, 268 Conn. 351, 360-61, 844 A.2d 191(2004). In the context of a criminal trial, however, the admission of a hearsay statement against a defendant is further limited by the confrontation clause of the sixth amendment. Under Crawford v. Washington, supra, 541 U.S. at 59, 124 S.Ct. 1354, hearsay statements of an unavailable witness that are testimonial in nature may be admitted in accordance with the confrontation clause only if the defendant previously has had the opportunity to cross-examine the unavailable witness. Nontestimonial statements, however, are not subject to the confrontation clause and may be admitted under state rules of evidence. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Thus, the threshold inquiries that determine the nature of the claim are whether the statement was hearsay, and if so, whether the statement was testimonial in nature, questions of law over which our review is plenary. State v. Slater, 285 Conn. 162, 170, 939 A.2d 1105, cert. denied, ___ U.S. ___, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008).
B
The defendant's first claim is that the trial court improperly admitted the recording of Williams' portions of the conversation in violation of the sixth amendment because Williams' statements were testimonial and should have been excluded under Crawford v. Washington, supra, 541 U.S. at 36, 124 S.Ct. 1354. Thus, the defendant asserts that Williams' statements were hearsay. The defendant concedes *1009 that this claim was not raised in the trial court and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state contends in response that: (1) the defendant waived this claim in the trial court and therefore is not entitled to raise it on appeal; (2) Williams' statements were not hearsay because they were not offered for their truth but instead to provide context for Estrella's statements; and (3) Williams' statements were not testimonial and therefore did not need to be excluded pursuant to Crawford. We agree with the defendant that we may review the claim under Golding, but we conclude that he cannot prevail on the merits of his claim.
As a threshold matter, we address the issue of whether this unpreserved claim is reviewable under Golding. Under Golding, a defendant may prevail on an unpreserved claim only if the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. The first two prongs govern whether we may review the claim, while the second two control whether the defendant may prevail on his claim because there was constitutional error that requires a new trial. State v. Fabricatore, 281 Conn. 469, 476, 915 A.2d 872 (2007). Whether a claim has been waived implicates the third prong of Golding, and if the claim has been waived, it fails because the defendant cannot demonstrate that a constitutional violation clearly exists. Id., at 481-82, 915 A.2d 872.
With respect to the first two prongs, we note that the record, comprised of transcripts from the trial and the probable cause hearing along with the recording in question, clearly is adequate for our review, and the claim is of constitutional magnitude because it implicates the defendant's sixth amendment right of confrontation. Consequently, we conclude that the claim is reviewable under Golding. With respect to the third prong, the state contends that the defendant waived his claim in the trial court, and, therefore, he cannot demonstrate that the alleged constitutional violation clearly exists. We disagree.
It is well settled that a criminal defendant may waive rights guaranteed to him under the constitution. Id., at 478, 915 A.2d 872. The mechanism by which a right may be waived, however, varies according to the right at stake. State v. Gore, 288 Conn. 770, 778, 955 A.2d 1 (2008). "For certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, however, waiver may be effected by action of counsel.... New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000); see also Gonzalez v. United States, ___ U.S. ___, ___, 128 S.Ct. 1765, 1769, 170 L.Ed.2d 616 (2008)." (Internal quotation marks omitted.) State v. Gore, supra, at 778, 955 A.2d 1. With respect to a fundamental right such as the right of confrontation, we must "indulge every reasonable presumption against waiver...." (Internal quotation marks omitted.) Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Accordingly, waiver of a fundamental right may not be presumed from a silent record. Blue v. Robinson, 173 Conn. 360, 380, 377 A.2d 1108 (1977), citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
*1010 It is well settled that a party may raise a claim implicating the right of confrontation for the first time on appeal. State v. Jarzbek, 204 Conn. 683, 691, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988). A defendant may waive his right of confrontation, however, either expressly or impliedly by his deliberate action. See State v. Jones, 281 Conn. 613, 636, 916 A.2d 17 (noting that defendant may waive rights of confrontation "by his voluntary and deliberate absence from trial ... disruptive conduct which requires his removal from the courtroom ... or by causing a witness to be unavailable for trial for the purpose of preventing that witness from testifying" [citations omitted; internal quotation marks omitted]), cert. denied, ___ U.S. ___, 128 S.Ct. 164, 169 L.Ed.2d 112 (2007). When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal. See, e.g., State v. Holness, 289 Conn. 535, 544-45, 958 A.2d 754 (2008) (holding that defendant waived Crawford claim when counsel agreed to limiting instruction regarding hearsay statements introduced by state on cross-examination); State v. Fabricatore, supra, 281 Conn. at 481, 915 A.2d 872 (concluding defendant waived claim when he not only failed to object to jury instruction but also expressed satisfaction with it and argued that it was proper).
The state contends that the defendant's concession both at the probable cause hearing and at trial that a portion of the recording was nontestimonial constitutes a waiver of his claim that Williams' statements improperly were introduced in violation of Crawford. We disagree. It is clear from the context of the discussion that both the state and the defendant understood that it was Estrella's portion of the recordings that were at issue. At the hearing, the state established that Estrella was unavailable and introduced the recording as a statement against his penal interest. The defendant then conceded that the recording was nontestimonial because "the declarant would not reasonably have believed it would be available at a trial later on." (Emphasis added.) Both parties thus were focused on the admissibility of Estrella's statements, and there was no mention of Williams at all. As we previously have noted, we may not presume waiver from a silent record. We therefore conclude that the defendant did not waive his Crawford claim with respect to Williams, and accordingly, we proceed to the merits of the defendant's claim.
As we previously have stated herein, the confrontation clause applies only to statements that are testimonial in nature. Davis v. Washington, supra, 547 U.S. at 821, 126 S.Ct. 2266. As a general matter, a testimonial statement "is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." (Internal quotation marks omitted.) Crawford v. Washington, supra, 541 U.S. at 51, 124 S.Ct. 1354. Although the United States Supreme Court did not provide a comprehensive definition of what constitutes a "testimonial" statement in Crawford, the court did describe three core classes of testimonial statements: "[1] ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... [2] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions [and] ... [3] statements *1011 that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial...." (Citations omitted; internal quotation marks omitted.) Id., at 51-52, 124 S.Ct. 1354.
Subsequently, in Davis v. Washington, supra, 547 U.S. at 822, 126 S.Ct. 2266 the United States Supreme Court elaborated on the third category and applied a "primary purpose" test to distinguish testimonial from nontestimonial statements given to police officials, holding: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." In Davis, the court held that statements given to a 911 operator while an emergency was unfolding were nontestimonial and could be admitted because they were given for the primary purpose of responding to the emergency. Id., at 829, 126 S.Ct. 2266. In contrast, statements given in an affidavit following a 911 telephone call to a police officer were testimonial and therefore inadmissible because they were provided to the officer after the emergency had passed for the primary purpose of developing evidence against an accused. Id., at 832, 126 S.Ct. 2266.
In State v. Slater, supra, 285 Conn. at 172 n. 8, 939 A.2d 1105, we reconciled Crawford and Davis, noting: "We view the primary purpose gloss articulated in Davis as entirely consistent with Crawford's focus on the reasonable expectation of the declarant.... [I]in focusing on the primary purpose of the communication, Davis provides a practical way to resolve what Crawford had identified as the crucial issue in determining whether out-of-court statements are testimonial, namely, whether the circumstances would lead an objective witness reasonably to believe that the statements would later be used in a prosecution." (Citation omitted; internal quotation marks omitted.) We further emphasized that "this expectation must be reasonable under the circumstances and not some subjective or farfetched, hypothetical expectation that takes the reasoning in Crawford and Davis to its logical extreme." Id., at 175, 939 A.2d 1105. With these principles in mind, we turn to the defendant's claim.
We previously have not been called upon to decide whether an informant's statements in a recording of his conversation with another party constitute testimonial evidence subject to the confrontation clause. We note, however, that although the consensus among the federal and state courts that have considered this question is that an informant's portion of a recorded conversation with a defendant made in the course of an investigation is not testimonial in nature, the deciding factor in their determination is the purpose for which the statements were introduced. See, e.g., United States v. Loving, United States Court of Appeals, Docket No. 06-4708, *7, 2007 WL 1977747 (4th Cir., July 5, 2007) (statements by nontestifying informant concerning drug transactions introduced by detective nontestimonial because introduced only for purpose of explaining course of investigation); United States v. Tolliver, 454 F.3d 660, 666 (7th Cir.2006) (holding informant's statements in recorded conversation with defendant were nontestimonial because admitted only to provide context for incriminating statements by defendant), cert. denied, 549 U.S. 1149, *1012 127 S.Ct. 1019, 166 L.Ed.2d 768 (2007); United States v. Walter, 434 F.3d 30, 34 (1st Cir.) (recorded statements of informant wearing wire to capture incriminating statements of defendant were nontestimonial when admitted only to provide context for conversation and defendant's admissions), cert. denied, 547 U.S. 1199, 126 S.Ct. 2879, 165 L.Ed.2d 907 (2006); United States v. Hendricks, 395 F.3d 173, 184 (3d Cir.2005) (holding that informant's portion of recorded conversation necessary to place conversation in context may be admitted without violating confrontation clause); Turner v. Commonwealth, 248 S.W.3d 543, 546 (Ky.2008) (informant's statements not testimonial because used only to provide context for defendant's incriminating statements); State v. DeJesus, 947 A.2d 873, 883 (R.I.2008) (recorded statements by informant wearing wire to capture statements of defendant in which informant asked defendant leading questions were nontestimonial because not offered for truth but "merely provided the framework or context within which [the] defendant's statements could be understood"). When an informant's statements were used only to provide context for the incriminating statements of the other party, these federal and state jurisdictions have concluded that the informant's statements were neither hearsay nor considered testimonial statements for the purposes of the confrontation clause.
Although we agree with this contextual approach, it must be cautioned that there is a fine line between properly admitting an informant's statements under this theory and improperly admitting statements that are truly testimonial. There is a significant risk that assertive statements made by an informant and included as part of a recording may be perceived as substantive evidence of the defendant's guilt in the absence of any limiting instruction. Indeed, in the present case, the state acknowledged at oral argument to this court that some of Williams' statements were testimonial. Therefore, we agree with the contextual approach to the extent that an informant's statements will be deemed nonhearsay and nontestimonial when the statements merely place the conversation in context and serve no substantive purpose.
In the present case, we view Williams' recorded statements as falling into three separate categories: (1) nonassertive vocalizations, e.g., "mm-hmm" or "yeah"; (2) questions Williams directly posed to Estrella about the crime;[23] and (3) statements Williams made that directly implicated Estrella or the defendant in the commission of the crime.[24] We readily conclude that the first category of statements, the nonassertive vocalizations, were nontestimonial. To the extent that they provide context for Estrella's statements, it is clear that they simply were common vocalizations used in conversation to acknowledge another person's words as a by-product of active listening rather than to assert any particular fact. Therefore, these vocalizations do not fall under the protection of the confrontation clause.
*1013 With respect to the second category, Williams' questions, we find the rationale of our sister tribunals persuasive and conclude that this category also is nontestimonial. The questions were used solely for the purpose of providing the context within which Estrella's answers could be understood. Indeed, questions standing alone make no assertions at all. They are a means to obtain information, and as such are not "`solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact'" as provided by the general definition set forth in Crawford v. Washington, supra, 541 U.S. at 51, 124 S.Ct. 1354. Although Williams did ask Estrella some leading questions, the content of his questions and, indeed, Williams' veracity, was entirely irrelevant to the guilt or innocence of the defendant. The relevant information was contained in the answers given by Estrella, which provided the factual basis necessary to establish the defendant's guilt.
With respect to the third category, Williams' assertive statements, we note that despite having contended in its brief to this court that the statements were offered only to provide context for Estrella's statements rather than for their truth, the state admitted at oral argument that some of the statements relevant to the commission of the crime were in fact hearsay and offered for their truth. For example, Williams, referring to the defendant by name, stated at one point "[Larry] always be lying" and "Larry is the one who hide the body." We agree that this category of Williams' statements were hearsay.
Whether Williams' assertive statements were testimonial, therefore, turns on an assessment of whether Williams would have a reasonable expectation that his words would be used in a subsequent prosecution. State v. Slater, supra, 285 Conn. at 172-75, 939 A.2d 1105. In this case, it is beyond dispute that Williams understood that the recording would be used in a subsequent prosecution. Indeed, in the hopes of receiving favorable treatment, he approached federal authorities specifically to obtain evidence they could use in subsequent prosecutions. He thus was aware that his words, along with Estrella's, were being recorded. The fact that Williams reasonably would have expected that the recording would be used in subsequent prosecutions compels our conclusion that his statements were testimonial and, because the defendant did not have the opportunity previously to cross-examine Williams about his statements, those statements were admitted in violation of the confrontation clause.[25] Consequently, the defendant's claim regarding this category of statements meets the third prong of Golding because he has clearly established that a constitutional violation occurred.
Our analysis, however, does not end here. It is well established that a violation of the defendant's right to confront witnesses is subject to harmless error analysis; State v. Merriam, 264 Conn. 617, 649, 835 A.2d 895 (2003); and only if the error was not harmless may the defendant prevail on his Golding claim. State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823. The state bears the burden of proving that the error is harmless beyond a reasonable doubt. State v. Merriam, supra, at 649, 835 A.2d 895. "Whether such *1014 error is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.... Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless." (Internal quotation marks omitted.) Id.
In this case, the improper admission of Williams' statements constituted harmless error. The jury would have given little, if any weight, to Williams' statements, largely because there is no evidence that Williams had any personal knowledge of the factual circumstances of the crime. Indeed, his statements appeared from the record to be little more than his own opinion or a repetition of what he previously had heard from another source. Moreover, even if the jury had assumed that Williams had such personal knowledge, the few statements that Williams asserted in the conversation were cumulative in that they were overshadowed by the wealth of detail offered by Estrella concerning the circumstances surrounding the victim's murder. For more than ten pages of the transcript, Estrella painted a highly detailed picture of the crime with little more from Williams than "mm-hmm." Estrella explained his reasons for murdering the victim and described the victim's cries, the process and technique behind the destruction of the body, Estrella's feelings as he and the defendant dismembered the body, where they obtained the supplies and what happened to them afterward, and a whole host of grisly details that provided overwhelming evidence of the role Estrella and the defendant had played in the victim's murder. In contrast, Williams made statements regarding the defendant along the lines of "Larry did it" and "Larry's the one who should be in jail," without offering anything of further substance. Indeed, Williams' statements were so incidental to the case overall that the defendant did not challenge their admission until after the trial had concluded and the case was appealed, and the state made no reference to the statements in its closing argument to the jury. We therefore conclude that Williams' statements were cumulative and therefore their admission was harmless. See State v. Merriam, supra, 264 Conn. at 649, 835 A.2d 895; cf. State v. Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993) (confrontation clause violation not harmless where improperly admitted testimony formed basis of jury's conviction and had it not been credited, jury would not have been able to convict), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S.Ct. 972, 133 L.Ed.2d 892 (1996).[26] Accordingly, the defendant's claim fails to satisfy the fourth prong of Golding.
C
The defendant's final claim is that the trial court improperly admitted the recording of Estrella's statements in violation of § 8-6(4) of the Connecticut Code of *1015 Evidence.[27] The state contends in response that the statements properly were admitted because they were reliable under the totality of the circumstances as a dual-inculpatory statement against penal interest. We conclude that the trial court did not abuse its discretion in finding that the statements were admissible as statements against penal interest.
Section 8-6(4) allows a hearsay statement made by an unavailable declarant to be admitted as a statement against penal interest if the statement is "`trustworthy' and, `at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.'" State v. Rivera, supra, 268 Conn. at 361, 844 A.2d 191; Conn.Code Evid. § 8-6(4). The code provides in relevant part that "[i]n determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant's penal interest." Conn.Code Evid. § 8-6(4). The trial court must consider all of the relevant factors and determine whether the statement presents sufficient indicia of reliability to justify its admission. State v. Pierre, 277 Conn. 42, 68, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006), citing State v. Schiappa, 248 Conn. 132, 154, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S.Ct. 152, 145 L.Ed.2d 129 (1999). "[W]hen viewing this issue through an evidentiary lens, we examine whether the trial court properly exercised its discretion." State v. Pierre, supra, at 68, 890 A.2d 474.
In the present case, it is undisputed that Estrella properly invoked his fifth amendment right not to testify and thereby was rendered unavailable. Our examination of the relevant factors leads us to conclude that the trial court's findings adequately support its conclusion that Estrella's statements were squarely against his penal interest and presented sufficient indicia of reliability to justify their admission. The statements were made less than three months after the commission of the crime. As a general matter, confessions made closer in time to the commission of a crime tend to be more reliable than those made after sufficient time for reflection or revision has passed. State v. Rivera, supra, 268 Conn. at 370, 844 A.2d 191; see also State v. Gold, 180 Conn. 619, 634, 431 A.2d 501 (confession made within three months of murders trustworthy), cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). Estrella spoke in a hushed tone when he recounted details of the crime, and, although the conversation occurred in a prison cell, the trial court found that it was made in a private manner to a cellmate in whom Estrella would be likely to confide and was intended to be kept confidential. See State v. Pierre, supra, 277 Conn. at 70, 890 A.2d 474 ("[a]lthough ... relationship of trust between [the declarant and his *1016 friend] was not necessarily as strong as if [they] were blood relatives, the fact remains that they shared a friendship and a relationship of trust"); see also State v. Rivera, supra, at 368-69, 844 A.2d 191 (statement made in private location with understanding that it should be kept confidential was trustworthy). Finally, the statements were squarely against Estrella's penal interests because they directly implicated him in an unsolved murder and included chilling detail. Compare State v. Pierre, supra, at 68-69, 890 A.2d 474 (dual inculpatory statement in which declarant provided grisly details of both his own and accomplice's actions in murder deemed reliable because statement squarely implicated his own wrongdoing in crime). It is well established that the admission of a crime supports an inference of reliability because people do not tend to subject themselves to criminal prosecution lightly. State v. Barton, 219 Conn. 529, 551, 594 A.2d 917 (1991).
The defendant asserts that the circumstances surrounding Williams' elicitation of Estrella's statements made the statements unreliable. He contends that Williams was not a person in whom Estrella would naturally confide, and that Williams was motivated by a self-interested desire for leniency with respect to his own charges to induce Estrella to confess. He points to case law in which this court has deemed an informant's testimony suspect due to such motives. See State v. Patterson, 276 Conn. 452, 469, 886 A.2d 777 (2005) ("We agree with the defendant that an informant who has been promised a benefit by the state in return for his or her testimony has a powerful incentive, fueled by self-interest, to implicate falsely the accused. Consequently, the testimony of such an informant, like that of an accomplice, is inevitably suspect."). We disagree.
Estrella knew Williams to be in a situation similar to his own incarcerated and facing criminal charges and made his statements to Williams in light of the camaraderie that arises under such shared circumstances. Moreover, this is not a situation in which the informant is reporting what a defendant or a codefendant stated or did, as in Patterson, the case cited by the defendant. See id., at 459-60, 886 A.2d 777. Rather, the recording presents Estrella's own statements and the circumstances in which he gave them. Thus, the case law cited by the defendant is inapposite. Additionally, it is clear from the trial court's findings and the recording itself that Williams did not induce Estrella to share the details of the crime. Rather, Estrella chose to provide a highly detailed rendition of the crime with little prompting from Williams. For these reasons, we conclude that the trial court did not abuse its discretion when it admitted Estrella's statements under the statement against penal interest exception to the hearsay rule.
The judgment is affirmed.
In this opinion the other justices concurred.
NOTES
[1] The defendant appealed directly to this court pursuant to General Statutes § 51-199(b), which provides in relevant part: "The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years...."
[2] General Statutes § 53a-54a (a) provides in relevant part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception...."
[3] General Statutes § 53a-8 (a) provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender."
[4] General Statutes § 53a-54c provides in relevant part: "A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants...."
[5] General Statutes § 53a-48 (a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy."
[6] General Statutes § 53a-134 (a) provides in relevant part: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon...."
[7] General Statutes § 53a-165 provides in relevant part: "[A] person `renders criminal assistance' when, with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, another person whom such person knows or believes has committed a felony or is being sought by law enforcement officials for the commission of a felony, or with intent to assist another person in profiting or benefiting from the commission of a felony, such person ... (5) suppresses, by an act of concealment, alteration or destruction, any physical evidence which might aid in the discovery or apprehension of such other person or in the lodging of a criminal charge against such other person...."
[8] General Statutes § 53a-92 (a) provides: "A person is guilty of kidnapping in the first degree when he abducts another person and: (1) His intent is to compel a third person (A) to pay or deliver money or property as ransom or (B) to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function."
[9] General Statutes § 54-56b provides: "A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary."
[10] Practice Book § 39-30 provides: "Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle prosequi is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary."
[11] The sixth amendment to the United States constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the [s]tate and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
[12] The state also maintains that the defendant waived this claim because he did not object to the trial court's acceptance of the state's representation of the witness' unavailability at the time that the nolle prosequi entered in 2001. We disagree. The record clearly indicates that, at the 2005 hearing on the motion to dismiss that is the subject of this appeal, the defendant raised this issue in its brief and at oral argument to the trial court. Indeed, without any objection by the state, the trial court addressed this issue and expressly noted that the defendant had not waived his right to take an appeal on its ruling. Accordingly, the defendant did not waive this claim, and we may consider it on the merits.
[13] At the hearing on the defendant's motion to dismiss, the state made the following representation to the court: "The state has a faxed letter from [Attorney] Wesley Spe[a]rs, who represents the codefendant, [Estrella], who is an essential witness in this case stating [Estrella] would assert his fifth amendment privilege against self-incrimination in the [defendant's case]. Under those circumstances, [Estrella] is unavailable. He is a key witness in [the] case. I'll enter a nolle under the missing witness statute."
[14] General Statutes § 54-142a (c) provides in relevant part: "Whenever any charge in a criminal case has been nolled in the Superior Court ... if at least thirteen months have elapsed since such nolle, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased...."
[15] Immediately after the court denied the motion to dismiss, it noted that the defendant was free to challenge its ruling in an interlocutory appeal. The defendant indicated that he wanted to proceed with his probable cause hearing, and the court noted for the record that the defendant had not waived any right to take an appeal on its ruling on the motion to dismiss.
[16] We note that the defendant does not dispute that Estrella's invocation of this privilege falls within Practice Book § 39-30 or General Statutes § 54-56b, only that the trial court improperly relied on the state's representation as evidence.
[17] In Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182, the United States Supreme Court adopted a four factor balancing test to determine whether a defendant's speedy trial right has been violated. The approach of the court was set forth as follows: "A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id.
[18] To the extent that the defendant relies on State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as the basis for our review, his reliance is misplaced. Under Golding, the defendant can prevail on an unpreserved claim only if the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. Here, the record is inadequate, and thus the claim fails the first prong of Golding.
[19] At both the probable cause hearing and at trial, the parties referred to the audiotape recording and the transcript of the audiotape interchangeably. Neither party presented any distinction between the two on appeal. For ease of use, we refer to the audiotape recording and transcript collectively as "the recording."
[20] In a separate trial, Estrella was convicted of murder, felony murder, conspiracy to commit murder, and conspiracy to commit robbery in the first degree, and his conviction was affirmed by this court. State v. Estrella, 277 Conn. 458, 893 A.2d 348 (2006).
[21] Although the defendant asserts violations of both the state and federal constitutions, he has not provided this court with an independent analysis of his state constitutional claim as required under State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992). We therefore address his claim only under the federal constitution. See State v. Nash, 278 Conn. 620, 623-24 n. 4, 899 A.2d 1 (2006).
The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him...."
[22] Section 8-6 of the Connecticut Code of Evidence provides in relevant part: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness ...
"(4) Statement against penal interest. A trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant's penal interest...."
[23] For example, the defendant cited the following instances of Williams' questioning, wherein Williams introduced the defendant's name into the conversation with Estrella: "Ah, Larry, what him make is the deal? Larry's the one who cut up the body, right?" and "So where did Larry bury that body?"
[24] For example, Williams stated: "Larry is the one supposed to be in jail"; and repeated that sentiment several times. Williams also stated "Mm-mm. Cause [Larry] always be lying," and "Larry is the one who hide the body."
[25] The state never proved that Williams was unavailable. Whether that omission reasonably can be attributed to the fact that the defendant had not raised any claim as to Williams in the trial court or raised any claim as to the state's inability to demonstrate that Williams actually was unavailable is not dispositive in light of our determination that the improper admission of his testimonial statements was harmless.
[26] The defendant points to State v. Hernandez, 254 Conn. 659, 672, 759 A.2d 79 (2000), wherein the court stated that "[t]he issue is whether the confidential informant's testimony would be highly probative and important, if not critical, to his defense." This case is inapposite, as it dealt with the issue of whether the disclosure of the identity of a confidential informant would impact the defendant's ability to prepare a defense.
[27] As we previously have noted, the defendant also contends that Estrella's statements did not meet the requirements of the confrontation clause for nontestimonial statements pursuant to Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. 2531. As we have noted in part II A of this opinion, the United States Supreme Court has held that the confrontation clause does not apply to nontestimonial statements. Davis v. Washington, supra, 547 U.S. at 821, 126 S.Ct. 2266. Because the defendant conceded that Estrella's statements were nontestimonial, we therefore limit our evaluation of the defendant's claim to the Connecticut Code of Evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563459/ | 155 F.2d 513 (1946)
COMMISSIONER OF INTERNAL REVENUE
v.
SWENT et ux.
No. 5449.
Circuit Court of Appeals, Fourth Circuit.
May 8, 1946.
*514 S. Walter Shine, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., on the brief), for petitioner.
Nathan Moran, of San Francisco, Cal. (George E. Haw, of Richmond, Va., on the brief), for respondents.
Before GRONER, Chief Justice of the U. S. Court of Appeals for the District of Columbia, and SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
This is an appeal from a decision of the Tax Court of the United States allowing the taxpayers James Swent and Ursula Swent (husband and wife) an exemption from United States income taxes on $25,000 earned during the year 1940 by James Swent in Mexico. There is no dispute as to the facts.
The applicable statute is Section 116(a) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 116, prior to the 1942 amendments, which reads:
"Sec. 116. Exclusions from gross income.
"In addition to the items specified in section 22(b), the following items shall not be included in gross income and shall be exempt from taxation under this chapter:
"(a) Earned income from sources without United States. In the case of an individual citizen of the United States, a bona fide non-resident of the United States for more than six months during the taxable year, amounts received from sources without the United States (except amounts paid by the United States or any agency thereof) if such amounts would constitute earned income as defined in section 25(a) if received from sources within the United States; but such individual shall not be allowed as a deduction from his gross income any deductions properly allocable to or chargeable against amounts excluded from gross income under this subsection. * * *"
The only question presented to us for decision is whether, under the facts of this case, each of the Swents was "a bona fide non-resident of the United States for more than six months during the taxable year" (1940).
The answer to this question depends upon the interpretation or construction of the words just quoted above. That, we think, is a question of law, so that we are not bound to follow the decision of the Tax Court under Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. Said Mr. Justice Jackson in that case (320 U.S. at page 501, 64 S.Ct. at page 246):
"It is difficult to lay down rules as to what should or should not be reviewed in tax cases except in terms so general that their effectiveness in a particular case will depend largely upon the attitude with which the case is approached. However, all that we have said of the finality of administrative *515 determination in other fields is applicable to determinations of the Tax Court. Its decision, of course, must have `warrant in the record' and a reasonable basis in the law. But `the judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.'"
See, also, John Kelley Co. v. Commissioner, 66 S.Ct. 299, decided by the United States Supreme Court January 7, 1946. Since we think the decision of the Tax Court lacks "warrant in the record" and is without "a reasonable basis in the law", we feel compelled to reverse that decision.
James Swent first went to Mexico in 1915 and taxpayers were married there that year. In 1918 he was employed by the San Luis Mining Company at Tayoltita, Mexico, of which he became manager in 1920, a position which he has held ever since. The taxpayers and their family lived in Tayoltita in a house belonging to the company. When Swent was absent from Mexico (an occurrence far from unusual), the mine was operated and managed by an assistant manager and a rather large staff of Mexicans and Americans. During these absences he was occasionally consulted by telegraph on questions of policy arising in connection with the management of the mine.
In registering, which is required by the Mexican Government as a prerequisite to entering a gainful occupation in that country, Swent declared that he was a resident of Tayoltita. In his passports, too, that village was given as his place of residence.
During the tax year 1940, the taxpayers spent 241 days (approximately two-thirds of the year) in the United States, on four different visits. And in each of the years 1939, 1942, 1943, taxpayers spent more than six months in this country. They rented an apartment in San Francisco during 1940, on a month to month basis and this apartment was used by their sons who attended school in California. And, while he was in the United States during 1940, Swent served as consultant in mining litigation in Idaho over a period of several months, for which he received in that year the sum of $10,000. For similar services in New Mexico he received during that year $4,000. Neither of these employments had any connection whatever with the San Luis Mining Company.
The word "resident" (and its antonym "nonresident") are very slippery words, which have many and varied meanings. Sometimes, in statutes, residence means domicile; sometimes, as in the instant case, it clearly does not. When these words, "domicile" and "residence", are technically used by persons skilled in legal semantics, their meanings are quite different. This distinction is clearly set out in Matter of Newcomb's Estate, 192 N.Y. 238, 250, 84 N.E. 950, 954:
"As `domicile' and `residence' are usually in the same place, they are frequently used, even in our statutes, as if they had the same meaning, but they are not identical terms, for a person may have two places of `residence,' as in the city and country, but only one `domicile.' `Residence' means living in a particular locality, but `domicile' means living in that locality with intent to make it a fixed and permanent home. `Residence' simply requires bodily presence as an inhabitant in a given place, while `domicile' requires bodily presence in that place and also an intention to make it one's domicile."
We think the error into which the Tax Court fell was partially caused by a confusion of these terms in lending to the word "residence" some attributes which really belong only to the word "domicile", and by laying too great stress, as to "residence", on the animus revertendi.
The Commissioner here contends (we think, properly) that the exemption statute requires actual physical absence from the United States for six months during the taxable year. If that criterion be applied here, clearly the taxpayers fall outside the exemption. The taxpayers, however, strenuously and picturesquely maintain:
"The Swents established their residence in Mexico in 1915, and their trips to the United States have never been for anything but temporary and transitory purposes. Their Mexican residence is not something they pack up in their suitcases and bring with them every time they cross the international *516 border, nor is it a question of counting the days spent north of the line to determine whether they have become residents here, like a couple of school children exposed to the measles, to find out whether the disease has taken."
The Bureau of Internal Revenue has consistently interpreted the statute before us as applying only to persons physically absent from the United States for six months. Thus S.M. 5446 V-1 Cum.Bull. 49 (1926) states "the exemption was intended to be accorded to all citizens of the United States who are actually out of the United States for more than six months during the year." To like effect is G. C. M. 9848, X-2 Cum. Bull. 178, 179 (1931): "the Bureau has held that it applies to any American citizen who is actually outside the United States for more than six months during the taxable year."
And this view, we think, finds further support in the legislative history of the statute. The House Bill used the much clearer words: "while actually employed outside the United States if so employed for more than six months during the taxable year." The Senate struck out these clear words and substituted the ambiguous phrase (now before us) "bona fide non-resident * * * for more than six months during the taxable year." However, it seems evident that the Senate intended no change from the meaning of the House Bill. When the Senate Amendment was under discussion, Senator Smoot remarked in no uncertain terms:
"We simply say that if they are out of the United States for six months, they are to be treated the same as if they lived in a foreign country all the time. There is no possible objection to it." (Italics supplied.)
Judicial authority on the problem before us is suprisingly scant. The Tax Court in its opinion in the present case cited its earlier decision in Estate of Fiske v. Commissioner, 44 B.T.A. 227; but this case was reversed by the Circuit Court of Appeals for the Seventh Circuit (Circuit Judge Major dissenting) in Commissioner v. Fiske's Estate, 7 Cir., 128 F.2d 487. Certiorari denied 317 U.S. 635, 63 S.Ct. 63, 87 L.Ed. 512, which appears to be the only decision of a federal appellate court squarely in point. The Tax Court also cited Carstairs v. United States, D.C.E.D.Pa. 1936, 17 A.F.T.R. 1044. In the Carstairs case, the taxpayer (who had long been a resident of England) spent the first seven weeks of the taxable year in the United States, then returned to England, intending to remain there for the rest of the taxable year, but died in July. Thus he was in the United States less than a seventh of the taxable year and he doubtless would have qualified for the exemption had he lived two months longer. There is force, with respect to the Carstairs case, in the comment of counsel for the Commissioner: "The facts of the case carried a strong sympathetic appeal which perhaps influenced the decision."
In the Fiske case, Fiske had charge of the Paris office of an American firm. He and his family had long resided in Paris. In December 1935, he and his wife came to the United States with a clear intention of returning to Paris after a stay of three months in this country. In January 1936, he became ill and was unable, on account of illness, to return to Paris until 1937. The Fiske situation was different from our case in two respects: (1) Fiske was absent from France (and present in the United States) the whole of the taxable year; Swent was absent from Mexico (and present in the United States) two-thirds of the taxable year. (2) Fiske intended to spend more than six months of the taxable year out of the United States but was prevented from doing so by ill health, a factor beyond his control; Swent, of his own volition, (though partly influenced by considerations affecting his health and that of his wife) spent two-thirds of the taxable year in the United States, actively pursuing his profession here for profit.
In his opinion in the Fiske case, 128 F. 2d at page 490, Circuit Judge Kerner said:
"Residence is the place of abode, whether permanent or temporary, Penfield v. Chesapeake, etc., Co., 134 U.S. 351, 356, 357, 10 S.Ct. 566, 33 L.Ed. 940, a physical fact, Matter of Newcomb's Estate, 192 N. Y. 238, 84 N.E. 950, 954, and means where a man abides or lives, Hunter v. Bremer, 256 Pa. 257, 100 A. 809, 811, Ann.Cas. *517 1918A, 152, and so applying the tests enumerated in the cases cited, we believe that Congress was not concerned with the question where a taxpayer had his permanent residence, but rather intended the act to apply to any American citizen actually outside of the United States for more than six months during the taxable year, engaged in the promotion of American foreign trade, and it is no answer to say that it was at all times Fiske's intention to return to Paris and that he was prevented from carrying out this intention because of illness. Cf. District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329. See also State of Texas v. State of Florida, 306 U.S. 398, 424, 425, 59 S.Ct. 563, [830], 83 L.Ed. 817, 121 A.L.R. 1179."
We point out that there is no question as to the power of the United States to tax the income earned by Swent in Mexico. Cook v. Tait, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895. The exemption statute is thus a pure matter of legislative grace and such statutes should be construed strictly against the taxpayer claiming the statutory exemption. United States v. Stewart, 311 U.S. 60, 71, 61 S.Ct. 102, 85 L.Ed. 40. And such exemption statutes must be construed in the light of the objects and purposes which they were designed to subserve. Helvering v. New York Trust Co., 292 U.S. 455, 464, 465, 54 S.Ct. 806, 78 L.Ed. 1361.
In view of what has been said, we feel that Swent, who in 1940 spent two-thirds of the year in the United States for pleasure and profit (though probably considerations of health had some influence), whose stay was neither casual nor incidental, was not "a bona fide non-resident of the United States for more than six months during the taxable year" as that phrase is used in the exemption statute. Nor does it seem to us that he is the victim of Congressional injustice. His contribution to this country, in the form of income taxes on his Mexican earnings in 1940, seem, under all the circumstances of this case, only a fair return for all the privileges he enjoyed under the beneficent aegis of our Government. Such a contribution, in spite of Swent's obvious intention to return to Mexico, we think, conforms to the spirit of the exemption statute.
The decision of the Tax Court of the United States is, therefore, reversed.
Reversed.
Judge GRONER is of opinion that the Tax Court was correct in deciding that petitioners have been since 1915, and were in 1940, bona fide non-residents of the United States within the intent of Sec. 116 (a) of the Revenue Act of 1938, 26 U.S.C. A. Int.Rev.Code, § 116.
He also is of opinion that this case falls within the rule of the Dobson case, as the rule in that case was enlarged in the recent decision of the Supreme Court in John Kelley Co. v. Commissioner (Talbot Mills v. Commissioner) 66 S.Ct. 299. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563489/ | 16 So.3d 172 (2009)
Joseph Alan MILKEY, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-5423.
District Court of Appeal of Florida, Second District.
July 24, 2009.
*173 James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
VILLANTI, Judge.
In this appeal, we are asked to decide whether the trial court committed reversible error by failing to conduct a Nelson[1] inquiry before proceeding with Milkey's revocation hearing. We answer this question in the affirmative and reverse.
Milkey was charged with violation of probation. At the beginning of the revocation of probation hearing, the following exchange took place:
[MILKEY]: Your Honor, I'm not really happy with my counsel. Is there anyway
THE COURT: You can represent yourself if you wish.
[COUNSEL]: He does have Ms. Black on the new charges, and I have spoken with Ms. Black. She is not taking over this case, but
THE COURT: She's not here. You can have Ms. Chewning or you can represent yourself.
What are we doing? Are we going to have a hearing?
[COUNSEL]: If I can just have one moment to explain something. We're ready for a hearing, Your Honor.
THE COURT: Please call your first witness.
The revocation hearing proceeded with the same court-appointed counsel representing Milkey. The court found Milkey in violation of probation and sentenced him to thirty-six months in prison. The court never made an inquiry of Milkey or of his court-appointed counsel as to the reasons why Milkey was "not really happy" with counsel to determine whether Milkey's displeasure had anything to do with counsel's incompetence. Based on the facts of this case, this was error.
Pursuant to Nelson, when a defendant seeks to discharge his court-appointed counsel prior to trial, the trial court must determine whether the defendant is unequivocally requesting counsel's discharge, and if so, the reason for the request. Montgomery v. State, 1 So.3d 1228, 1230 (Fla. 2d DCA 2009); Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004).[2] The trial court's inquiry must be sufficient to "determine whether or not appointed counsel is rendering effective assistance." Howell v. State, 707 So.2d 674, 680 (Fla.1998). The procedural steps to follow when a defendant asks to discharge his court-appointed counsel are aptly outlined in Maxwell:
The first step in the procedure is the preliminary Nelson inquiry in which the court ascertains whether the defendant *174 unequivocally requests court-appointed counsel's discharge and the court asks the reason for the request. The answer to the preliminary inquiry determines the next steps. If a reason for the request is court-appointed counsel's incompetence, then the court must further inquire of the defendant and his counsel to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel. If the reasons for the request do not indicate ineffective assistance of counsel, then no further inquiry is required. If no further inquiry is required, or if after further inquiry there is no reasonable cause to believe that court-appointed counsel is not rendering effective assistance, and the defendant persists in a desire to discharge counsel, then the court must inform the defendant that he is not entitled to a court-appointed substitute counsel and that he would be exercising his right to represent himself.
892 So.2d at 1102 (citations omitted, emphasis added). If the court summarily denies the request to discharge counsel, it must make a determination on the record as to why it is denying the request. Montgomery, 1 So.3d at 1230; Jones v. State, 658 So.2d 122, 125 (Fla. 2d DCA 1995).
The trial court's inquiry "can only be as specific as the defendant's complaint." Morrison v. State, 818 So.2d 432, 440 (Fla.2002). For that reason, a Nelson hearing is not necessary if the defendant expresses generalized dissatisfaction with his attorney or asserts "general complaints about defense counsel's trial strategy" without making any formal allegations of incompetence. Id.; see also Tucker v. State, 754 So.2d 89, 92 (Fla. 2d DCA 2000) (stating that trial court does not abuse its discretion by not conducting a Nelson inquiry when the defendant's "dissatisfaction with counsel is articulated in terms of general complaints which do not suggest ineffective assistance of counsel"). However, we have stated that "[t]he cautious approach suggests that, when in doubt, a trial court should proceed with further inquiry." Tucker, 754 So.2d at 92-93.
When a trial court conducts a Nelson inquiry, the appellate court applies an abuse of discretion standard to determine whether the Nelson inquiry was adequate. Augsberger v. State, 655 So.2d 1202, 1204 (Fla. 2d DCA 1995); Wilson v. State, 889 So.2d 114, 118-19 (Fla. 4th DCA 2004). However, we have held that a trial court's failure to conduct any preliminary Nelson inquiry in response to a defendant's wishes to discharge court-appointed counsel is a structural defect constituting reversible error. See Augsberger, 655 So.2d at 1204 ("We have held that a trial court's failure to conduct a proper Nelson inquiry constitutes reversible error."); Maxwell, 892 So.2d at 1103 ("The failure to conduct an appropriate Nelson inquiry is a structural defect in the trial requiring reversal as per se error.").
In this appeal, Milkey contends that he wanted to discharge his counsel, but the trial court improperly truncated the procedure required by Nelson when it cut him off and failed to ascertain the reason why he wanted to discharge counsel. We agree with Milkey. We specifically address the State's arguments because they are interrelated with the reasons why Milkey's position prevails.
The State seeks affirmance based on two theories. First, the State argues that Milkey's complaint was nothing more than a generalized expression of unhappiness with counsel, thereby negating the necessity of a Nelson hearing. Second, the State argues that a Nelson hearing was not necessary because Milkey waived the issue *175 when, after talking with his court-appointed counsel, he silently acquiesced in his counsel's statement that they were ready to proceed with the violation of probation hearing. The State's arguments fail for several reasons.
First, the trial court never determined whether Milkey's "unhappiness" was due to his belief that counsel was ineffective or whether it was simply a generalized feeling of unhappiness with counsel. The trial court cut off both Milkey and his counsel midsentence when it is apparent from the transcript that, if given the opportunity, they would have explained the reasons for Milkey's "unhappiness." Under Nelson, the trial court should make a sufficient inquiry of both the defendant and his counsel to determine whether there is reasonable cause to believe that counsel is not rendering effective assistance. See Jones, 658 So.2d at 125. Nelson mandates that the court make findings on this issue on the record. Burgos v. State, 667 So.2d 1030, 1032 (Fla. 2d DCA 1996). Here, it certainly behooved the court to make further inquiry regarding Milkey's complaint about counsel.
This case is similar to Maxwell. In that case, when defense counsel stated that the defendant wanted to discharge counsel, the trial court immediately gave the defendant the options of either representing himself or keeping his court-appointed counsel. Maxwell, 892 So.2d at 1101-02. This court criticized the trial court for failing to make a preliminary Nelson inquiry and "remov[ing] the possibility of discharging counsel for incompetence before [the defendant] had a chance to speak on the matter." Id. at 1102-03. We concluded that, under the circumstances, the trial court's failure to conduct a Nelson inquiry was "a structural defect" requiring reversal as per se error. Id. at 1103. We specifically distinguished Augsberger, another case where we had held that a Nelson inquiry was unnecessary:
The State urges affirmance on authority of Augsberger v. State, 655 So.2d 1202, 1204-05 (Fla. 2d DCA 1995), which held that a Nelson inquiry is not required when the defendant does not indicate a desire to discharge court-appointed counsel and to receive a replacement. However, Augsberger addressed the necessity of conducting a full Nelson inquiry after the defendant's response to the preliminary inquiry, not the necessity of the preliminary inquiry, which provides the opportunity for such desires to come to light.
Id. (emphasis added).
Similarly, in Jones, the defendant complained about "continued dissatisfaction with his court-appointed counsel." 658 So.2d at 124. "Without inquiring of [the defendant] and his attorney about the substance of the complaint," the trial court immediately asked the defendant if he wanted to represent himself. Id. We reversed, concluding that the trial court had abused its discretion because it "never inquired of the appellant and his court-appointed counsel as to whether there was reasonable cause to believe that counsel was being ineffective." Id. at 125. We also noted that the court had not made any findings on the record as to why it was summarily denying the request to discharge counsel. Id. We concluded:
We recognize the burden placed on a trial court by Nelson ... when confronted by a defendant, who is often obstreperous, claiming ineffective assistance of court-appointed counsel. We realize that the procedures mandated by these cases will often involve a tedious and time-consuming process designed to test the frustration and patience level of the most able trial judge, especially when the request for discharge comes on the *176 day of trial and a jury venire of inconvenienced citizens is impatiently waiting in the courthouse for the jury selection process to begin. We must emphasize, however, the importance of strict adherence to these requirements and the real potential for reversal should they not be followed, thereby resulting in a needless expenditure of judicial resources.
Id. at 126.
As in Maxwell and Jones, in this case we must reverse. As in Maxwell, the trial court ignored the need for a preliminary Nelson inquiry, which would have given Milkey the opportunity to express his desire to discharge counsel and explain the reasons for his request. Upon hearing that Milkey was "not really happy" with counsel, the court should have allowed him to finish his sentence to determine the basis of his dissatisfaction and whether some type of Nelson inquiry was necessary. The trial court should have given Milkey the opportunity to have his desire to discharge counsel "come to light." Maxwell, 892 So.2d at 1103; see also Rios v. State, 696 So.2d 469, 471 (Fla. 2d DCA 1997) (stating that a proper Nelson inquiry begins with a determination of the reason why the defendant wishes to change attorneys to determine whether the request is based on ineffective assistance). Based upon the options given to Milkey by the trial courtdischarging his counsel and representing himself or proceeding with current counselit is apparent that the trial court understood Milkey's statement as an effort to discharge counsel. Even though Milkey might not have ultimately been entitled to a full Nelson/Faretta hearing, the trial court should have further inquired to determine whether he, in fact, wished to discharge counsel and the basis for his request. As in Jones, the trial court here "leapfrogged" over the Nelson inquiry step, either not recognizing that it should have made further inquiry or assuming that Milkey's counsel was effective despite Milkey's unhappiness. On the record before us, the trial court was not permitted to assume that Milkey's dissatisfaction was not based on counsel's incompetency or that a Nelson hearing, if conducted, would dispel any notion of counsel's incompetency. By not clarifying the reasons why Milkey was "not really happy" with counsel and by cutting him off midsentence, the court prematurely limited Milkey's options[3] to self-representation or keeping his existing counsel.
The State's reliance on Morrison, 818 So.2d at 432, is misplaced. In that case, while the defendant had not made a formal allegation of incompetency, he had sent letters to the court which connected his complaints to the amount of communication between him and counsel, counsel's refusal to provide copies of legal documents, and counsel's lack of effort to contact witnesses. Id. at 441. The court found that such "complaints can best be described as general complaints about his attorney's trial preparation, witness development, and trial strategy" which do not require a Nelson inquiry. Id. The supreme court in Morrison also noted that while the trial court had not conducted a full Nelson inquiry, it had inquired of defense counsel concerning the defendant's complaints about counsel and had allowed the defendant an opportunity to express his concerns. Id. The court also highlighted the fact that the defendant had not persisted in his complaints against counsel "when given the opportunity to do so" by *177 the court. Id. (emphasis added). The supreme court concluded:
As the record indicates, the court made sufficient inquiry to determine whether there was reasonable cause to believe that counsel was not rendering effective assistance. Because Morrison was merely noting his disagreement with his attorney's frequency of communication, trial strategy, and trial preparationand was not asserting a sufficient basis to support a contention that his attorneys were incompetentwe find Morrison's claim is without merit.
Id. at 442 (emphasis added). The facts in this case are distinguishable from Morrison because the trial court here did not make any inquiry to determine whether Milkey's counsel was not rendering effective assistance and Milkey was not given any opportunity to articulate the basis for his dissatisfaction with counsel.
Other cases which have found a Nelson inquiry unnecessary also reflect some discussion between the trial court and the defendant supporting a conclusion that the defendant's complaints had nothing to do with allegations of counsel's incompetence. See, e.g., Gudinas v. State, 693 So.2d 953, 961 (Fla.1997) (holding that failure to conduct Nelson inquiry was not error where defendant never specifically claimed that counsel was acting incompetently despite the fact that "the trial judge went to great lengths" to determine the basis of his complaint); Lowe v. State, 650 So.2d 969, 975 (Fla.1994) (rejecting Nelson inquiry where defendant was unable to articulate specific reasons for his assertion that counsel "was not doing his best to represent him," despite the court's "persistent questioning"); Dunn v. State, 730 So.2d 309, 310-11 (Fla. 4th DCA 1999) (reflecting an exchange between the defendant and the trial court regarding the reasons why defendant was dissatisfied with counsel). No such discussion occurred in this case.
We note that it is the rare occasion when a criminal defendant's initial statement clearly and unequivocally requests the discharge of his court-appointed counsel. Therefore, when an exchange like the one in this case occurs, the trial court must make some preliminary inquiry to determine the basis of the defendant's unhappiness with counsel. See Maxwell, 892 So.2d at 1102 ("The preliminary inquiry is the crucial step in the procedure that determines what other procedures, if any, a court must follow in order to adequately protect a defendant's constitutional rights."). In this case, even a minimal exchange between Milkey and the trial court might have supported denial of a Nelson inquiry under the line of cases holding that generalized complaints are insufficient to trigger a full Nelson inquiry. If the court had allowed Milkey and/or his attorney to complete their sentences, it might have concluded that his complaints were about issues that do not fall under Nelson and do not require withdrawal of counsel, such as trial preparation or strategy or a general loss of confidence or trust in his counsel. However, the record in this case does not clearly demonstrate that Milkey was complaining about generalized unhappiness with counsel. Therefore, the trial court erred in not conducting a preliminary Nelson inquiry.
Finally, we reject the State's argument that Milkey waived the need for a Nelson inquiry when he and his attorney had a brief off-the-record discussion after which counsel announced that they were "ready for a hearing." The State asks us to assume that Milkey proceeded to the revocation hearing because his conversation with counsel put him at ease about counsel's performance and negated the need for a Nelson inquiry. We reject the *178 State's argument because a waiver typically requires the defendant to understand the rights which he is giving up. See, e.g., Fla. R.Crim. P. 3.111(d)(2) ("A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and the accused's capacity to make a knowing and intelligent waiver"). Here, there is no evidence that Milkey knowingly and intelligently understood his options. This is not a case where the defendant ceased complaining about his counsel and proceeded to trial after having an opportunity to express to the court the reasons for his dissatisfaction with counsel. See, e.g., Morrison, 818 So.2d at 441; Lowe, 650 So.2d at 975; Wilson, 889 So.2d at 116-17. Rather, the court cut off Milkey without discussion. Moreover, we do not know what Milkey and his counsel discussed to prompt Milkey to proceed with the revocation hearing. Specifically, we do not know whether Milkey understood that, regardless of the court's previous comments, he could still unequivocally request to discharge his court-appointed counsel, triggering a full Nelson inquiry. Given the record before us, we cannot conclude that Milkey intelligently and voluntarily made a choice to keep his current counsel and proceed with the revocation hearing.
In conclusion, the trial court erred by not conducting at least a limited, preliminary Nelson inquiry of both Milkey and his counsel to determine whether Milkey was unequivocally seeking to discharge counsel and, if so, the reasons for that request.
Reversed and remanded with instructions that Milkey's conviction be vacated and that a new revocation of probation hearing be conducted in a manner consistent with this opinion.
FULMER and KELLY, JJ., Concur.
NOTES
[1] Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
[2] The supreme court adopted the procedure set forth in Nelson. Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988).
[3] Of course, if a proper Nelson inquiry had been conducted and Milkey's complaint had been found to involve incompetency of counsel, his options would have included a court-appointed substitute counsel. See Maxwell, 892 So.2d at 1102. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/231423/ | 203 F.2d 295
MILKIE et al.v.WEST.
No. 6542.
United States Court of AppealsFourth Circuit.
Argued March 18, 1953.Decided April 7, 1953.
Gerald E. Topper (Charles A. Velte, Baltimore, Md., Jno. C. Goddin and Shewmake, Gary, Goddin & Blackwell, Richmond, Va., on brief), for appellants.
Jack L. Medwedeff, Baltimore, Md. (Cornelius P. Mundy, Baltimore, Md., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
1
This suit was instituted on August 4, 1950 on behalf of Michael Milkie and Gabriel Milkie, citizens of Maryland, to secure the rescission of a contract of June 30, 1949 wherein the Milkies, sole stockholders of Royal Transportation Company, a Maryland corporation, agreed to sell and convey all of the stock of the company to H. B. West, a citizen of New Jersey. The defendant West filed an answer and a counterclaim in which he asserted that he had complied with the terms of the contract of sale and prayed that the contract be declared in full force and effect and that the Milkies be ordered to transfer the stock to him upon the payment by him of the sum of $10,242.57, at the rate of $1,000 per month, the stock to be held in escrow until the payments were completed. He asserted that this sum had been agreed upon by the parties in March, 1950 as the balance due under the contract.
2
Although the complaint asked for the rescission of the contract and the removal of West from the control of the corporation which had been transferred to him, the complaint also asked for the appointment of an auditor to determine the amount of money due by West under the terms of the contract. Furthermore the Milkies stated in their answers to the counterclaim that the stock had been endorsed and was in the hands of their attorney, and that they were willing to deliver the stock to West upon compliance by him with the terms of the contract; but the execution of the supplemental agreement of March, 1950 was denied and it was asserted that the Milkies were owed a sum in excess of $20,000 under the original contract.
3
In this state of the pleadings, the case came to trial upon the question of the amount owing by the defendant under the terms of the contract. This provided for the sale of the outstanding stock of the corporation, consisting of 40 shares owed by the Milkies, for $140,000 plus an amount equal to the accounts receivable as of the close of business on July 4, 1949, and less the debts of the corporation which the purchaser agreed to pay. The purchase price was to be paid as follows: $5,000 upon the signing of the agreement, to be used to reduce the corporation's debts, $25,000 within thirty days, to be used for this purpose and also for operating capital, 'and thereafter to pay to Royal and/or parties of the first part not less than $1,000.00 per month without interest until the purchase price of $140,000.00 plus the value of the receivables owing to Royal is paid in full; provided, however, that party of the second part may refuse to pay any amount to parties of the first part until an accurate accounting of the liabilities of Royal has been determined, it being expressly understood that the total purchase price to be paid by part of the second part is $140,000.00 plus the amount of receivables and amounts payable to Royal, and that parties of the first part are entitled to any monies, should the indebtedness of Royal equal or exceed the $140,000.00 stated, plus the receivables and amounts due Royal.'1
4
For the determination of the amount of the purchase price to be ultimately paid, Article 5 of the agreement provided that a certified public accountant would be employed 'to make an audit of the books of Royal to determine both the amounts owing to Royal and the amounts owed by it as of the conclusion of business July 4, 1949.' During the month of July, 1949, in conformity with this provision, the parties jointly employed Alexander P. Ginsberg, a certified public accountant, to audit the records of the corporation and to ascertain the amounts of the accounts receivable and accounts payable. During the hearing in the District Court the plaintiffs contended that Ginsberg had been employed by West and not by them, but the District Judge found that Ginsberg was employed by both parties, as contemplated by the contract, and the weight of the evidence strongly supports his finding.
5
It was expressly stated in paragraph 1 of the contract that the purpose of the sale and purchase was the acquisition by West of all interest in and to the assets and properties of Royal, consisting of certain motor carriers operating rights under a certificate of public convenience and necessity issued by the Interstate Commerce Commission; all motor vehicle equipment; all office and shop equipment, materials and supplies, wherever located; all lease-holds of terminal properties, wherever situated; and all amounts due to Royal from whatever source and owing as of July 4, 1949. In order to give effect to this purpose West was elected president and director of the corporation on or about July 16, 1949 and has since been in complete charge and control of the assets. The certificates of stock, however, were not delivered to him but were endorsed by the sellers and placed in the hands of their attorney for delivery upon the completion of the payments due under the contract.
6
At the time that the contract was executed, the corporation was in dire financial straits and certain creditors were about to institute foreclosure proceedings against its operating equipment. It was on this account that it was provided in paragraph 3 of the agreement that the purchaser, upon the signing of the paper, should pay $5,000 to be used in reducing the corporation's debts. The sum of $5,000 was in fact immediately paid and used in accordance with the contract. Shortly thereafter the purchaser also paid the sum of $25,000 in accordance with the contract, and the additional sum of $1,000, so that the pressing obligations of the company might be met. The additional payments of $1,000 per month were not made since the purchaser was not required by the contract to make them until an accurate account of the liabilities had been ascertained; but the purchaser has remained in possession and has operated the business successfully without further interference on the part of the creditors.
7
The Ginsberg audit of the books and records of the corporation was completed on November 5, 1949. It showed as of July 4, 1949 total assets of $63,222.12 and total liabilities of $159,642.49, or a deficit of $96,420.37. Taking into account on the one hand the purchase price of $140,000 and accounts receivable and special deposits of $35,281.58, or a total of $175,281.58, and on the other hand accounts payable in the aggregate sum of $173,385.74, the computation showed an amount due the sellers of $1,895.84.
8
The Milkies were not satisfied with this computation and negotiations followed during which, according to the testimony of the defendant, the parties agreed upon a settlement in the sum of $10,242.57. This settlement, however, was not given effect and the present suit was brought on August 4, 1950.
9
Upon this state of facts the case came on for hearing at which the attention of the court was chiefly confined to questions of the validity of the agreement, the employment of Ginsberg as the auditor, the accuracy of his report and the alleged execution of the supplemental agreement of settlement above mentioned. At the conclusion of the hearing the judge announced the finding that the evidence was not sufficiently convincing to satisfy him that there had been an accord and satisfaction, and he further held that although the parties had agreed to accept the services of Ginsberg to make the audit, they had not agreed in advance to accept his computation, and that therefore a special master should be appointed to determine the amount remaining due under the contract. Accordingly, the court filed an order in which he found that the contract was valid and subsisting; that the parties had agreed upon Ginsberg as the accountant to make the audit, that his audit made should be treated as prima facie evidence of the rights and liabilities of the parties, and that Paul R. Kach be appointed special master to hear and determine the rights and liabilities of the parties, and that Paul R. Kach be appointed special master to hear and determine the rights and liabilities of the parties and report his findings to the court, taking into consideration the Ginsberg audit and such additional evidence as the parties might offer.
10
The special master took a large amount of additional testimony and reached the final conclusion that the balance due the plaintiffs as sellers of the stock was $5,189.13. Exceptions to his report were considered by the court and it was confirmed in all respects; and a decree was signed which the plaintiffs were ordered to deliver their stock to West upon the payment by him of the sum of $5,189.13 and upon the payment by the corporation to the plaintiffs of certain additional sums found by the Ginsberg audit to be due them as creditors of the corporation, less amounts theretofore paid on account.
11
After the opinion of the District Judge was filed, the plaintiffs employed other counsel to prosecute this appeal. It does not challenge the accuracy of the computation made by the District Court or endeavor to show what part of the purchase price remains unpaid. It is confined to the propositions: (1) that the agreement of June 30, 1949 is so ambiguous and incomplete in its terms as to be incapable of specific performance under the Maryland decisions; and (2) that the District Court erred in confining its consideration to one of the provisions of the agreement and in not considering the agreement in its entirety.
12
In respect to the first proposition it is said that certain parts of the contract seem to contemplate the transfer of the corporate assets to West while others speak of the sale and transfer to him of the entire capital stock; and that the agreement does not clearly state that the initial payment of $5,000 was part of the consideration of the transfer, or that the liabilities were to be subtracted from the purchase price, or designate the persons to whom the debts should be paid.
13
Especial emphasis is placed by the appellants upon the concluding paragraph of the agreement which includes the statement that the Milkies 'may continue with Royal as stockholders and full-time employees, provided, however, that their combined stock interest may not exceed 25 per cent of the total capital stock of Royal issued and outstanding at any time, and that for the purpose of this agreement, the cost of the said capital stock to be issued to parties of the first part or either of them shall be $3,500.00 per share on the basis of forty shares,' * * * and 'that upon issuance of any share or shares of stock to parties of the first part or either of them, a credit for the value thereof shall be given to party of the second part in reduction of his indebtedness to parties of the first part in the amount of $140,000.00.'
14
It is said that the provision for full employment is unenforceable under the rule that courts will not enforce agreements requiring or permitting personal service, and will not interpose to enforce one part of a contract unless it is clearly separable from the remainder;2 and that in this instance the rule is particularly appropriate because Michael Milkie, who had been carried on the pay roll for nearly two years after the execution of the contract, was discharged from his employment on September 28, 1951.
15
We find no merit in these contentions. The articles of agreement were not drawn with technical nicety and they contain expressions which fail to observe with precision the distinction between the corporate entity and the purchaser of all of its stock who was to become in a very real sense the owner of the business. But, as we have pointed out, the parties clearly understood and have acted on the assumption that the sale was to be accomplished by the transfer of the stock and that the corporation was to continue as the owner of the corporate property and the operator of the business. West was elected president and director of the corporation, and he was given control of the business; but the properties of the corporation were not transferred to him, and the stock was retained by the Milkies during the inquiry into the amount of the assets and liabilities of the business. In other words, the terms of the contract were performed so far as this could be done pending this investigation to which the parties directed their attention. There is mention in the pleadings of rescission and of specific performance, but the main purpose of the suit was the computation and collection of the purchase price, and there is no occasion to apply the Maryland rule that a contract will not be specifically enforced unless it is definite and certain in its terms and free from ambiguity. See, Applestein v. Royal Realty Corp., 180 Md. 274, 23 1.2d 684.
16
The terms of the final paragraph of the agreement and the discharge of Michael Milkie likewise present no obstacle to the present enforcement of the contract. It is clear that the right of the Milkies to remain as employees was part and parcel of their right to remain as stockholders of the corporation, and that this right was optional with the Milkies and subject to the proviso that they pay for the stock at the rate of $3,500 per share. When it was disclosed by the audit that the stock had little or no value, the option to buy it at this price was worth less than nothing and of course it was never exercised. Nor was any attempt made by the Milkies during the trial of the case to exercise this right.
17
What has been said also answers the contention that the District Judge confined the trial exclusively to one of the provisions of the agreement. The argument seems to be based upon a statement of the District Judge during the opening statement of counsel that he was disposed to confine the testimony to paragraph 5 of the agreement wherein the parties agreed to the employment of an auditor to determine the amount of the accounts receivable and the amount of the accounts payable. The reason given was that the contract might be ineffective unless the parties had complied with the provision whereby the amount of the purchase price could be ascertained. The judge, however, expressly said that attention should be confined to this point 'initially'; and the record shows that the judge found that the parties had agreed upon the appointment of an auditor and that during the subsequent court proceedings the parties had ample opportunity to present evidence and to secure the consideration by the court as to all parts of the agreement.
The judgment of the District Court will be
18
Affirmed.
1
It is evident that the amount paid by the purchaser in liquidation of the corporation's debts was to be considered as a credit on the purchase price; and it was so treated in paragraph VII of the bill of complaint where it was expressly stated. 'That pursuant to the terms of the contract, the consideration for said stock was to be the difference between $140,000.00 plus all of the receivable of the Royal Transportation Company, less the liabilities, as of July 2, 9149.' The suggestion somewhat faintly made in the appellants' brief in this court that the agreement does not recite that the liabilities were to be subtracted from the amount of the purchase price is not worthy of further comment
2
See Pantages v. Grauman, 9 Cir., 191 F.317; Restatement of contracts, Vol. 1 Sec. 371 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/351988/ | 568 F.2d 617
UNITED STATES of America, Appellant,v.Nicholas ALBERTI, Appellee.
No. 890, Docket 76-1543.
United States Court of Appeals,Second Circuit.
Argued March 17, 1977.Decided Aug. 24, 1977.Rehearing Denied Oct. 11, 1977.
Katherine Winfree, Atty., Dept. of Justice, Washington, D. C. (Richard J. Arcara, U. S. Atty., Buffalo, N. Y., and Jerome M. Feit, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.
Brian F. Toohey, Buffalo, N. Y., for appellee.
Before LUMBARD and TIMBERS, Circuit Judges, and DAVIS,* Court of Claims Judge.
TIMBERS, Circuit Judge:
1
The United States appeals, pursuant to 18 U.S.C. § 3731 (1970), from an order entered in the Western District of New York, John T. Curtin, Chief Judge, after the jury had convicted defendant of perjury, granting him a new trial and, for purposes of the new trial, striking portions of the single count indictment. A threshold question is whether this appeal is authorized by § 3731, as a matter of both statutory interpretation and constitutional law. We hold that we lack appellate jurisdiction to review that part of the order which granted a new trial and therefore we dismiss the appeal to that extent. With respect to that part of the order which struck portions of the indictment, we hold that we have jurisdiction under § 3731 to review it and, as to that part of the order, we reverse and direct that the new trial proceed on the unexpurgated indictment.
I. PRIOR PROCEEDINGS
2
In a single count indictment returned February 12, 1975 Nicholas Alberti was charged with knowingly making false material declarations under oath before a grand jury in violation of 18 U.S.C. § 1623 (1970). At the five day trial in June 1976 the government's evidence showed that Alberti appeared as a witness before a grand jury in the Western District of New York on October 16, 1974. He had been granted immunity. The grand jury was investigating alleged illegal gambling, loansharking, and racketeering in violation of 18 U.S.C. §§ 1955 et seq., and 1961 et seq. (1970). It was material to the grand jury investigation to determine whether a card game known as "ziganette" (or "siginete") took place regularly at Nairy's Social Club in Buffalo; whether large sums of money were wagered during that game; and whether certain persons received a percentage of the wagers. Alberti's allegedly false testimony before the grand jury in response to various questions concerning the above subjects formed the basis of the government's charge of perjury. Essentially, Alberti denied having knowledge that the game of ziganette was played at Nairy's, knowledge that one Michael Bona was connected with the game, and knowledge of the identities of other dealers and the percentage of wagers taken as the house share.1
3
On Friday, June 11, 1976, at the close of all of the evidence, defense counsel moved for a judgment of acquittal. He claimed that the evidence adduced at trial was insufficient, and that the questioning before the grand jury was too ambiguous and imprecise, to support a perjury conviction. Decision on the motion was reserved. Both sides completed their summations Friday afternoon and the jurors were sent home for the weekend, to return the following Monday for the charge and deliberations.
4
The Friday evening edition of the Buffalo Evening News carried an article that contained unfavorable references to Alberti and connected him with the underworld and the activities at Nairy's Social Club. Defense counsel brought the article to the court's attention upon resumption of the trial on Monday, June 14. He requested first that the jurors be questioned as to whether they had seen the article, then that a mistrial be declared, and finally, after the first two requests had been denied, that the jurors be given a specific instruction about the article. The court reconsidered and agreed to conduct a voir dire. Upon the jury's return to the courtroom, however, the court proceeded with the charge and inadvertently failed to question the jurors or to give them instructions regarding the publicity. Later that day the jury returned a verdict of guilty.
5
On June 18 defense counsel filed his post-verdict motions. He renewed his motion for a judgment of acquittal on the same grounds of insufficiency and imprecision on which his earlier motion for acquittal had been based. He also moved in the alternative for a new trial on the ground that the newspaper publicity may have had a prejudicial effect on the jury.
6
After hearing arguments on July 16 and August 5 on the motions, the court filed a reasoned opinion on September 30. The court denied the motion for an acquittal on the ground that, although it found merit in certain of defendant's claims of insufficiency and imprecision, the questioning before the grand jury as reflected in certain other portions of the indictment was sufficiently precise, and the falsity of Alberti's answers was supported by sufficient evidence, to sustain the conviction. The court did grant defendant's alternative motion for a new trial on the ground of possible prejudicial publicity. For purposes of the new trial the court sua sponte struck from the indictment those specifications of perjury that it had ruled could not independently support a conviction. From the order granting a new trial and striking portions of the indictment, the United States appeals.
II. APPELLATE JURISDICTION
7
The right of the United States to appeal from an adverse ruling in a criminal case is governed by the Criminal Appeals Act, 18 U.S.C. § 3731 (1970). See generally United States v. Martin Linen Supply Co., 430 U.S. 564 (1977); United States v. Sanges, 144 U.S. 310 (1892). The Act was amended in 1970 as part of the Omnibus Crime Control Act, Pub.L.No. 91-644, tit. III, § 14(a), 84 Stat. 1890. Present § 3731 provides:
8
"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."
9
The Supreme Court has stated that "the legislative history makes it clear that Congress intended to remove all statutory barriers to government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337 (1975). We therefore must determine whether the language of the statute encompasses this appeal and, if so, whether such appeal nevertheless is barred because the double jeopardy clause would prohibit further prosecution.
10
Despite the breadth of the coverage of § 3731, we hold that it does not authorize a government appeal from the order granting a new trial. Such an order does not "(dismiss) an indictment . . . as to any one or more counts . . . ." Having failed to come within this express threshold requirement of the statute, the government cannot appeal the new trial order. We therefore dismiss that part of the appeal which seeks review of the grant of a new trial.
11
For purposes of the new trial however the district court struck portions of the single count indictment. At first blush an appeal from that part of the order might appear likewise not to fall precisely within the statutory language which provides for "dismissing an indictment or information as to any one or more counts." Mindful of the Act's explicit directive that its provisions "shall be liberally construed to effectuate its purposes", we hold that § 3731 authorizes the government to appeal so much of the order as " struck" portions of the indictment.
12
The statutory language does not preclude such an interpretation. It refers to dismissal of an indictment "as to one or more counts", not to dismissal "of one or more counts of an indictment". We do not rest however on such a semantic distinction. We prefer to base our ruling on the practical result of the district court's order which in effect has dismissed a substantial part of the single count; this amounts to dismissal of a substantial part of the indictment. In United States v. Sanabria, 548 F.2d 1 (1 Cir. 1976), cert. granted, 433 U.S. 907 (1977), the court adopted a similar construction of § 3731, interpreting the word "count" in § 3731 to include "any discrete basis for the imposition of criminal liability that is contained in the indictment". 548 F.2d at 5. Here, although the district court described its action as having "stricken" portions of the indictment, as if they were surplusage, the effect of the court's action could be the same as if a whole count had been dismissed.2 We conclude that this part of the district court's order comes within the statute "liberally construed to effectuate its purposes."
13
This does not end our inquiry however with respect to the appealability of the striking part of the district court's order. The question remains whether the double jeopardy clause of the Fifth Amendment bars retrial on the unexpurgated indictment. We hold that it does not.
14
Obviously Alberti's trial has not terminated in his favor. At no time has he been acquitted by either the jury or the judge. The jury returned a verdict of guilty on the single count. The judge denied his motion for an acquittal. If it were not for the grant of a new trial, which was based on prejudicial publicity and was wholly unrelated to the judge's sua sponte striking of portions of the indictment, reversal of the district court's order would result in reinstatement of the conviction. Alberti would not be subjected to another trial and consequently there would be no problem of double jeopardy. Lee v. United States, 432 U.S. 23, 30 (1977); United States v. Wilson, supra, 420 U.S. at 352-53. Similarly, even if we were to affirm the district court's order striking portions of the indictment, Alberti still would be obligated to stand trial a second time.
15
In those respects any double jeopardy claim in the instant case would be even more tenuous than it was in United States v. Sanford, 429 U.S. 14 (1976) (per curiam), rev'g 536 F.2d 871 (9 Cir. 1976). There the Court held that the double jeopardy clause did not bar retrial of defendants as to whom the judge had dismissed an indictment several months after a sua sponte declaration of a mistrial because of a hung jury. In Sanford the dismissal had been based on evidence adduced at trial relating to the general issue of guilt. United States v. Sanford, 503 F.2d 291, 293 (9 Cir. 1974), vacated and remanded, 421 U.S. 996 (1975), on remand, 536 F.2d at 872, 874 (9 Cir.), rev'd, 429 U.S. 14 (1976). But see Martin Linen Supply, supra, 430 U.S. at 575. The Court considered Sanford to be governed by Serfass v. United States, 420 U.S. 377 (1975), where the Court had held that a judge's pre-trial order dismissing an indictment against a defendant who had not waived his right to a jury trial could be appealed by the government under § 3731 since the defendant in such a case "has not been 'put to trial before the trier of facts, whether the trier be a jury or a judge.' " 420 U.S. at 394, quoting United States v. Jorn, 400 U.S. 470, 479 (1971). Although the Court agreed with the Ninth Circuit that jeopardy had attached in Sanford at the time of the empanelling of the jury for the first trial, thus distinguishing that case from Serfass, it considered Serfass controlling because "(t)he District Court's dismissal of the indictment occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun." 429 U.S. at 16. The dismissal therefore, "like that in Serfass, was prior to a trial that the government had a right to prosecute and that the defendant was required to defend." Id.
16
The key to Sanford, it seems to us, was the fact that the indictment had not been dismissed nor a judgment of acquittal entered before the new trial was ordered. See Martin Linen Supply, supra, 430 U.S. at 575-76, citing United States v. Wilson, supra, 420 U.S. at 348. When preparation for, or actions directed toward, the second trial already have taken place, it cannot accurately be said that it is the appellate court's reversal of the district court's dismissal that subjects the defendant to a new trial. This is what distinguishes Sanford, on the one hand, from Martin Linen Supply and our decision in United States v. Suarez, 505 F.2d 166 (2 Cir. 1974) (per curiam), on the other hand. See Martin Linen Supply, supra, 430 U.S. at 572 n. 11, 575.
17
The instant case is attracted by Sanford rather than by Martin Linen. Indeed our decision here follows a fortiori from the holding in Sanford. In Sanford the judge dismissed the indictment after the jury failed to reach agreement. Although the defendants had not been acquitted, neither had they been convicted. Here, on the contrary, the jury returned a verdict of guilty and the judge denied the motion for an acquittal. The decision to strike portions of the indictment was made with the new trial in mind and makes sense only in the context of the new trial. Although there was no time lapse here as there was in Sanford between the declaration of a mistrial and the dismissal of part of the indictment, the time lapse in Sanford was significant only because it emphasized the pretrial character of the dismissal order. The absence of such a time lapse is of no significance here. The order striking portions of the indictment was entered solely and expressly for purposes of the new trial and was accompanied by denial of Alberti's motion for an acquittal.
18
To summarize our double jeopardy holding: this is a situation where, after the jury had returned a verdict of guilty and defendant's motion for an acquittal had been denied, defendant's motion for a new trial was granted on grounds unrelated to the motion for an acquittal; and for purposes of retrial the judge struck substantial portions of the indictment. Hence the striking, or dismissal, not only was "prior to a trial that the government had a right to prosecute and that the defendant was required to defend", but was prior to a new trial that defendant had requested in order to avoid imposition of sentence on a guilty verdict that the government already had obtained. Under these circumstances we hold that the double jeopardy clause does not bar retrial and that § 3731 authorizes the government's appeal.
III. STRIKING PORTIONS OF THE INDICTMENT
19
The single count indictment contained several specifications of perjury consisting of Alberti's answers to four groups of questions put to him before the grand jury.3 The first group of questions probed Alberti's knowledge of ziganette card games played at Nairy's Social Club. The second group concerned the activities and participation in the game of one Michael Bona. The third and fourth groups involved Alberti's knowledge, respectively, about the dealers of the game and about the percentage of wagers taken by the house as profits from the game.
20
The district court held that the third and fourth groups of questions were sufficiently succinct and direct, and that Alberti's answers could support a conviction. Those portions of his testimony are still in the indictment and are not involved on this appeal.
21
But the court struck from the indictment the first group, and parts of the second group, of questions and answers. It held, first, that the questions about the ziganette game were too imprecise and ambiguous and, second, that the government had not introduced sufficient evidence of the falsity of Alberti's answers to some of the questions about Bona. We hold that both rulings were erroneous.
22
The first group of questions and answers was as follows:
23
"Q. Do they play some game called siginete?
24
A. Siginete?
25
Q. Yes, that is a high stakes card game.
26
(1) A. Not necessarily, no.
27
Q. It isn't?
28
(2) A. I haven't seen any game of siginete. Every time I go in there, the doors are open. You can go in there anytime. I go in there and have coffee, watch TV like a lot of other people do.
29
Q. Isn't it true, Mr. Alberti, that there is a high stake siginete game that is in operation at that club almost twenty-four hours a day?
30
(3) A. I have never seen one. I have never seen one, sir. I don't recall ever seeing one."
31
The court found that answer (1), although misleading, was not false, and that answer (2) was unresponsive. Answer (1) however suggests that defendant was familiar with ziganette. Answer (2) relates back and responds to the first question and sets the foundation for defendant's denial in answer (3) of having seen a ziganette game at Nairy's. The preceding questions and answers constituted the predicate for question (3). They provided the context in which Alberti made the materially false statements in answer (3). We have approved the practice of including in the indictment "enough of the testimony surrounding the allegedly false statements to place them in coherent context." United States v. Bonacorsa, 528 F.2d 1218, 1221 (2 Cir.), cert. denied, 426 U.S. 935 (1976); see Stassi v. United States, 401 F.2d 259, 262 (5 Cir. 1968), vacated on other grounds sub nom. Giordano v. United States, 394 U.S. 310 (1969). At the new trial Alberti is entitled to limiting instructions to ensure that he is not convicted for his unresponsive but true statement that ziganette is "(n)ot necessarily" a high stakes card game. Bronston v. United States, 409 U.S. 352, 359 (1973).
32
The court also held that answer (3) could not support a conviction because it is "literally true". The court reasoned that "Alberti testified that he was not at Nairy's around the clock, the evidence did not show that the ziganette game was in operation continuously, and the evidence showed that not all the games were for high stakes." We believe that the court misconstrued the nature of the question and the significance of the answer. Alberti's continuous presence at Nairy's was not essential to the falsity of his answer, for the answer depended only on the state of his knowledge, not on the extent of his presence at Nairy's. Nor was the government required to prove that the game was played continuously. The meaning of the phrase "almost twenty-four hours a day", although a figure of speech, is clear. "(T)he . . . interpretation placed upon the question by the defendant at the time of the alleged prevarication . . . is an issue for the jury . . . ." United States v. Corr,543 F.2d 1042, 1049 (2 Cir. 1976); see Bonacorsa, supra, 528 F.2d at 1221. Here there was much evidence from which the jury could infer that Alberti knew that ziganette was played at Nairy's on a regular basis, day and night. And the fact that ziganette is not always played for high stakes is not fatal, for Alberti stated that he had "never" seen a high stakes ziganette game played at Nairy's.
33
The grand jury was trying to ascertain whether Alberti had knowledge that a high stakes ziganette game was played at Nairy's on a fairly regular and continuous basis.
34
"When viewed with anything but the partisan eye of an advocate, the questions, as they followed one upon the other, were pointed toward the development of this information. Absent fundamental ambiguity or imprecision in the questioning, the meaning and truthfulness of appellant's answer was for the jury," Bonacorsa, supra, 528 F.2d at 1221.
35
The second group of questions and answers in the instant case concerned the connection of Bona with the ziganette game. The portion excised was as follows:
36
"Q. What does Mr. Bona do for a living?
37
A. I don't know.
38
Q. He is at the club every day; isn't he?
39
A. I don't know if he is at the club every day. I don't know any activities that the man is in."
40
The court held that there was insufficient evidence to support a perjury conviction based on these questions and answers because there was no evidence about Bona's occupation or that Alberti was at the club every day. Again, the truth or falsity of Alberti's answers was a question for the jury. There was evidence of Bona's activity at Nairy's in Alberti's presence from which a jury could infer that Bona ran the game for a living. Further, these questions and answers led to other questions and answers about Bona's participation in the ziganette game which the court held, and we agree, were sufficient to support a conviction. The second group of questions and answers as such was properly included in the indictment. Bonacorsa, supra, 528 F.2d at 1221.
41
We hold that none of Alberti's grand jury testimony should have been stricken from the indictment. We direct that at the second trial the jury should be instructed, in accordance with Bronston, supra, 409 U.S. at 359, that it may not convict for unresponsive but literally true declarations.
42
Appeal dismissed as to that part of the order which granted a new trial; as to that part of the order which struck portions of the indictment, reversed and remanded with directions. The mandate shall issue forthwith.
*
Hon. Oscar H. Davis, Judge, United States Court of Claims, sitting by designation
1
See note 3 infra
2
Ordinarily the dismissal of one or more counts of an indictment terminates the prosecution as to the dismissed count or counts. Our appellate jurisdiction to review the instant order might be drawn into question on the ground that nothing has been terminated; Alberti faces a new trial on the single count on which he was indicted. We find this unpersuasive. The original Senate bill amending the Criminal Appeals Act authorized the government to appeal from any decision or order "terminating a prosecution" in favor of a defendant as to any one or more counts. See United States v. Wilson, supra, 420 U.S. at 338. The language about "terminating" a prosecution was eliminated by the Conference Committee without explanation. "In place of that provision, the Committee substituted the language that was ultimately enacted . . . ." Id. In Wilson, the Court concluded that "it seems inescapable that Congress was determined to avoid creating nonconstitutional bars to the Government's right to appeal." Id. at 339. Surely it is not for us to interpose a barrier that seems to have been rejected explicitly by Congress and which would frustrate the purposes of the Act
As far as the interlocutory nature of the instant appeal is concerned, we see no difference between the instant situation and that where one count of a multiple count indictment has been dismissed. Since an order of the latter type would be appealable under § 3731 by its very terms, we see no reason to treat the order in the instant case differently.
3
Alberti's testimony before the grand jury as set forth in the indictment is as follows, with the stricken portions in italics:
"Q. Where do you see him?
A. At the club. There is a club on Ferry and Grant just like the Buffalo Athletic Club or the Catholic Club on Delaware Avenue, I forget what the name of it is, but like the Catholic Club on Delaware Avenue.
Q. Do you pay dues to belong to this club?
A. Every member pays a dollar or two dollars. You give a dollar or two dollars. You pay as you go along. When you win a pot, you give a dollar or two dollars, half a dollar, that is how they pay the rent.
Q. You say that a dollar or so comes out of the pot?
A. Whatever they want to give. They give a dollar, two dollars, half a dollar. They play short cards. They play rummy, gin rummy, tap rummy. They play poker.
Q. Do they play some game called siginete?
A. Siginete?
Q. Yes, that is a high stakes card game.
A. Not necessarily, no.
Q. It isn't?
A. I haven't seen any game of siginete. Every time I go in there, the doors are open. You can go in there anytime. I go in there and have coffee, watch TV like a lot of other people do.
Q. Isn't it true, Mr. Alberti, that there is a high stake siginete game that is in operation at that club almost twenty-four hours a day?
A. I have never seen one. I have never seen one, sir. I don't recall ever seeing one.
Q. What does Mr. Bona do for a living?
A. I don't know.
Q. He is at the club every day; isn't he?
A. I don't know if he is at the club every day. I don't know any activities that the man is in.
Q. Does he have anything to do with the siginete game?
A. Not to my knowledge.
Q. Nothing to do whatsoever with the siginete game?
A. No, not to my knowledge.
Q. What is the percent that the house takes out of the siginete game?
A. I don't know.
Q. Is it 5%?
A. I don't know.
Q. You don't know if it is 5%?
A. No.
Q. You don't know of any fixed percent that is taken from the pot?
A. No, I don't know.
Q. You are sure of that?
A. Yes, I am positive.
Q. Have you ever been a dealer in that game?
A. No, never.
Q. Never?
A. No, never.
Q. Do you know who the dealers are?
A. No." | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1644995/ | 994 So. 2d 1288 (2008)
STATE of Louisiana
v.
Bruce FIELDS.
No. 2008-KK-964.
Supreme Court of Louisiana.
November 21, 2008.
Rehearing denied.
CALOGERO, C.J., would grant.
JOHNSON, J., would grant the writ and assigns reasons.
JOHNSON, J. would grant the defendant's writ application for the following reasons:
This Court recognized in State v. Huynh, 08-1628, pp. 1-2 (La.11/10/08), 993 So. 2d 1198 (citing United States v. Woodrum, 202 F.3d 1, 7 (1st Cir.2000)),
(`[S]louching, crouching, or any other arguably evasive movement, when combined with other factors particular to the defendant or his vehicle, can add up to reasonable suspicion.... But not every slouch, crouch, or other supposedly furtive movement justifies a stop.... The proper inquiry is case-specific and context-contingent, and the surrounding circumstances ordinarily will tell the tale.'); cf. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)("The Fourth Amendment requires `some minimal level of objective justification' for making the stop.")(quoting INS v. Delgado, 466 U.S. 210, 217, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247 (1984)).
However, in Huynh, the police officer made eye contact with the defendant, who then slouched down in what the officer reasonably took as an evasive maneuver to avoid recognition. In the present case, when the police officers passed by the vehicle parked on the side of an intersection they observed defendant "slouched down in the passenger seat once we passed it." That testimony does not support a finding that defendant reacted to the presence of the police by slouching in an evasive maneuver. While police officers may approach a vehicle to check on the condition of an occupant who appears slouched over or slumped down in his seat, State v. Neyrey, 383 So. 2d 1222, 1224-25 (La.1980); State v. Keller, 403 So. 2d 693, 696 (La.1981), they may not, on the basis of that conduct alone, subject him to a forcible detention by ordering him from the car and conducting a self-protective frisk for weapons. Cf. United States v. Zapata-Ibarra, 212 F.3d 877, 883 (5th Cir. 2000)("We have noted that passengers commonly slump in their seats to rest, particularly at nighttime hours.... Therefore, we have required a more affirmative indication of an attempt to hide for this factor to weigh in favor of the presence of reasonable suspicion.") | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563509/ | 16 So. 3d 132 (2009)
HOOKER
v.
STATE.
No. SC09-1357.
Supreme Court of Florida.
July 29, 2009.
Decision without published opinion Habeas Corpus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645009/ | 994 So. 2d 153 (2008)
STATE
v.
KELLY.
No. 2008 KA 0443.
Court of Appeal of Louisiana, First Circuit.
October 14, 2008.
HUGHES, J.
Decision without published opinion. Convictions and Sentences Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1735167/ | 727 N.W.2d 35 (2006)
ANDERSON
v.
LABOR AND INDUS. REVIEW COMM'N.
No. 2006AP0060
Supreme Court of Wisconsin
December 5, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858133/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-212-CR
ANDRE SCOTT,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
NO. 7517, HONORABLE OLIVER S. KITZMAN, JUDGE PRESIDING
Appellant Andre Scott appeals his conviction for the constructive delivery of less
than twenty-eight grams of cocaine. After the jury found appellant guilty, the trial court assessed
his punishment at sixteen years' imprisonment.
In his sole point of error, appellant challenges the sufficiency of the evidence to
sustain his conviction. He contends that as a matter of law the evidence is insufficient to establish
constructive delivery or transfer of the cocaine as alleged in the indictment. We agree and will
reverse the judgment of conviction.
The standard of reviewing the legal sufficiency of the evidence is whether, viewing
the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have
found beyond a reasonable doubt the essential elements of the offense charged. Jackson v.
Virginia, 443 U.S. 307, 319 n.12 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex. Crim.
App. 1984). The same standard applies to circumstantial evidence cases as well as cases involving
direct evidence. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990); Christian v.
State, 686 S.W.2d 930, 934 (Tex. Crim. App. 1985); see also Geesa v. State, 820 S.W.2d 154
(Tex. Crim. App. 1991). (1)
The sufficiency of the evidence must also be measured against the jury charge. If
the evidence does not conform to the jury instructions given, it is insufficient as a matter of law.
Nickerson v. State, 782 S.W.2d 887, 891 (Tex. Crim. App. 1990); Garrett v. State, 749 S.W.2d
784, 802-03 (Tex. Crim. App. 1988) (op. on reh'g); Boozer v. State, 717 S.W.2d 608, 610-11
(Tex. Crim. App. 1984).
With this background, we turn to the facts of the instant case. Salvador Abreo, a
narcotics officer for the Texas Department of Public Safety, testified that on May 16, 1991, he
was working in an undercover capacity in Fayette County. Abreo was working with a confidential
informer, later shown by the evidence to be one Randy Witte. According to Abreo, Witte had
been talking to Timothy Dobbins "all along," and they all met at the Charter Food Store about
7:45 or 8 p.m. on May 16th. Dobbins did not know that Abreo was an undercover officer.
Dobbins, therefore, had not been searched for either money or drugs on his person.
Abreo related that they drove in Dobbins's car to the Circle T Bar or Club in
LaGrange. Abreo was in the rear seat while Witte was in the front passenger seat of the car.
There were a number of males in the Club's parking lot. Abreo had earlier given Dobbins fifty
dollars in cash. Dobbins got out of the car. He walked about ten yards to where appellant was
standing. Abreo could not hear the conversation between appellant and Dobbins, but he did see
an "exchange of hands" and observed Dobbins give the fifty dollars to appellant. Abreo could
not see the object, if any, handed to Dobbins, but he related that Dobbins returned to the car and
handed him three off-white colored rocks which Abreo believed to be cocaine. Abreo placed the
rocks in the outside wrapper of a cigarette package and put them in his pocket. Abreo stated that
Dobbins wanted some of the rock cocaine, but he could not lawfully give him any, so he later
gave Dobbins twenty dollars for Dobbins's assistance. (2) Abreo revealed that Dobbins then
returned him (Abreo) to Abreo's own car. Abreo placed the time of the transaction at about 8:21
p.m. Abreo had not previously encountered appellant, but had heard of a "Drake," which he
suggested was appellant's nickname.
Dobbins, who previously had been convicted of burglary of a habitation and of
delivery of cocaine arising out of the instant transaction, testified for the State. Dobbins admitted
that he drove Abreo and Witte to the parking lot of the Circle T Bar on the date in question. He
stated that it was about 4:30 or 5:00 in the afternoon. Dobbins did not know Abreo was a peace
officer. He claimed that he had neither money nor drugs on his person at the time. Dobbins
related that when he parked the car, appellant and Greg Smith, both of whom knew him,
approached the car and "looked in." He said that while Smith was talking to "the other guys,"
appellant called him "off to the side," and that he got out of the car and walked only about ten feet
(not yards) away. Dobbins initiated the conversation with appellant by asking, "Do you have
anything?" Appellant opened a bag and gave Dobbins three rocks, and Dobbins gave appellant
the fifty dollars Abreo had given him earlier. Dobbins then testified that he returned to the car
where he gave the three rocks to Abreo. He did not get the twenty dollars from Abreo until he
had returned to Abreo's car.
On cross-examination, he was asked if he understood what he was supposed to do
with the fifty dollars he got from Abreo. He replied: "Get some rocks from Andre [appellant]."
Dobbins then explained that you normally get three rocks for fifty dollars.
The State called Lou Haby, a chemist/toxicologist with the Texas Department of
Safety Crime Laboratory in Houston. Haby testified that the substance, delivered to the
laboratory by Officer Abreo, was shown by chemical analysis to be cocaine in an amount of 0.41
gram.
The State also called Greg Smith, who had been convicted of delivery of cocaine
on May 16, 1991, in the parking lot of the Circle T Bar. Smith testified that he was "high on
crack" at the time and did not remember anything that occurred. He stated that he pleaded guilty
"to keep from getting fifty years." His testimony did not support the State's case. (3)
The elements of the offense of delivery of a controlled substance are: (1) a person,
(2) knowingly or intentionally, (3) delivers, (4) a controlled substance. Stewart v. State, 718
S.W.2d 286, 288 (Tex. Crim. App. 1986); Swinney v. State, 828 S.W.2d 254, 256 (Tex.
App.--Houston [1st Dist.] 1992, no pet.).
An unlawful delivery of a controlled substance can be accomplished by actual
transfer, constructive transfer, or an offer to sell. Tex. Health & Safety Code Ann. § 481.002(8)
(West 1992).
The instant indictment, in pertinent part, alleged that on or about May 16, 1991,
appellant:
did then and there intentionally and knowingly deliver to Sergeant S. Abreo, Texas
Department of Public Safety Narcotics Officer, a controlled substance namely
cocaine, of less than twenty-eight grams by constructively transferring said
controlled substance.
The indictment by its terms limited the delivery alleged to a constructive transfer. The trial court
in its charge tracked the indictment.
Since "constructive transfer" is not defined in the Texas Controlled Substances Act,
it must be construed according to its plain meaning. Daniels v. State, 754 S.W.2d 214, 219 (Tex.
Crim. App. 1988); Campos v. State, 623 S.W.2d 657, 658 (Tex. Crim. App. 1981). In
construing the meaning of "constructive transfer," we are guided by earlier appellate opinions.
"Constructive transfer" occurs when the defendant transfers a controlled substance, either
belonging to him or under his control, by some other person or means, at the direction of the
defendant. Thomas v. State, 832 S.W.2d 47, 51 (Tex. Crim. App. 1992) (emphasis added);
Daniels, 754 S.W.2d at 220-22; Swinney, 828 S.W.2d at 257; Atuesta v. State, 788 S.W.2d 382,
385 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). "Constructive transfer is proved by
showing that 1) prior to the alleged delivery, the transferor had either direct or indirect control
of the substance transferred, and 2) the transferor knew of the existence of the transferee."
Daniels, 754 S.W.2d at 220-22 (citing Rassmussen v. State, 608 S.W.2d 205, 209-10 (Tex. Crim.
App. 1980) and Gonzales v. State, 588 S.W.2d 574, 577 (Tex. Crim. App. 1979)); Swinney, 828
S.W.2d at 257. (4)
The knowledge requirement is best discussed in Gonzales, 588 S.W.2d at 577.
There, the Court of Criminal Appeals held that constructive transfer requires the transferor at least
to be aware of the existence of the ultimate transferee before delivery. This does not mean that
the transferor needs to know the identity or be acquainted with the ultimate recipient. It requires
only that when the State alleges constructive transfer to an alleged ultimate recipient, the accused
must have contemplated that his initial transfer would not be the final transaction in the chain of
distribution.
In a clarifying statement, Judge Dally, concurring in Gonzales, wrote:
The evidence simply does not show that appellant knowingly made a
delivery of heroin to Galvan [as alleged]. There is nothing in the record to show
that appellant knew that he was making a transfer of heroin, either actual or
constructive, to Galvan. There is no evidence that the appellant had ever met
Galvan or that he knew Galvan's role in the sale. The testimony of Galvan would
have supported a conviction of the appellant either for possession of heroin or for
the delivery of heroin to Montaya, but the appellant was not charged with these
offenses.
588 S.W.2d at 578 (emphasis in original). The knowledge requirement was reaffirmed in
Sheffield v. State, 623 S.W.2d 403 (Tex. Crim. App. 1981); see also Gonzales v. State, 800
S.W.2d 621, 623 (Tex. App.--Dallas 1990, no pet.); Stone v. State, 794 S.W.2d 868, 871 (Tex.
App.--El Paso 1990, no pet.).
In the instant case, Sergeant Abreo did not see what object, if any, appellant passed
to Dobbins, but the unsearched Dobbins testified that the three rocks he handed to Abreo came
from appellant. The jury could have accepted Dobbins's testimony and found that appellant had
control of the cocaine at the time of the transfer to Dobbins. Did the evidence, however, show
that appellant exercised control or any direction over the conduct of Dobbins with regard to the
transfer of the cocaine to Abreo, or show that appellant knew that Abreo would be the ultimate
recipient of all or any part of the cocaine? According to Abreo, Dobbins, who had been given
the fifty dollars, got out of the car and approached appellant in the parking lot ten yards away.
Abreo had not previously encountered appellant. They did not speak or have any contact with
each other. According to Dobbins, appellant, who knew Dobbins, approached the car and
"looked in." There was no evidence of any conversation. Dobbins got out of the car at a sign
from appellant, but initiated the conversation by asking appellant if he had "anything," while he
held the fifty dollars. Appellant reached into a bag and gave three rocks to Dobbins. Dobbins
explained that it was normal to get three rocks of cocaine for fifty dollars. Abreo heard no
conversation between appellant and Dobbins, and nothing in Dobbins's testimony shows that he
mentioned Abreo and Witte while talking to appellant.
While Dobbins testified that he did not know Abreo was a police officer, he knew
that the fifty dollars was to be used to get "some rocks" from appellant. Later, Dobbins received
twenty dollars from Abreo for his assistance, further indication that Dobbins did not act as
appellant's agent or under appellant's control, direction or influence in transferring cocaine to
Abreo. See Davila v. State, 664 S.W.2d 722, 724 (Tex. Crim. App. 1984); Dawson v. State, 812
S.W.2d 635, 637 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd).
As to the knowledge requirement, the instant case is factually similar to Gonzales.
There is no suggestion in the record that appellant knew that the cocaine was being purchased by
Dobbins on behalf of a third person. Gonzales, 588 S.W.2d at 577-78; see also Stewart v. State,
756 S.W.2d 798, 800-01 (Tex. App.--Dallas 1988, pet. ref'd). The State relies upon Sheffield v.
State, 623 S.W.2d 403 (Tex. Crim. App. 1981). The reliance is misplaced. Sheffield involved
an appeal from an order revoking probation. The burden of proof in revocation proceedings is
by a preponderance of the evidence, not beyond a reasonable doubt. Garrett v. State, 619 S.W.2d
172, 174 (Tex. Crim. App. 1981). Next, there are a number of factual distinctions. In Sheffield,
there were two constructive transfers of phenmetrazine (Preludin) from the defendant to Marco
Delgado (an undercover police officer), and four people were involved in the transfers, one being
an apparent employee of the defendant. As the Court of Criminal Appeals pointed out, the
defendant was aware of Delgado's existence and identity and knew the money was coming from
Delgado. He also acted upon Delgado's instruction concerning the numbers of pills desired
during the second delivery.
We conclude, viewing the evidence in the light most favorable to the jury's verdict,
that no rational trier of fact could have found beyond a reasonable doubt all the essential elements
of the offense of constructive transfer of cocaine as alleged in the indictment and as submitted to
the jury by the trial court's charge. Our responsibility does not include substituting our view of
the evidence for that of jury's, Blankenship v. State, 788 S.W.2d 198, 207 (Tex. Crim. App.
1989); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988), but our function is to
ensure as a matter of law that no one is convicted of crime except on proof beyond a reasonable
doubt. "In carrying out our task, we remain cognizant that 'proof beyond a reasonable doubt'
means proof to a high degree of certainty. Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim.
App. 1991)." Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992). The point of
error is sustained.
Under the mandate of the United States Supreme Court in United States v. Burks,
437 U.S. 1 (1978), and Greene v. Massey, 437 U.S. 19 (1978), a judgment of conviction must
be set aside if the evidence is insufficient to support a finding of guilt, and an order of acquittal
entered.
The judgment of conviction is reversed and reformed to reflect an acquittal.
John F. Onion, Jr., Justice
Before Justices Jones, Kidd and Onion*
Reversed and Reformed
Filed: November 24, 1993
Do Not Publish
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Appellant's trial commenced on March 19, 1992, after the effective date of the Geesa
decision.
2. Abreo also testified: "On these crackheads, what we call on the streets, every time you go
make a buy they always want a pinch or a little bit of the crack cocaine."
3. Sergeant Abreo testified that six minutes before the transaction between appellant and
Dobbins, he (Abreo) purchased two white rocks of cocaine from Smith. This transaction was not
developed in any detail by the evidence.
4. The trial court in its charge instructed the jury as follows:
A "constructive transfer" of a controlled substance, as used here, means the
transfer of a controlled substance, either belonging to the person charged or under
his direct or indirect control, by some other person or manner, at the instance or
direction of the person charged. In order to establish a constructive transfer by the
person charged to some other person, it must be shown that prior to the alleged
delivery the transferor must have either direct or indirect control of the substance
transferred and the transferor knew of the existence of the transferee. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1563611/ | 16 So.3d 827 (2009)
REID
v.
STATE.
No. 2D08-3591.
District Court of Appeal of Florida, Second District.
August 21, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563648/ | 960 A.2d 745 (2008)
197 N.J. 13
STATE
v.
HAMMOND.
C-421 September Term 2008, 63,298.
Supreme Court of New Jersey.
November 19, 2008.
Petition for certification. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563523/ | 16 So. 3d 140 (2009)
SULLIVAN
v.
STATE.
No. 2D08-600.
District Court of Appeal of Florida, Second District.
March 11, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2743239/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN THE INTEREST OF: J.M., A MINOR : No. 301 MAL 2014
:
:
PETITION OF: J.M., A MINOR : Petition for Allowance of Appeal from the
: Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 16th day of October, 2014, the Petition for Allowance of Appeal
is DENIED. | 01-03-2023 | 10-16-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2454209/ | 679 S.W.2d 852 (1984)
LAKE TISHOMINGO PROPERTY OWNERS ASSOCIATION, Plaintiff-Respondent,
v.
Carla Helen CRONIN, et al., Defendants,
John Johnson, Everett V. Johnson, Mary Frances Johnson, Albert George Beyer, Cecelia M. Beyer, Henry E. Klein, Edna Klein, Defendants-Appellants.
No. 65516.
Supreme Court of Missouri, En Banc.
October 9, 1984.
As Modified on Denial of Rehearing November 20, 1984.
*853 Albert George Beyer, St. Louis, for defendants-appellants.
Jack C. Stewart, Dennis H. Tesreau, Hillsboro, for plaintiff-respondent.
WELLIVER, Judge.
Lake Tishomingo Property Owners Association, respondent, brought this action seeking to enforce liens on real property owned by appellants resulting from their failure to pay a special assessment levied by respondent for the purpose of maintaining certain common property. It is undisputed that the special assessment was not authorized by the covenant restrictions contained in the original indenture and no provision in the original covenants permitted their subsequent modification. The question before us is whether a consent decree, entered as final judgment in an earlier suit, which amended the original covenants so as to permit special assessments can now be enforced against these property owners. The Circuit Court of Jefferson County ordered enforcement of the liens. We ordered the cause transferred after the Eastern District reversed the trial court. We affirm the judgment of the trial court.[1]
*854 I
Lake Tishomingo Subdivision is a lake community located in Jefferson County consisting of a 120 acre man-made lake surrounded by approximately 930 lots. Its developer, Lake Development Enterprises, Inc. (LDE), platted the property and constructed the lake in the late 1940's. It is clear from the record that the subdivision was designed to be, and remains, a high quality residential community. The present dispute grew out of the need to dredge the lake due to an accumulation of sediments. There is no substantial dispute as to the seriousness of the problem or the necessity of the operation. Water depth had decreased as much as six feet in areas making boating impossible in parts of the lake, fishing was deteriorating, the water was polluted, and the lake suffered from an overabundance of aquatic weeds. Dredging the lake emerged as the only solution after numerous individual attempts to remediate the problem failed. An engineering firm, hired by respondent to study the problem, made specific recommendations and estimated the cost of the dredging operation at approximately $170,000.
The cost estimate far exceeded the revenues that could be generated by the annual assessment prescribed by the subdivision's covenant restrictions, set at fifty-five cents per front foot. A group of residents, including appellant Albert Beyer, unsuccessfully sought to obtain financial assistance from the federal government. When that effort failed, respondent's Board of Directors proposed and adopted a resolution calling for a special election to amend the existing covenants to allow a one-time special assessment of $2.60 per front foot to finance the cost of the dredging.[2] Respondent's directors proposed this course of action in reliance of a provision in a consent decree previously rendered final which authorized:
[c]hanges in, or additions, to, the said subdivision restrictions ... [upon approval] by a simple majority of the votes cast at an election wherein each lot owner in the subdivision shall be entitled to cast one vote for each ten (10) front feet of lot owned by him, but not less than five (5) nor more than ten (10) votes per platted lot. (Said changes or additions may be for the purpose of assessments, extension of the restrictions, and other matters consistent with the purposes of the subdivision and the trust ...)
The proposition was adopted by a majority of the votes cast. Out of 4,913 possible votes 2,904 were cast; 1,976 voted for the proposition, 928 voted against it. Two hundred forty-six property owners voted in the election; 163 voted for the special assessment, 83 voted against it. Respondent recorded the amendment and levied the assessment.
Respondent filed this suit in 1978 against seventy-six property owners who had failed *855 to pay the special assessment. For reasons that are not altogether clear, respondent proceeded to trial with its claims against only the seven defendants now before us. Presumably the balance of the seventy-six owners paid their assessed shares prior to trial. Appellants include Albert Beyer, an attorney with a long history of involvement in the subdivision's affairs, his wife; his wife's sister, Mary Frances Johnson, her husband and their son, John Johnson; and another married couple, Henry and Edna Klein. Mr. and Mrs. Beyer own nine lots in the subdivision; Mr. and Mrs. Johnson own two lots; John Johnson owns four lots; and Mr. and Mrs. Klein own a single lot.[3] Respondent contends the special assessment liens are valid and enforceable because the property owners in the subdivision approved the assessment in a special election held in accordance with the subdivision restrictions as amended by a now final consent decree. Appellants' defense is that the court entering the consent decree acted in excess of its jurisdiction, rendering the decree void. In order to better understand these claims and counterclaims, we will detail at some length the circumstances surrounding the prior litigation and its eventual settlement.
The developer of Lake Tishomingo Subdivision, Lake Development Enterprises (LDE), included a uniform set of subdivision restrictions in each deed given to purchasers of lots in the subdivision. The restrictions, denominated in the deeds as covenants running with the land, reserved LDE's title to certain property surrounding the lake, including roadways, parkways and the dam. To provide for the maintenance of these areas, the covenants authorized LDE to levy an annual assessment not to exceed fifty-five cents per front foot.[4]
In the mid 1960's, a group of eleven property owners in the subdivision became dissatisfied with the manner in which LDE was using the funds collected from the annual assessment and instituted a class action in the Circuit Court of the City of St. Louis against LDE on behalf of all owners of property in the subdivision. The class representatives alleged that LDE had failed to perform its duties as trustee of the assessment funds by misappropriating the funds for its private use and refusing to maintain the subdivision's dam and roads. They prayed for removal of LDE as trustee and the appointment of a successor trustee, restitution of all misappropriated funds and other relief. Appellant Albert Beyer signed the petition as one of the attorneys for the plaintiff class.
After protracted negotiations, in the midst of which four additional parties intervened as plaintiffs,[5] a final settlement in the form of a consent decree was agreed to by all the parties in March 1971. Apparently both the parties and the court recognized, however, that the Circuit Court of the City of St. Louis was without jurisdiction to render a judgment in the case.[6]
*856 Consequently, though the court purported to approve the decree, it labeled substantial portions of it "advisory only and ... subject to and dependent upon appropriate Court action to be filed hereafter in Jefferson County, Missouri."
As contemplated, the plaintiffs filed a new class action in the Circuit Court of Jefferson County, naming LDE and the intervening parties as defendants. Plaintiffs repeated the allegation averred in the earlier suit; in addition they alleged that it was necessary to modify the original restrictions because LDE had abandoned them and because they had become impossible to perform and impractical to the community. Respondent, named as a defendant in this suit, was represented by appellant Albert Beyer. The parties submitted to the court a proposed consent decree identical in all material respects to the decree approved in the St. Louis case. Notice of the settlement, indicating that the decree was binding on all lot owners unless objected to within thirty days, was mailed to the owners of property in the subdivision. For this purpose, the attorneys for the plaintiff class relied on records maintained by LDE. Copies of both decrees also were posted in the subdivision's community center. There is nothing to indicate that any objections were filed and the decree was recorded in Jefferson County in early 1972. For his efforts in the case, the court awarded Mr. Beyer $3,000 in attorneys fees.
The decree as finally approved purported to work three significant changes in the original covenants. First, all the rights, powers and obligations of LDE as the original grantor were transferred to the Lake Tishomingo Property Owners Association (LTPOA), respondent herein, as trustee for the benefit of the lot owners in the subdivision; second, LDE's legal title to the subdivision's common areas was ordered conveyed to LTPOA to hold in trust for the benefit of the lot owners; and finally, the court approved the method, described earlier, for amending the subdivision restrictions.
None of the parties in the Jefferson County suit sought appellate review of the consent decree and its provisions have otherwise gone unchallenged until respondent filed this suit. Appellants agree that residents of the subdivision have viewed and dealt with respondent as the legitimate successor-in-interest to LDE. Property owners have participated in periodic elections to elect the members of respondent's Board of Directors, public meetings are regularly held, and committees have been established to study specific issues in the community. Respondent has annually levied the regular assessment and property owners, including all of the appellants, have paid it without challenge. Although the record is not clear on the question, it does not appear that an attempt had been made to change or add to the original covenants prior to the attempt giving rise to the present suit.
The trial court ordered enforcement of the liens and awarded interest and attorneys fees. The court found that the earlier St. Louis and Jefferson County cases were valid class actions and that both courts had jurisdiction over the subject matter of the suits. Appellants dispute the latter finding and contend that neither court was empowered to amend the original covenants so as to increase the burden on the covenanted land.
II
Appellants are correct in contending that the courts in both of the prior actions were powerless to amend or reform the original covenants. The records are less than clear that all successors in title were parties to those actions and, in any event, reformation or amendment of the covenants was permissible only upon proof of fraud or mistake, Lake Wauwanoka, Inc. v. Spain, 622 S.W.2d 309 (Mo.App.1981), *857 neither of which was alleged or proven in those proceedings. The Courts' exercise of power in excess of their jurisdiction renders that part of the consent decree which amended the original covenants void and subject to collateral attack in this proceeding. Rippe v. Sutter, 292 S.W.2d 86 (Mo. 1956). That which remains of the consent decree is the designation of respondent as successor trustee and holder of title to the common properties of the subdivision and the extension of the existing covenants for a period of twenty-five years,[7] matters accepted by all parties.
It is clear to us that all the property owners in the subdivision, except appellants, have recognized at least a contractual obligation to bear their fair share of the cost of preserving the common properties for the benefit of all owners in the subdivision. On the record before us the equitable obligation of these appellants cannot be disputed. While the Court is powerless to reform or amend the original covenants, we cannot close our eyes to the fact that, when compared to the cost of the dredging operation, the assessment permitted by the original covenants was tantamount to no assessment at all. The assessment voluntarily made by the large majority of lot owners appears fair and equitable. The evidence regarding the dredging operation reflects that it was both reasonable and necessary for the preservation of the property value of the more than 900 lots in the subdivision. Under the unique circumstances attending this case, our sense of fairness and justice compels us to enforce the clear equitable obligation of appellants to bear their share of the costs necessary for preserving the common property essential for continuation of the subdivision. See Weatherby Lake Improvement Co. v. Sherman, 611 S.W.2d 326 (Mo.App.1980). Thus understood, the voluntary assessment made and honored by the great majority of property owners was enforceable by the trial court under the court's power to render equity.
Respondent's motion to substitute parties on account of the death of Henry Klein is sustained and a copy of the motion is ordered transmitted to the circuit court for correction of the final judgment.
For these reasons, the judgment of the trial court is affirmed.
HIGGINS, GUNN, BILLINGS and DONNELLY, JJ., concur.
RENDLEN, C.J., concurs in result.
BLACKMAR, J., concurs in result in separate opinion filed.
BLACKMAR, Judge, concurring in result.
I agree that the decision of the trial court should be sustained on the basis of general equitable principles.
I write because the principal opinion unnecessarily and unwisely pronounces the consent decrees "void." This broad language might dissuade a court from making an equitable adjustment in a future situation which we cannot precisely foresee, in the manner of Weatherby Lake Improvement Company v. Sherman, 611 S.W.2d 326 (Mo.App.1980), which is cited with apparent approval.
The authorities cited in the principal opinion are not at all appropriate. In Lake Wauwanoka, Inc. v. Spain, 622 S.W.2d 309 (Mo.App.1981), Judge Satz carefully distinguished between "failure to state a claim" and "want of jurisdiction over the subject matter" in an opinion holding that the trial court "did possess subject matter jurisdiction." His opinion affirmed the dismissal of the action because "appellants' petitions failed to state a claim upon which relief could be granted." The case before him involved the dismissal of the plaintiff's *858 petition. The court properly expressed no opinion as to what the result would have been if there had been a final and unappealed judgment, whether in a class action or otherwise.
Rippe v. Sutter, 292 S.W.2d 86 (Mo.1956) bears not the least resemblance to this case. It states only an abstract proposition and is of no help in solving the present problem. The principal opinion demonstrates that people who involve themselves in a venture of the kind described in evidence may sometimes fail to plan and provide for conditions and circumstances which are essential to the success and continuation of the venture. I would avoid sweeping pronouncements about the absence of equitable jurisdiction. The principal opinion refers to "the unique circumstances attending this case." We speak authoritatively only on the unique circumstances of any case which comes before us, leaving it to future courts to determine the application of our holding to other fact situations.
Because of the unwarranted attempt to expand the scope of the opinion by means of the first paragraph in Part II, my concurrence in affirming the judgment must be in the result only.
SUPPLEMENTAL MEMORANDUM ON MOTIONS FOR REHEARING
BLACKMAR, Judge.
Both parties have filed motions for rehearing. It is unusual for the winning party to do so, but I can understand the confusion because of the Court's stubborn insistence on the dicta contained in the first paragraph of Part II. I am sure that lawyers and judges will likewise be confused by this paragraph, which pronounces a part of the decree void but then proceeds to give it effect. The authority of the case, however, is determined by the result and not by unnecessary pronouncements. The opinion, then, sustains the exercise of equitable jurisdiction.
NOTES
[1] Appellant's motion for leave to file exhibits, filed after oral argument and ordered taken with the case, is sustained.
[2] The proposition put before the subdivision's property owners read as follows:
The restrictions applying to Lake Tishomingo Subdivision of Jefferson County, Missouri, said subdivision being as shown in Plat Book 9 at Page 61 of the Jefferson County Land Records, are amended by adding thereto: "The Board of Directors of Lake Tishomingo Property Owners Association are authorized to make a special assessment of Two Dollars and sixty cents ($2.60) per front foot to be levied by the said Lake Tishomingo Property Owners Association upon the owner or owners of each Lot in said subdivision which is subject to the annual maintenance assessment provided however that each lot shall, in making said assessments, be considered as having not less than fifty (50) front feet nor more than one hundred (100) front feet; special assessment to be made on or about August 1, 1976, and one time only, which special assessments shall be in addition to the annual assessment for maintenance and upkeep and said special assessments herein referred to shall be a lien and shall be collected in all manner as though they were the annual assessments for upkeep and maintenance and the funds obtained by said special assessments are to be expended by the Lake Tishomingo Property Owners Association for the purpose of cleaning Lake Tishomingo of silt, weeds and other debris; by mudcat dredge equipment leased as per Engineers Report on the Lake Study.
[3] We were informed of the death of Mr. Klein while this appeal was pending before us.
[4] The provision in question reads as follows:
As a part of the consideration for the sale of this lot, GRANTOR shall have the right to assess the owner of this lot after August 1, 1949, and each succeeding August 1st thereafter, such sum as GRANTOR shall deem necessary for the upkeep and maintenance of the Dam, Roads, and other improvements, provided, however, that no assessment for any one year shall exceed the sum of fifty-five cents (55¢) per front foot, and further provided that the assessment as levied each year shall be and become a lien without filing of suit or legal procedure to establish such lien on said lot if not paid within thirty days after August 1st of the year in which the assessment is made.
[5] The parties intervened after receiving notice of a proposed settlement negotiated by the class representatives and LDE. Three of the intervenors were individual property owners; the fourth claimed to represent a group of 200 property owners.
[6] The applicable venue statutes place jurisdiction over the case with the Circuit Court of Jefferson County whether the suit is characterized as seeking appointment of a successor trustee or reformation of a deed. See § 456.190; § 508.030, RSMo 1978.
[7] The original indenture authorized the extension of the covenants for a period not exceeding twenty-five years upon agreement of the owners of a majority of the front feet in the subdivision. Clearly a majority have so agreed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645016/ | 994 So. 2d 310 (2008)
FREY
v.
STATE.
No. 2D08-2512.
District Court of Appeal of Florida, Second District.
November 7, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540600/ | 213 B.R. 721 (1997)
In re Victor E. CRIVILARE and Mary E. Crivilare, Debtors.
In re Daniel D. GREGORY, Debtor.
In re Shawn WOLFF and Nicole Wolff, Debtors.
Bankruptcy Nos. 97-60518, 97-60519 and 97-60582.
United States Bankruptcy Court, S.D. Illinois.
October 9, 1997.
*722 J. Phil Anderson, U.S. Trustee's Office, Peoria, IL, for Plaintiff, U.S. Trustee.
Steven Diamond, Brian Driscoll, Geraci Law Firm, Chicago, IL, for Debtors.
OPINION
KENNETH J. MEYERS, Bankruptcy Judge.
These cases, consolidated for purposes of opinion, are before the Court on motions for order to show cause filed by the United States Trustee ("trustee"). The trustee challenges the reasonableness of fees charged by debtors' counsel, Peter F. Geraci, for his services in each of these Chapter 7 cases. The trustee requests the Court to order disgorgement of that portion of counsel's fees found to be excessive under 11 U.S.C. § 329.[1]
The cases at issue are routine, simple, no-asset Chapter 7 proceedings. The debtors' schedules in each case show no real property, personal property of less than $14,000, and total debts of $50,000 or less. While not yet accomplished, the debtors in each case have stated an intention to reaffirm some or all of their secured debt. The fees charged and paid by the debtors in these cases vary from $895 in Wolff, to $1,000 in Gregory, and $1,100 in Crivilare.
Debtors' counsel has filed a time itemization for each case prepared by David M. Ucherek.[2] The affidavit accompanying these "itemizations" attests that Mr. Ucherek reconstructed *723 the services performed and estimated the time of the tasks involved. The itemizations contain entries for work performed by attorneys in Geraci's firm, as well as work performed by "Clerk."
The trustee counters with a summary of nineteen consecutively filed bankruptcy cases in the Southern District of Illinois.[3] The average charge for these Chapter 7 cases is slightly more than $500. From this, the trustee argues that the fees charged by debtors' counsel in the Wolff, Gregory, and Crivilare cases are excessive, as they grossly exceed the average fee charged in this district for Chapter 7 cases.
Responding to the trustee's motion, debtors' counsel maintains that the fees in the present cases are justified by the superior services provided by attorneys in the Geraci firm. In addition, counsel asserts that without an itemization of services in the nineteen cases submitted by the trustee, a fair comparison cannot be made.
At hearing, the Court queried debtors' counsel concerning the Geraci firm's purported "superior" representation in these cases. Counsel was unable to identify any services performed for the debtors that are not routinely performed by attorneys in other Chapter 7 cases of this type. Although debtors' counsel asserted that, unlike other attorneys, attorneys in the Geraci firm are constantly available to their clients, counsel was unable to substantiate this broad generalization. Counsel also suggested that the Geraci firm's services are superior in that "all" bankruptcy petitions are prepared by an attorney, rather than by a paralegal or other type of office assistant. This statement, however, is belied by counsel's own itemization of services in the Gregory case, where it specifically states that "Clerk," not an attorney,
[d]rafted petition, reviewed for accuracy, mailed to client for signatures with request for filing fee and request for missing information.
For these reasons, the Court finds counsel's argument concerning the purported superiority of services to be without merit and rejects it as a basis for the fees charged in these cases.[4]
In evaluating the reasonableness of fees sought pursuant to § 329, a court must consider: (1) whether the services for which the fees were charged are properly compensable as legal services, (2) if so, whether performance of the services was necessary and whether the fees are adequately documented, and (3) whether the services were performed within a reasonable time and for a reasonable rate based on the attorney's training and experience. See In re Chellino, 209 B.R. 106, 113 (Bankr.C.D.Ill.1996), aff'd sub nom. Geraci v. Hopper, 208 B.R. 907 (C.D.Ill. 1997), citing In re Wiedau's, Inc., 78 B.R. 904 (Bankr.S.D.Ill.1987). In order to support a fee request, counsel must submit a time itemization that lists each activity, its date, the attorney who performed the work, a description of the nature and substance of the work performed, and the time spent on the work. Id. at 114. Time entries for telephone calls, conferences, and letters must state the purpose or nature of the service and the persons involved. Each type of service must be listed separately with the corresponding specific time allotment. In addition, the time expended must be reasonable in light of the results obtained. Id.
Examination of the time itemizations in these cases reveals that none of them even remotely comply with the standards set forth above. Many of the time entries do not *724 sufficiently describe the service being performed, such as entries for "docket call, American General Finance," which are vague and ambiguous.[5] In addition, many of the services are lumped together so that the Court is unable to determine the amount of time spent on each individual service. Time entries in either of these two categories cannot form the basis for the compensation requested. The fee itemizations further show time billed at $75 per hour for "Clerk" time. At hearing, debtors' counsel conceded that none of the individuals designated as "Clerk" are qualified as paralegals, for which such billing might be allowable. Thus, the Court must conclude that itemizations for "Clerk" time are noncompensable billing of overhead by debtors' counsel, which is forbidden in the Code and supporting case law. See id.
Perhaps the most troubling aspect of the time itemizations submitted by counsel in these cases is that they are merely "estimates" of time spent by debtors' counsel "based upon [Mr. Ucherek's] performance of similar tasks." Affidavit of David M. Ucherek, filed Aug. 12, 1997, par. 4. The Court was initially sympathetic to counsel's attempted reconstruction of the itemizations here, thinking that perhaps counsel was caught unaware by the trustee's objection to the fees charged and that these reconstructed time records were counsel's best effort to show compliance with the requirements of § 329. However, upon closer examination of the time periods involved, the Court concludes that this sympathy was misplaced. Prior litigation in the Central District of Illinois concerning the reasonableness of fees charged by the Geraci firm should have alerted counsel to the probability that their fees would be challenged in other no-asset Chapter 7 cases such as those at bar. See In re Chellino, 209 B.R. 106 (C.D.Ill. 1996) (Fines, J.); In re Day, BK No. 96-72774 (C.D.Ill. March 6, 1997) (Lessen, J.); In re Michaelson, BK No. 96-83059 (C.D.Ill. July 31, 1997) (Altenberger, J.). In each of the Central District cases, the court emphasized the necessity of maintaining written time itemizations detailing the services rendered and the value of those services to substantiate the reasonableness of fees requested under § 329. Judge Fines' opinion in Chellino was entered in December 1996, well in advance of the filing of the petitions here and, indeed, two months before counsel's initial consultation with the debtors in Gregory and Wolff. While the initial consultation in Crivilare predated Judge Fines' ruling, it occurred after the filing and argument of the trustee's motion challenging the Geraci firm's fees and after Judge Fines issued an order directing counsel to submit "`detailed written fee itemization[s] setting forth the services for which counsel requests compensation.'" Chellino, 209 B.R. at 109.
As a result of the litigation in the Central District, counsel in the Geraci firm should have taken steps to maintain detailed time itemizations to substantiate their fees in similar Chapter 7 cases. However, even with this prior warning, counsel neglected to keep such records and failed to submit actual itemizations to the Court in the present cases. For this reason, the Court will exercise no leniency in reviewing the time itemizations here but will hold counsel to the established standards set forth and applied by the courts in the Central District cases.
The Court has taken a random sample of fees charged in 137 Chapter 7 cases filed in this district. The average fee in those cases, which include both asset and no-asset cases,[6] is $521. Because of the burgeoning caseload *725 placed upon this Court, it is impossible to review each fee application. The Court, therefore, finds it necessary to set a fee which it believes to be presumptively reasonable in no-asset Chapter 7 cases. The fee this Court has determined to be presumptively reasonable is $700, an amount well in excess of the average fee in both no-asset and asset cases in this district. Therefore, in no-asset Chapter 7 cases in this district, the Court will not review fees of $700 or less to determine their reasonableness.
The Court's determination of a presumptively reasonable fee does not mean that counsel who devote additional time cannot be compensated in excess of $700. However, in such instances, the burden is on counsel to substantiate the reasonableness of their requested fee by submitting written time records for the Court's review. In the cases before the Court, debtors' counsel has failed to submit actual time records showing services performed for the debtors. Even if the Court were to accept the "estimates" provided instead, the itemizations are either nonallowable on their face, such as entries for "Clerk" time, or insufficient, because of "lumping" of services or failure to clearly describe the service rendered, for the Court to make a reasoned determination concerning the reasonableness of the fees charged. Quite simply, the burden is on counsel to substantiate the reasonableness of fees requested, and, in the present cases, counsel has failed to sustain that burden. Therefore, counsel's fees in the present cases will be limited to $700 per case.[7]
For the reasons stated, counsel shall disgorge to the debtors that portion of the fee that exceeds $700 in each of the three cases before the Court. Counsel shall do so within ten (10) days and shall file with the Court proof of compliance with the Court's order.
NOTES
[1] Section 329 provides in pertinent part:
(a) Any attorney representing a debtor in a case under this title . . . shall file with the court a statement of the compensation paid or agreed to be paid . . . for services rendered or to be rendered . . . by such attorney, and the source of such compensation.
(b) If such compensation exceeds the reasonable value of any such services, the court may . . . order the return of any such payment, to the extent excessive, to [either the estate or the entity that made such payment].
11 U.S.C. § 329 (emphasis added).
[2] The affidavits fail to disclose whether Mr. Ucherek is a licensed attorney and also fail to indicate his role or position in the Geraci firm.
[3] Two of the cases, No. 97-60478 and No. 97-60484, were discarded from the sample because one was a Chapter 13 case and the other was provided by a petition preparer.
[4] An examination of the debtors' schedules causes the Court to doubt even the adequacy of counsel's representation in these cases. Specifically, in Gregory, the debtor's discharge has been entered without the two reaffirmation agreements referred to in his statement of intent having been filed. In Wolff, one of the reaffirmation agreements filed by the debtors refers to property, a Kawasaki motorcycle, not listed in their schedules. Finally, while the debtors in Crivilare list five creditors with whom they propose to reaffirm, their statement of intent fails to include the only creditor, Mercury Finance, with whom they have actually filed a reaffirmation agreement, and the subject property, a 1989 Ford Mustang, is scheduled as securing a loan with Ford Motor Credit, while Mercury Finance's collateral is listed as "furniture."
[5] At hearing, counsel explained that this entry referred to time spent fielding calls from creditors who had been told that the debtors were contemplating bankruptcy. While counsel asserted that this "service" helped relieve pressure on their clients from creditors who were pressing them for payment, the Court notes that the greatest majority of such calls were taken during the extended period before filing of the debtors' bankruptcy petition, while counsel waited for the debtors to complete payment of counsel's fee. In Crivilare, for example, over eight months elapsed between the debtors' first consultation with counsel and the filing of their petition, during which time there were thirteen "docket calls" with creditors. The Court questions both the value of this purported service to the debtors as well as counsel's good faith in delaying the filing of the debtors' petition for counsel's own benefit.
[6] Asset cases would skew the average fee on the high side because such cases would normally result in higher attorney fees being charged.
[7] The Court believes counsel has even failed to support entitlement to $700. However, because counsel could have received this amount without having submitted written time itemizations, the Court will allow the $700 fee. This is not to say that in the future, should counsel continue to charge excessive fees without substantiation, the Court will feel bound by this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1540602/ | 213 B.R. 401 (1997)
In re LYKES BROS. STEAMSHIP CO., INC., Debtor.
No. 95-10453-8P1.
United States Bankruptcy Court, M.D. Florida.
August 29, 1997.
Harley Riedel, Tampa, FL, for debtor.
Larry Foyle, Tampa, FL, for Otero.
Mindy A. Mora, Paul S. Singerman, Miami, FL, Official Unsecured Creditors' Committee Counsel.
U.S. Trustee, Tampa, FL.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT ON DEBTOR'S OBJECTION TO MOTION FOR ALLOWANCE OF CLAIM OR ADMINISTRATIVE EXPENSE
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a confirmed Chapter 11 case and the matters under consideration are Motions for Summary Judgment filed by Lykes Bros. Steamship Co., Inc. and Carmen Otero (Otero), respectively. The Motions are filed in a contested matter presented for this Court's consideration by the Debtor's Objection to the Motion for Allowance of Claim or Administrative Expense filed by Carmen Otero. Both the Debtor and Otero contend that the facts relevant to the resolution of the matter under consideration, that is the allowability of the claims filed by Otero, are without dispute. Each, however, takes the position that based on those undisputed facts, each is entitled to a judgment in its respective favor as a matter of law.
On April 21, 1997, Otero filed a Motion for Allowance of Claim or Administrative Expense and a Proof of Claim, asserting an unsecured priority claim in the amount of $23,034.50. The facts as set forth in the Motion filed by Otero are indeed without dispute and can be summarized as follows:
*402 Otero is a citizen of Peru who was employed by the Debtor in its Peruvian offices from 1979 to January 15, 1996. Otero's employment was terminated post-petition. Under Peruvian law, Otero was entitled to receive upon termination of her employment, an amount equal to one month's salary for each year of employment. Otero claims that under Peruvian her seventeen years of employment entitles her to severance pay in the amount of $23,034.50 in U.S. currency and this amount should be classified in whole or in part as a priority claim either under 11 U.S.C. § 507(a)(4) as an "employment benefit" claim, or under 11 U.S.C. § 507(a)(3) as severance pay or wages. Otero also contends that to the extent wages were earned by her post-petition, they are entitled to be recognized as an administrative expense priority pursuant to 11 U.S.C. § 503(b).
In opposition, the Debtor contends that the majority of Otero's claim must be classified as a general unsecured claim. Specifically, the Debtor contends that of 204 months, i.e. seventeen years, during which time Otero was employed by the Debtor, only about three months of her employment took place after the commencement of the Chapter 11 case. In addition, the Debtor contends that only ninety days of employment occurred within the priority period of 11 U.S.C. § 507(a)(3).
Based on the foregoing, the Debtor maintains that (1) the portion of the severance pay earned postpetition is entitled to be treated as an administrative claim under 11 U.S.C. § 503(b) in the amount of $338.62; (2) those wages earned three months prior to the bankruptcy would be entitled to be a priority wage claim pursuant to 11 U.S.C. § 507(a)(3) in the amount of $338.62; and (3) the balance of Otero's claim should be allowed but treated only as a general unsecured claim in the amount of $22,557.26.
The issue of the allowability of severance pay as a cost of administration, thus a first priority in payment pursuant to 11 U.S.C. § 503(b) has been extensively litigated. Such claims have not been treated uniformly by those circuits that considered the issue. Notably, the Second Circuit Court of Appeals, in considering this issue, concluded that an obligation to pay severance pay, arising out of the post-petition termination of an employee, constitutes a cost of doing business and as such is an administrative expense entitled to priority. See In re Spectrum Information Technologies, Inc., 193 B.R. 400 (Bankr.E.D.N.Y.1996) (citing cases decided under the Bankruptcy Act of 1898); See Straus-Duparquet, Inc. v. Local Union No. 3 Intern. Broth. of Elec. Workers, 386 F.2d 649 (2d Cir.1967); Trustees of Amalgamated Ins. Fund v. McFarlin's, Inc., 789 F.2d 98 (2d Cir.1986). The majority of the circuits, however, hold that severance pay based on the length of employment accrues over the entire period of employment and thus is not entitled to priority as a cost of administration. In re Rawson Food Services, Inc. v. Creditors' Committee, 67 B.R. 351, 353 (M.D.Fla.1986). This view is supported by the rules generally governing administrative claims and is more consistent with sound public policy. In re Roth American, Inc., 975 F.2d 949 (3rd Cir.1992); In re Health Maintenance Foundation, 680 F.2d 619 (9th Cir.1982); In re Mammoth Mart, Inc., 536 F.2d 950 (1st Cir.1976); In re Public Ledger, 161 F.2d 762 (3rd Cir.1947).
According to the Debtor, the rational of these decisions has been adopted by at least two circuits albeit in a slightly different factual setting. See In re Amarex, 853 F.2d 1526 (10th Cir.1988); In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984). The Debtor points out that the reasoning and conclusions of both the District Court and the Bankruptcy Court in Rawson Food Services, supra and In re Rawson Food Services, Inc., 61 B.R. 207 (Bankr.M.D.Fla.1986) support its position. There, both the Bankruptcy Court and District Court disallowed administrative priority to employee claims for severance pay where all parties understood that it was the prepetition services which had earned the severance benefits. Since the prepetition services were not performed for the debtor-in-possession and were not beneficial to the estate, the severance benefits arising from these services were not entitled to priority payment as an administrative expense. Id., 61 B.R. at 209.
*403 Even in the Second Circuit there is some doubt whether the rule first announced in Straus-Duparquet is still binding under the Code. For instance, in the Southern District of New York, the Bankruptcy Court denied administrative expense priority for severance benefits based on years of service. In re Hooker Investments, Inc., 145 B.R. 138 (Bankr.S.D.N.Y.1992); In re Drexel Burnham Lambert Group, Inc., 138 B.R. 687 (Bankr.S.D.N.Y.1992). As pointed out by Judge Abram in Hooker, the Second Circuit in Amalgamated Insurance Fund, supra held that when severance pay represents compensation for an employee's past services, it is not an administrative expense entitled to priority. This Court is aware that in the Eastern District of New York, Chief Judge Duberstein in Spectrum Information Technologies, supra relied upon Amalgamated Insurance Fund's refusal to expressly disavow Straus-Duparquet as evidence that the rule still applied.
The Eleventh Circuit has not had occasion to rule on this precise issue; yet, there is hardly any doubt that the Eleventh Circuit would espouse the general proposition that statutory priorities shall be narrowly construed to foster the presumption that the limited resources of the Debtor should be equally distributed among creditors. As noted in the case of Amalgamated Insurance Fund, supra,
. . . [A]n expense is administrative only if it arises out of a transaction between the creditor and the bankrupt's trustee or debtor in possession and `only to the extent that the consideration supporting the claimant's right to payment was both supplied to and beneficial to the debtor in possession in the operation of the business.' . . . A debt is not entitled to priority simply because the right to payment arises after the debtor-in-possession has begun managing the estate.
Id., 789 F.2d at 101 (citations omitted); See also, In re Templeton, 154 B.R. 930, 934 (Bankr.W.D.Tex.1993). As stated in Mammoth Mart, supra,
. . . [i]f one claimant is to be preferred over others, the purpose should be clear from the statute . . . To give priority to a claimant not clearly entitled thereto is not only inconsistent with the policy of equality of distribution, it dilutes the value of the priority for those creditors Congress intended to prefer.
(citations omitted).
Considering the foregoing, this Court is satisfied that based on the undisputed facts the Debtor is entitled to an order granting its Motion for Summary Judgment.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Debtor's Motion for Summary Judgment be, and the same is hereby, granted. It is further
ORDERED, ADJUDGED AND DECREED that Otero's Motion for Allowance of Claim or Administrative Expense be, and the same is hereby, granted in the amount of $338.62. It is further
ORDERED, ADJUDGED AND DECREED that Otero's Motion for Allowance of Claim or Administrative Expense to the extent that it seeks a priority under 11 U.S.C. § 507(a)(3) be, and the same is hereby, granted in the amount of $338.62. It is further
ORDERED, ADJUDGED AND DECREED that the balance of Otero's claim in the amount of $22,357.26 be, and the same is hereby, allowed as a general unsecured claim. It is further
ORDERED, ADJUDGED AND DECREED that Otero's Motion for Summary Judgment be, and the same is hereby, denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563697/ | 960 A.2d 839 (2008)
COM.
v.
PETERSON.
No. 345 WAL (2008).
Supreme Court of Pennsylvania.
November 5, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/805660/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGER MARK SCOTT, No. 11-99002
Petitioner-Appellant,
v. D.C. No.
2:97-cv-01554-PGR
CHARLES L. RYAN,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted
November 17, 2011—Stanford, California
Filed August 1, 2012
Before: Alex Kozinski, Chief Judge, Jerome Farris and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
8527
SCOTT v. RYAN 8529
COUNSEL
Michael L. Burke, Esq., Jennifer Yolanda Garcia, Esq., Assis-
tant Federal Public Defenders, Federal Public Defender’s
Office, Phoenix, Arizona, for appellant Scott.
Susanne Bartlett Blomo, Esq., Arizona Attorney General’s
Office, Phoenix, Arizona, for appellee Ryan.
OPINION
PER CURIAM:
Roger Scott, an Arizona state prisoner sentenced to death,
appeals the denial of his petition for a writ of habeas corpus
in federal district court. We have jurisdiction pursuant to 28
U.S.C. §§ 1291, 2253, and we affirm.
On remand to the district court from a prior decision of this
court, Scott was allowed to present several pieces of evidence
he contended his counsel was ineffective for not presenting at
his original sentencing hearing. Scott presented evidence that
he had suffered four head injuries, and that these injuries
affected his mental functions at the time of the murder. Scott
seeks a remand to state court for a new sentencing hearing.
We hold that the district court did not abuse its discretion in
finding that Scott was not prejudiced by his counsel’s failure
to submit this additional evidence. We express no opinion as
to whether counsel’s performance at sentencing was deficient.
I. Facts
Scott does not challenge the sufficiency of the evidence to
support his conviction; he challenges only his sentence on the
ground of ineffective assistance of counsel. Accordingly, we
rely on the facts found in the Arizona Supreme Court’s opin-
8530 SCOTT v. RYAN
ion. State v. Scott, 865 P.2d 792, 795-96 (Ariz. 1993). We
recite the facts only as necessary to explain our decision.
This case stems from the premeditated murder of a four-
year-old named Christopher Milke. Christopher’s mother,
Debra Milke, her roommate James Styers, and Styers’s friend,
Roger Scott, were each tried separately for first-degree mur-
der, conspiracy to commit murder, and kidnapping.
Scott gave a full confession to the police of his own role in
the planning and execution of the kidnapping and murder. He
confessed he drove with Styers and Christopher out into the
desert, where Styers shot Christopher. He led the police to
Christopher’s body, the firearm used to kill Christopher
(which was in Scott’s closet), and a pair of bloody shoes worn
by Styers when he shot Christopher.
After a jury trial, Scott was found guilty of first-degree
murder, conspiracy to commit murder, and kidnapping. At the
sentencing hearing, Scott’s attorney, Roland Steinle, did not
present any evidence about head injuries Scott had suffered
prior to the crime. Scott received the death penalty. Scott’s
conviction and sentence were affirmed on direct appeal to the
Arizona Supreme Court. State v. Scott, 865 P.2d at 806.
Scott’s petition for post-conviction relief was then denied, as
was his petition for review by the Arizona Supreme Court
Scott then filed a petition for writ of habeas corpus in fed-
eral court. The district court dismissed a number of claims as
procedurally barred and dismissed Scott’s remaining ineffec-
tive assistance of counsel claims on the merits.
We reversed and remanded to the district court for it to
hold an evidentiary hearing and to rule on the merits of
Scott’s habeas petition.
At the federal evidentiary hearing, Scott presented new evi-
dence concerning his brain damage and contended his counsel
SCOTT v. RYAN 8531
was ineffective for not presenting it earlier. Among this evi-
dence were the reports and testimony from neurologist
Thomas Hyde and neuropsychologist Tora Brawley, both of
whom were defense witnesses.
Dr. Hyde found that Scott “has multiple neurological defi-
cits that within a reasonable degree of medical certainty”
existed at the time of the crime in 1989. In particular, Hyde
found evidence of (1) frontal lobe dysfunction; (2) chronic
cerebellum damage, most likely secondary to alcohol abuse;
and (3) a history of seizures consistent with brain dysfunction
either from closed head injury, chronic alcohol abuse, or both.
In addition to his examination of Scott, Dr. Hyde reviewed
medical records that preexisted the crime in this case and that
could have been easily obtained by Scott’s trial counsel,
Roland Steinle, had he attempted to do so.
Among these records were reports of two CT scans per-
formed on Scott in 1987 and 1988. Both of these CT scans
revealed atrophy of Scott’s brain that was unusual for a per-
son his age. Scott had told Steinle that he had suffered “brain
shrinkage” as a result of numerous head injuries, including a
bicycle accident in the seventh grade with a car, two motorcy-
cle accidents, and a car accident—all of which rendered Scott
unconscious.
Dr. Hyde opined that Scott’s neurological deficits would
have had a significant impact on his behavior. He observed
that, “[p]articularly the cognitive deficits, the frontal lobe dys-
function would affect his judgment, reasoning, problem solv-
ing, behavior under stress, his decision making.”
Dr. Brawley and a forensic psychiatrist working at his
direction concluded Scott has an IQ of 88, which falls in the
low-average range. The testing also revealed deficits in
Scott’s executive decision making and frontal lobe function-
ing. Dr. Brawley observed, “[p]atients with frontal lobe dys-
function often exhibit poor judgment, difficult problem
8532 SCOTT v. RYAN
solving due to an inability to explore options (decreased cog-
nitive flexibility), poor sequencing ability, and problems fully
comprehending consequences of behavior.”
The state’s experts—Dr. Harry Tamm, a neurologist, and
Dr. James Seward, a neuropsychologist—did not dispute the
findings of Drs. Hyde and Brawley as to Scott’s current con-
dition. They disagreed with the defense experts as to whether
the neurological and neuropsychological deficits from which
Scott suffers were present in 1989 when he committed the
crimes.
Following post-hearing briefing, the district court issued an
order denying Scott all relief, holding that Steinle’s failure to
investigate the evidence of Scott’s brain injuries was not inef-
fective assistance of counsel, and that even if it was, Scott
was not prejudiced by it. Scott v. Ryan, No. CV-97-1554-
PHX-PGR, 2011 WL 240746, at *24-25 (D. Ariz. Jan. 24,
2011).
II. Standard of Review
Where, as here, there is no state court decision on the mer-
its, the district court reviews the merits de novo. See Pirtle v.
Morgan, 313 F.3d 1160, 1167-68 & n.4 (9th Cir. 2002); Cone
v. Bell, 556 U.S. 449, 466-67, 472 (2009). Here, Pirtle applies
because, although the claims were presented to the state post-
conviction court, that court dismissed the claims on purely
procedural grounds. We held that dismissal was erroneous.
Scott v. Schriro, 567 F.3d 573, 581 (9th Cir. 2009) (per
curiam).
In reviewing an ineffective assistance of counsel claim, the
district court is bound by Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, counsel is ineffective if: (1)
“representation fell below an objective standard of reason-
ableness” and (2) “there is a reasonable probability that, but
SCOTT v. RYAN 8533
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different.” Id. at 688, 694.
In an appeal of a death sentence, “we must [assess preju-
dice by] compar[ing] the evidence that actually was presented
to the [court] with the evidence that might have been pre-
sented had counsel acted differently,” Lambright v. Schriro,
490 F.3d 1103, 1121 (9th Cir. 2007) (per curiam) (internal
quotation marks omitted), and determine whether “absent the
errors, the sentencer . . . would have concluded that the bal-
ance of aggravating and mitigating circumstances did not war-
rant death.” Strickland, 466 U.S. at 695.
We in turn review the district court’s legal holdings de
novo and its factual findings for abuse of discretion to see if
those findings are “illogical, implausible, or without support
in inferences that may be drawn from the facts in the record.”
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009)
(en banc), cert. denied, 131 S. Ct. 2096 (2011).
III. Scott Was Not Prejudiced by Steinle’s Failure to
Present Further Mitigating Evidence.
[1] At trial, Steinle’s theory of defense was that Scott was
an unwitting “dupe” with a personality disorder that made
him easily manipulated by Styers and Debra Milke. Because
the evidence provided through Scott’s confession demon-
strated he did not act in an impulsive way and that in fact he
helped carefully to plan the murder, evidence of a brain injury
would not have helped his defense. We find that Scott was not
prejudiced by Steinle’s decision not to investigate Scott’s
head injuries further and need not decide in this case whether
that decision constituted deficient performance.
On remand, the district court allowed Scott to present the
new evidence of his head injuries that he wants to present to
the state court in a new sentencing hearing. After considering
this evidence, the district court held:
8534 SCOTT v. RYAN
Based on its review of this information, considered
in the light of the new evidence concerning Petition-
er’s current neurological status, the Court concludes
that Petitioner has not met his burden of proving that
he was prejudiced by Steinle’s performance at sen-
tencing . . . . Assuming evidence existed at the time
to support a finding that Petitioner suffered from
[cognitive] defects, Petitioner has not established
that a mitigation case based on that evidence would
have been more persuasive than the theory Steinle
did present at sentencing.
Scott v. Ryan, 2011 WL 240746, at *25.
[2] The record supports the district court’s finding that
Scott was not prejudiced by Steinle’s failure to investigate his
head injuries further. Scott’s confession revealed he was an
active participant in the planning, preparation, execution, and
cover-up of the crime, and that he was able to appreciate the
wrongful nature of his crime.
Scott gave a taped interview to Detective Mills, detailing
the events leading up to, resulting in, and attempting to cover
up the murder of Christopher. Detective Mills started the
interview by asking Scott if Detective Saldate had informed
him of his Miranda rights. Detective Mills then proceeded to
reiterate the Miranda warnings. Scott admitted he came to the
police station voluntarily and he had been treated pretty well,
without any physical abuse or force.
Scott explained that he, Jim Styers, and Debra Milke all
discussed murdering Debra’s four-year-old son, Christopher.
Scott was promised $250 by Styers, which was to come from
a life insurance policy Debra had on Christopher through her
work. Scott stated that at first Styers and Debra Milke offered
to pay him $150, and then the price went up to $250. The sen-
tencing judge was entitled to infer from this evidence that
Scott bargained for the increase in payment.
SCOTT v. RYAN 8535
Even more telling of Scott’s active participation in the mur-
der is the fact that on a prior attempt to kill Christopher, Scott
had decided the location “wasn’t good” and had Styers abort
the plan. This evidence shows that, despite his neurological
deficits, Scott understood that they were planning a crime,
and he took steps to assure they would not get caught.
On the day of the murder, Scott was aware beforehand that
he would aid Styers in killing Christopher. Styers, with Chris-
topher in the car, picked up Scott. After getting food, Styers
drove as far as Sun City before Scott took over driving. Once
near 99th Avenue the three got out of the car. Styers enticed
Christopher into the desert with his binoculars and the sugges-
tion they look for snakes, while Scott drove on. When Scott
was North of the wash he heard three evenly separated gun
shots. From there, he turned the car around, picked up Styers
and drove toward the Metrocenter Mall as they had planned.
Between 99th Avenue and 83rd Avenue, Styers threw gun
casings out of the passenger-side window.
Upon arriving at the Mall, Scott and Styers split up. They
then pretended to meet for the first time that day when Styers
brought a Sears’ employee to Scott. Styers had told the
employee that Christopher had gone missing at Sears, and she
was helping to look for him. Scott then said he had arrived at
the mall with his friend “Phil,” who did not exist. Also while
at the Mall, Scott disposed of Styers’s blood-stained shoes
between some bushes north of Sears. The gun Styers had
given him remained with Scott on his bus ride back home and
was in Scott’s closet at the time of the interview.
[3] The new evidence that Scott had brain damage does not
explain his actions in this case and is insufficient to overcome
their egregious nature: helping plan the murder; recommend-
ing that there was too much traffic in one place to commit the
murder and that they should relocate to a more remote area;
negotiating over his fee for participating in the murder; and
attempting to cover up the murder by hiding Styers’s shoes
8536 SCOTT v. RYAN
and the murder weapon and by going along with Styers’s
story that Christopher had disappeared at the mall. We cannot
say that Scott was prejudiced by Steinle’s tactical decision.
Even considering the totality of mitigation evidence that
Scott introduced at the district court on remand—evidence of
his head injuries, brain shrinkage, and seizures; evidence that
the State once offered him a plea bargain to testify against
Styers and Debra Milke; and evidence that the victim’s father,
Mark Milke, thought the trial court should show Scott
leniency—we cannot say it would have made any difference
in the outcome. Accordingly, Scott was not prejudiced by
Steinle’s failure to present it at sentencing.
Finally, we decline to expand the certificate of appeala-
bility. It is clear from the record that Scott’s counsel did not
render ineffective assistance of counsel in his challenge to
Scott’s confession for all the reasons aptly stated in the dis-
trict court’s opinion. Scott v. Ryan, 2011 WL 240746, at *4.
The district court’s order denying Scott’s petition for writ
of habeas corpus is therefore affirmed.1
AFFIRMED.
1
Scott’s motion for a remand pursuant to Martinez v. Ryan, 132 S. Ct.
1309 (2012), is denied. Scott was already given a remand by our first
opinion and on remand he had an opportunity to present all the new evi-
dence he thought relevant to the district court, although none had been
presented to the state post-conviction court. The State’s motion to strike
Scott’s motion for a remand is denied as moot. | 01-03-2023 | 08-01-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2459881/ | 253 P.3d 798 (2011)
STATE
v.
MARROQUIN.
No. 104841.
Court of Appeals of Kansas.
July 1, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459883/ | 250 P.3d 992 (2011)
241 Or. App. 723
BROWN
v.
MILLS.
A142792
Court of Appeals of Oregon.
March 30, 2011.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304511/ | FAW, P. J.
The plaintiff below, Miss Lou Saucier, is the plaintiff in error here. In this opinion, the parties will he called plaintiff *213and defendant, respectively, as they appeared on the record in the trial eonrt.
Plaintiff brought this suit in the Third circuit court of Davidson county, on April 29, 1925, and thereafter filed a declaration in four counts, the first count being in these words:
“Plaintiff, Miss Lou Saucier, who sues by her next friend, Charles S. Pendleton, sues the defendant, Martin S. Roberts, Jr., for five thousand ($5000) dollars damages and for cause of action alleges:
“That on or about November 22, 1924, at about 10:30 o’clock, P. M., while plaintiff, who had just alighted from a street car, accompanied by a young lady friend, was undertaking to: cross Twenty-first avenue, south, from the west side of the street to the east side at or near the point where Dixie Place intersects with said Twenty-first avenue, south, and while plaintiff was using all due care and caution for her own safety, a Buick sedan automobile belonging to defendant and being operated at the time by defendant’s minor son, Martin S. Roberts, III, with the consent and on the business of defendant, as defendant’s agent, was negligently and recklessly driven in a northerly direction into and against plaintiff while she was crossing said street, as she had a right to do, and while she was in the exercise of due care and caution for her own safety, as above stated.
“Plaintiff avers that at the time said automobile was being driven at a reckless, unlawful and excessive rate of speed, and although the defendant’s said agent, with the exercise of ordinary care could have brought his ear to a stop in time to prevent the collision, he negligently, carelessly and recklessly failed to keep the automobile under such control, with the result that plaintiff, who was entitled to assume that said automobile was being operated in a1'lawful manner and was under the control of defendant’s said son, was struck by the automobile, knocked violently to the ground and dragged for a distance of -feet, so that she was broken, cut and bruised about her head, mouth and other parts of her body and rendered unconscious.
“Plaintiff avers that as the direct result of the reckless, negligent and careless conduct of the defendant-’s agent, four of her front teeth were broken off and crushed, her head and face were badly scarred, her body was painfully bruised and she was forced to lose - days from her studies, and in addition suffered the most excruciating pain and anguish.
“Plaintiff has been advised that her injuries are permanent and that she will be compelled to go through life with her personal appearance marred and her health and comfort seriously impaired.
‘ ‘ She further- avers that because of her injuries she was forced to expend $-for medical, doctors’ and dentist’s bills, all of which she herself was required to pay, since her home is in the State of Louisiana and she is attending school at George Peabody College as a *214boarding- pupil and is limited in funds which she may expend for her education and for her support and maintenance while in attendance upon the college.
"Plaintiff further avers that her father is dead, and that the expenses incident to her education and her support for several years past have been borne by plaintiff herself, who has worked during the time she has been .attending school and whenever plaintiff’s funds have been insufficient, her sister who teaches school has made contribution of funds to plaintiff. Plaintiff therefore charges that in so far as her earnings are concerned she has been emancipated by her mother, and since her expenses incident to the injuries which she received as the result of defendant’s negligence must be paid by plaintiff herself.
"She charges she is entitled to recover said expense in this cause.
"Plaintiff avers that all'of her injuries, suffering and expense were directly and proximately caused by the negligent, wrongful and reckless acts of the defendant’s agent, as aforesaid, and for all of the damages she has suffered she sues the defendant, who has refused to pay, and respectfully demands a jury to try the issues joined and to assess the damages.”
In the second count, plaintiff alleged that the proximate cause of her injuries was the violation by the driver of defendant’s said automobile of City Ordinance No. 928, section 1, which provides that "a vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible.”
In the third count, plaintiff alleged that the proximate cause of her injuries was the violation by the driver of said automobile of City Ordinance No. 292, section 7, as follows: "Section 7. Be it further enacted that it shall be unlawful for any vehicle to exceed a speed of twenty miles per hour within the corporate limits of said city, . . . and provides further, that no vehicle shall exceed a speed of ten miles per hour while within the confines of any safety or school zone of said city.
"Section 2 (f). ‘School zone’ shall be construed to mean that portion of any street, alley, or other highway, of said city contiguous to any school premises in- said city, whether public or private, lying within one hundred feet in any direction from the boundaries of said school premises, or any portion of the streets and alleys, or the highways and thoroughfares of said city, which may now or hereafter be designated by ordinance as such.”
In the fourth count, plaintiff alleges that the negligence of defendant’s agent in driving his car at a dangerous rate of speed and not near the right-hand curb, in violation of the City Ordinances, created a situation constituting an emergency which made it necessary for the plaintiff to act hurriedly and without time for deliberate judgment, *215and tbat in this emergency tbe plaintiff used ordinary care under all tbe circumstances, and while in tbe exercise of ordinary care, tbe plaintiff sustained the injuries set out in tbe first count of tbe declaration as tbe direct and proximate result of defendant’s negligence.
The ease was tried to a jury on tbe issues made by a plea of not guilty filed by tbe defendant to tbe plaintiff’s declaration, and tbe jury found tbe issues in favor of tbe plaintiff and assessed1 her damages at $300. Judgment was entered in favor of tbe plaintiff for $300 and tbe costs of tbe cause; but plaintiff was dissatisfied with tbe amount of damages allowed, and moved for a new trial. Tbe motion for a new trial was overruled, and plaintiff preserved proper exceptions to tbe action of tbe court in overruling her motion for a new trial and prayed an appeal (in error) to tbe Court of Civil Appeals, which was granted by tbe trial court and perfected by plaintiff.
Through tbe first assignment of error it is asserted tbat “tbe damages awarded plaintiff by tbe verdict are so inadequate as to evince passion, prejudice and caprice on tbe part of tbe jury.”'
Tbe plaintiff’s second assignment of error is tbat tbe court erred in refusing to give in charge to tbe jury plaintiff’s request No. 2, which was as follows: “ I charge you tbat a party operating an automobile in violation of tbe statute fixing, tbe speed limit at twenty miles per hour is guilty of wilful misconduct, and tbat if be injures another person while in tbe act of such violation, then tbe plea of contributory negligence is not available to tbe driver of said automobile, and be is responsible for all tbe natural consequences of bis act.”
If it be assumed tbat tbe above-quoted request embodies a correct statement of law applicable to issues presented by tbe pleadings and evidence, tbe refusal of tbe trial judge to give it in charg'e to tbe jury manifestly worked no barm to tbe plaintiff, in so far as the request related to proximate contributory negligence of tbe plaintiff, for tbe reason tbat the jury found all tbe issues touching negligence of the defendant and proximate contributory negligence of tbe plaintiff, in favor of tbe plaintiff. This is a necessary implication from tbe verdict, as tbe jury, was instructed tbat if tbe plaintiff was guilty of negligence which proximately contributed to tbe occurrence of tbe accident, tbe verdict of tbe jury should be for tbe defendant.
But, in our opinion, tbe request does not contain a sound statement of law. It is true tbat contributory negligence of tbe plaintiff is not ordinarily available as a defense to one who acted wilfully and wantonly. If the wrong on tbe part of tbe defendant is so wanton and gross as to imply a willingness to inflict tbe injury, tbe plaintiff may recover, notwithstanding bis own ordinary neglect. 20 R. C. L., pp. 144-145; Fairbanks, Morse & Co. v. Gambill, 142 Tenn., 633, 647.
*216But, merely because a defendant is “operating an automobile in violation of the statute fixing the speed limit at twenty miles per hour,” he is not necessarily guilty of “wilful misconduct” that will preclude him from relying on the proximate contributory negligence of the plaintiff as a defense. Ludke v. Burck (Wis.), 56 L. R. A. (N. S.) 968 and Note; Railway Co. v. Wallace, 90 Tenn., 53, 61-62; Queen v. Dayton Coal & Iron Co., 95 Tenn., 458, 464, 466; Chattanooga Station Co. v. Harper, 138 Tenn., 562, 584; Griffin v. Dickerson, 4 Higgins, 409, 417.
And, in Tennessee, the rule applies alike to violations of State statutes and municipal ordinances. Railway v. Haynes, 112 Tenn., 712, 722; Chattanooga Station Co. v., Harper, supra.
In the case of Ludke v. Burck, supra, the court (speaking with reference to a State statute prescribing a maximum speed limit for running automobiles on city streets) said:
“The law regulates the conduct of persons who are exercising the common right of using public highways as travelers, for the purpose of compelling greater care for the protection and safety of all travelers. The operation of motor vehicles on streets is as lawful a use thereof as that of any other traveler'; and the object of the statute is to restrict this use to such ways as will lessen the dangers to travelers from high speed and other hazardous practices. Such regulations are not intended to abrogate the duties of travelers recognized by the common law for their mutual safety, and leaves them subject to its accepted rules of ordinary care and the duties that spring from their relations as travelers on a public highway. In the light of this relation and the duties arising therefrom, it may well be that a person operating a motor vehicle at a speed much less than that denounced by the statute, on a street crowded with men, women, and children, and thereby inflicting some personal injuries on another, would be guilty of wilfully injuring such person, while another operating such vehicle slightly in excess of the statutory speed might do so under conditions and circumstances as to show that the care exercised, in the light of such conditions and circumstances, did not constitute a wanton and reckless disregard of the rights of another who suffered an injury by colliding with such motor vehicle. This court has held that a violation of the commands of a statute of this class, causing personal injury to another, is not to be treated as a wilful injury, as matter of law, but that the fact of such violation is negligence per se, and that the defense of contributory negligence is not abrogated.”
The rule thus applied by the Wisconsin court to a defendant guilty of violating the statute limiting the speed of automobiles is entirely in harmony with the Tennessee cases cited above, and is, we think, the rule in Tennessee, notwithstanding some expressions to the con*217trary in tbe cases of Driver v. Arn et al., 6 Higgins, 582, 586, and Mason v. Burgess, 8 Higgins, 138, 143.
Tbe only matter of wbicb plaintiff is in a position to complain is tbe amount of tbe verdict. This is a matter which was peculiarly witbin'tbe province of tbe jury.
At tbe time of tbe accident, tbe plaintiff — a young lady seventeen years of age — was a student at Peabody College, and was also employed in a Secretarial capacity at the college. She was knocked down and dragged several feet by defendant’s automobile, and was rendered unconscious for a short' time. A gash was cut in her bead, and her arms and knees were bruised. The injuries above mentioned, however, were temporary, as she was away from her work as a result of tbe accident for only three days. Plaintiff suffered permanent injuries to four of her front teeth. A piece of one front tooth was broken off and there was a crack in each of three other front teeth. There was testimony by a dentist that the crack may cause plaintiff to lose the three cracked teeth in a few years.
The law prescribes no exact standard by which the compensation to be awarded for such injuries shall be measured. “Full compensation is impossible in the abstract, and different individuals will vary in their estimate of tl\e sum which will be a just pecuniary compensation.’’ (8 R. C. L., p. 673, par. 215). Therefore, this court should not attempt to substitute its judgment for that of the jury.
“If there is no rule of law regulating the assessment of damages, and the amount does not depend on computation, the judgment of the jury, and not the opinion of the court, must govern.” 8 R. C. L., pp. 657-658, par. 199; Idem, p. 673, par. 215; Davidson-Benedict Co. v. Severson, 109 Tenn., 572, 616.
In addition to the ascertainment of the nature and extent of plaintiff’s injuries (8 R. C., L., p. 656), and the amount of damages which would compensate plaintiff therefor (8 R. C. L., p. 657), it was the duty of the jury to find whether plaintiff was guilty of any remote contributory negligence, and if so, to reduce her damages accordingly. The trial court charged the jury as follows:
“If you find plaintiff was guilty of some negligence but that this negligence did not directly and proximately cause or contribute to the injury, then this matter must be taken into consideration by you and a reduction must be made from the damages that otherwise you would allow.” This was a proper instruction. Nashville, etc., Railway Co. v. Norman, 108 Tenn., 324, 332; Chattanooga Station Co. v. Harper, 138 Tenn., 562, 581.
It appeared on the trial, without dispute, that plaintiff, after alighting from a street ear, saw defendant’s automobile approaching and attempted to run from the street car track to the sidewalk before the automobile could reach her, but yms struck by the automo*218bile before sbe reached the sidewalk. It was for the jury to say, in the light of all the facts and circumstances appearing in the evidence, whether plaintiff was guilty of any remote contributory negligence, and if so, the extent to which her damages should be reduced on that account.
“It is a general rule that verdicts in personal injury actions will not ordinarily be disturbed merely on account of the smallness of the damages .awarded. But this rule is subject to the exception that a verdict will be set aside and a new.trial granted where the damages awarded are so small .as to induce the conviction that the verdict was the result of passion, prejudice, or partiality; or that the verdict was the result of mistake or oversight on the part of the jury in failing to take into consideration the proper elements of damage in assessing the amount of the recovery; or that the verdict was the result of the failure of the jury to decide the issues submitted to them; or that the verdict was the result of misapprehension on the part of-the jury as to the proof or as to the charge of the court.” Note, 8 Anno. Cas., p. 904, citing .a large number of cases, both Federal and State, and including the Tennessee cases of Chesapeake, etc., Railway Co. v. Higgins, 85 Tenn., 620, 626, and Jenkins v. Hankins, 98 Tenn., 545. See also Note 17 Anno. Cas., pp. 1073-1074.
We find nothing in the record now before us to “induce the conviction” that the verdict in this case falls within any of the exceptions above stated. The plaintiff’s first and second assignments of error are overruled.
There are two other assignments of error. The third assignment is that the court erred in giving in charge to the jury defendant’s special request number 1, as follows: “If you find that the driver of defendant’s automobile was guilty of negligence in the operation of said automobile at the time and place in question, either in driving at an excessive rate of speed, or in failing to bring his car to a stop; and if you also find that the plaintiff was negligent in running across the street immediately in front of defendant’s automobile, when said automobile was in close proximity to her, and if you find from all of the circumstances that both the plaintiff and the defendant were guilty of negligence that contributed proximately to the occurrence of the accident, then your verdict should be for the defendant. ’ ’
The fourth assignment is that the court erred in giving in charge to the jury defendant’s special request number four, as follows: “I charge you that it was the duty of the plaintiff to use ordinary care to look out for approaching automobiles while she was crossing the street, and if she failed to use ordinary care in that respect and such failure contributed proximately to the occurrence of the accident, she cannot recover.”
*219Tbe only references to tbe transcript made in support of tbe third and fourth assignments of error are to tbe pag'es of tbe transcript where tbe plaintiff’s motion for a new trial appears. Tbe motion for a new trial is merely a pleading and cannot be looked to as evidence of what occurred on tbe trial. Richmond, etc., Foundry v. Carter, 133 Tenn., 489, 493; Sherman v. State, 125 Tenn., 19, 49. Aside from tbe averments of tbe motion for a new trial, it does not appear from the record that defendant presented any requests for instructions; but we find tbe instructions, contained in tbe purported requests set forth in the third and fourth assignments, embodied literally in the principal charge of the court to the jury,.
However, these instructions were not erroneous, but stated correct principles of law applicable to the issues before the jury. In fact, the only criticism offered to them here is that they are in conflict with plaintiff’s contention that contributory negligence of the plaintiff was not available to defendant as a defense if defendant’s automobile was being operated at a rate of speed in excess of twenty miles per hour. We have already held (in disposing of the second assignment of error) that this contention is unsound. The third and fourth assignments of error are overruled.
This disposes of all the assignments of error. The judgment of the circuit court is affirmed, and judgment will be entered here in favor of plaintiff and against defendant for $300, and for the costs of the cause accrued in the circuit court. The costs of the appeal will be adjudged against the plaintiff and the sureties on her appeal bond.
Crownover and DeWitt, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4558392/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
04-20-00404-CV
IN RE Aaron Michael COOK
Original Proceeding 1
ORDER
On August 12, 2020, relator filed a petition for writ of mandamus. After considering the
petition and the record, this court concludes relator did not show he is entitled to the relief sought.
Accordingly, the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
It is so ORDERED on August 19, 2020.
_____________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of August, 2020.
_____________________________
Michael A. Cruz, Clerk of Court
1
This proceeding arises out of Cause No. 2019EM501414, styled In the Interest of B.M.C., a Child, pending in the
438th Judicial District Court, Bexar County, Texas. The Honorable Norma Gonzales signed the order at issue in this
original proceeding. | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1563800/ | 960 A.2d 179 (2008)
In re Appeal of Janice BOYER from the decision dated 8/1/07 of the Zoning Hearing Board of Upper Merion Township.
Appeal of Janice Boyer.
No. 415 C.D. 2008
Commonwealth Court of Pennsylvania.
Submitted on Briefs August 29, 2008.
Decided October 22, 2008.
Reargument Denied December 12, 2008.
*180 Rowan Keenan, Collegeville, for appellant.
Joseph J. McGrory, Jr., Lansdale, for appellee.
Kevin A. Palmer, King of Prussia, for intervenor, Allison Green.
BEFORE: McGINLEY, Judge, and COHN JUBELIRER, Judge, and BUTLER, Judge.
OPINION BY Judge BUTLER.
This is an appeal by Janice Boyer (Boyer) from the February 21, 2008 Order of the Court of Common Pleas of Montgomery County (trial court) which affirmed the decision of the Zoning Hearing Board of Upper Merion Township (ZHB) granting the variance requests of Allison Green (Green) to construct an in-ground swimming pool on her residential property. On appeal, Boyer, a neighboring property owner residing at 124 Gypsy Lane, which is adjacent to and downhill from Green's property, argues that the trial court committed errors of law or abused its discretion in upholding the decision of the ZHB.
The history underlying this dispute is that Green purchased her approximately 24,000 square feet of property, located at 138 Gypsy Lane in Gulph Mills, Upper Merion Township (Township), on October 27, 2006. The property is located within an R-1 zoning district, and contains Green's residence. On March 5, 2007, Green applied to the ZHB for a variance from Article VII, Sections 165-29 (side yard regulations) and 165-232.4[1] (steep slope regulations) of the Upper Merion Township Code (Code)[2] so that she could install an in-ground swimming pool, approximately 36' by 18', together with associated improvements such as landscaping and decking, partially within the side yard of her property.
Section 165-29C(3) of the Code provides that, in an R-1 residential district, ". . . an accessory structure may be erected and maintained within the rear quarter of the lot if not closer to the side lot line than ten (10) feet." Section 165-232.4B of the Code provides that "[a]ll freestanding structures, buildings, and substantial improvements (with the exception of driveways and utilities when no other location is feasible) are prohibited in areas of significant slope and are prohibited on slopes. . . ." The phrase "areas of significant slope" is defined in Section 165-232.3 of the Code as "[t]hose areas of a parcel containing naturally occurring slopes of 25% or greater, occupying 1,000 or more contiguous square feet." Under Section 165-27A of the Code, ". . . a lot may be used . . . for any. . . use permitted in R-1A Residential Districts." Section 165-22F of the Code (Article VI R-1A Residential Districts) provides that an accessory use is permitted ". . . on the same lot with and customarily incidental to any . . . permitted uses." Section 165-209A(2)(a) of the Code provides that an in-ground swimming pool is a permitted accessory use incidental to a dwelling in the Township.
The ZHB held a hearing on Green's application on June 20, 2007. According to *181 the evidence presented at the hearing, Green's property is one of three (3) adjacent properties sharing a common driveway off Gypsy Lane, which were developed by the same developer using similar architecture. The other two (2) properties are owned by Patricia and Michael Gallagher and Patricia and Paul Seidel, respectively. These other property owners have in-ground swimming pools, and they are in favor of the ZHB granting Green's variance request.
Approximately one-half (1/2) of Green's rear yard has a naturally-occurring area of significant slopes, as defined under Sections 165-232.4B and 165-232.3 of the Township's Code. In fact, according to Green's engineering expert, Robert Ludgate, Sr. (Ludgate), they are the steepest slopes on Green's property. As a result of the steep slopes in Green's rear yard, she is not able to locate the entire pool within the rear quarter of her lot as mandated by Section 165-29C(3) of the Code. According to Ludgate, the proposed area for Green's pool is the flattest part of the property to the rear of her home which would result in the least disturbance to the steep slopes. However, in order to place the proposed pool in that area, just under half of the pool will encroach into Green's side lot, which is generally prohibited by Section 165-29C(3) of the Code. At the time Green purchased her property, she intended to install an in-ground pool at some point in the future, and she was aware of the topography, shape and size of the lot. Green and Ludgate agreed that the proposed pool could be smaller, and Green said that she was amenable to a pool of any shape, form or size.
On August 1, 2007, the ZHB granted Green's application for variance. On August 9, 2007, Boyer filed an appeal from the ZHB's decision to the trial court. On February 20, 2008, after reviewing the parties' briefs and their oral arguments thereon, the trial court affirmed the ZHB's decision. On March 7, 2008, Boyer filed an appeal to this Court.[3]
In land use cases, such as this one, in which the trial court has taken no additional evidence, this Court's scope of review is limited to determining whether the decision of the ZHB was supported by substantial evidence and is free of legal error. One Meridian Partners, LLP v. Zoning Bd. of Adjustment of City of Philadelphia, 867 A.2d 706 (Pa.Cmwlth.2005). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).
Boyer's counsel suggested at the public hearing before the ZHB that Boyer is concerned that some catastrophic failure of the proposed pool to be perched above her home could result in significant damage to her home. On appeal, Boyer's complaint appears to be simply that Green's proposed pool violates the Township's Code. Specifically, she avers that Green already has a reasonable use of her property, that Green suffers no hardship or only a hardship she created, that placing a large pool in the proposed location will be detrimental to the public welfare, that Green's proposed insurance policy would not sufficiently address irreparable harm that may occur to downhill neighbors, and that the grant of the requested variances would not represent the minimum relief necessary.
The ZHB and, separately, Green aver that the ZHB did not commit an abuse of discretion or error of law in granting Green a dimensional variance for a permitted *182 accessory use of an in-ground pool on residential property under the circumstances.[4] Specifically, they aver that the uncontradicted evidence before the ZHB supported its decision, since Green's property has inherent, unique physical characteristics due to its topography that prohibit its development with a permitted accessory use, and that the requested variances represent minimum accommodations consistent with the essential character of the neighborhood that would afford her relief.
As all of the parties have ably addressed, the general standard by which variances may be granted is set forth in Section 910.2(a) of the Municipalities Planning Code (MPC).[5] Section 910.2(a) of the MPC, 53 P.S. § 10910.2(a), prescribes that the ZHB "shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant." (Emphasis added). The ZHB then:
may grant a variance, provided that all of the following findings are made where relevant in a given case:
(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant.
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
Id.
All parties, likewise, agree that it is necessary to determine whether the variance requested is use (i.e., for a use not permitted by ordinance) or dimensional (which involves a request only for a "reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations"). Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (1998). In either case, however, an applicant must show unnecessary hardship in order to obtain a variance, although the stringency of the standard for proving an unnecessary hardship is different depending upon the type of variance sought. Id. While the Supreme Court did not spell out specific standards for a zoning board's examination of a dimensional variance, it did suggest that the factors in determining unnecessary *183 hardship should include "the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood." Id. 554 Pa. at 264, 721 A.2d at 50.
Relative to the case at hand, we determine that, in order to obtain the variances under Section 910.2(a) of the MPC, Green first had to prove that the Township's zoning ordinances inflict an unnecessary hardship on the property. Then, in order to grant the requested variances, the ZHB had to determine that the five factors set forth therein, where relevant, are satisfied.
As to the threshold issue of whether Green's inability to build the in-ground swimming pool of her choice due to the topography of her property represents an "unnecessary hardship," the ZHB declared in its decision that, "[d]ue to the unique physical characteristics of the Property, [Green] has proven an unnecessary hardship exists for the location of the proposed pool," and that it "has not been created by [Green] but by the unique physical characteristics of the Property." (ZHB Decision at 9). The trial court reiterated this sentiment generally, adding that "[t]he only sufficiently level spot on the property to construct a swimming pool is in the location proposed by [Green], and because that level location is not entirely within the rear quarter of the lot . . . strict compliance with the [Code] is not possible." (Trial Court's Opinion at 8). Boyer avers that Green knew the topography when she purchased her property; therefore, she "has no hardship, only a desire to build a swimming pool in contravention of the [z]oning [o]rdinance." (Appellant's Brief at 6). Green, however, does not specifically address the unnecessary hardship issue, other than to state that her situation was not self-inflicted. (Appellee's Brief at 9). There is no question that in-ground swimming pools are permitted accessory uses on residential properties within R-1 Residential Districts in the Township.
The issue of whether not being able to place a desired pool in a desired location presents an unnecessary hardship is a question not previously addressed by this Court under the Hertzberg criteria.
It is well settled that variances are to be sparingly granted, and the reasons for granting them must be substantial, serious and compelling. Valley View Civic Ass'n. In Yeager v. Zoning Hearing Bd. of the City of Allentown, 779 A.2d 595, 598 (Pa.Cmwlth.2001), this Court stated that "a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses [and that a] variance, whether labeled dimensional or use, is appropriate `only where the property, not the person, is subject to hardship.'" (Emphasis in original).
In Yeager, a car dealership sought a dimensional variance for construction of an additional facility on its property in order to sell Land Rovers. This Court affirmed the trial court's decision that reversed the grant of a dimensional variance, stating that the property owner was not entitled to the variance, since the property was "well suited to the purpose for which it [was] zoned and actually used." Id. The Court found that the only burden placed upon the property owner by the ordinance was upon his desire to sell Land Rovers.
Prior to Yeager, this Court decided In re Leopardi, 90 Pa.Cmwlth. 616, 496 A.2d 867 (1985), in which the property owners sought a building permit to add a garage to their residence. While a garage was a permitted accessory use under the zoning ordinance, this Court affirmed the trial *184 court's reversal of the request stating that "[t]he fact that a garage is permitted as an accessory use . . . does not mean that [the landowners] must be allowed to construct a garage on their property in order to utilize that property reasonably." Id. at 869.[6]
The record in the case before us is clear that the unique, naturally-occurring topographical and physical conditions of Green's property prohibit her from placing her proposed pool entirely within the rear quarter of her property in strict compliance with the Township's Code. The evidence before the ZHB demonstrated that Green purchased the property as a residence, and she continues to use the property in that capacity. (ZHB Notes of Testimony (N.T.) at 48-49). She purchased the property with the intention of installing a swimming pool. (N.T. at 46). She had full knowledge of the property's topography when she purchased it. (N.T. at 49-50). There was no indication that the Code sections at issue burden all dimensionally compliant uses of Green's property, but only the particular use she has chosen. In fact, Green could, and is willing to, construct a smaller pool within the requirements of the Township's Code. (N.T. at 37, 39). Thus, it is not the property, but Green, that is arguably subject to hardship. Yet it is clear to this Court, based upon controlling law, that the Township's Code does not place an unnecessary hardship on the property.
In order for the ZHB to have properly examined Green's application under Section 910.2(a) of the MPC it must first have found that the Township's Code placed an unnecessary hardship on her property. Instead, the ZHB merely declared, and the trial court opined, that the unique physical characteristics of Green's property were an unnecessary hardship for Green. Because Green failed to establish that the property was subject to unnecessary hardship, the ZHB erred in reaching the five-part analysis under Section 910.2(a) of the MPC. We therefore hold that the trial court erred in affirming the August 1, 2007 order of the ZHB.
Accordingly, the trial court's order is reversed.
ORDER
AND NOW, this 22nd day of October, 2008, the Order of the Court of Common Pleas of Montgomery County in the above-captioned matter is REVERSED.
NOTES
[1] While the ZHB noted that Green applied for variances from both Sections 165-29 and 165-232.4B of the Township's Code, her application reflects only a request for a variance pursuant to Section 165-29 of the Code. This does not, however, appear to have been an issue for any of the parties to this action.
[2] Upper Merion Township Zoning Ordinance of 1942, as amended, October 31, 1953.
[3] In response to Boyer's appeal, the trial court issued an opinion dated May 27, 2008.
[4] The Township, an intervenor in this appeal, adopted the ZHB's arguments in opposition to Boyer's appeal of the ZHB's decision.
[5] Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2.
[6] On appeal, the Supreme Court reversed that part of the Court's order which affirmed the trial court's order that the garage at issue be removed on grounds of ultra vires. In re Leopardi, 516 Pa. 115, 532 A.2d 311 (1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565103/ | 34 So. 3d 159 (2010)
Dana CHILD, Appellant,
v.
Amy L. CHILD, Appellee.
No. 3D08-3237.
District Court of Appeal of Florida, Third District.
May 5, 2010.
*160 DeVane & Dorl and William N. DeVane, Jr., Marathon; Greene Smith and Cynthia L. Greene, for appellant.
Hershoff, Lupino & Yagel and Jay A. Hershoff and Jessica B. Reilly, Tavernier, for appellee.
Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
LAGOA, J.
Dana Child appeals from the final judgment dissolving his marriage to Amy Child. Although we affirm the trial court's ruling that the husband's income was greater than he reported, the trial court's determination concerning imputation of a specific amount of additional income to the husband, as well as the trial court's ruling that the husband obtain term life insurance to secure the alimony award, were not based upon competent, substantial evidence. We, therefore, reverse those portions of the judgment. We must also reverse the trial court's awards of permanent periodic alimony and retroactive support because they are based upon the trial court's incorrect determination of the husband's income. With respect to these awards, we direct the trial court to recalculate the amount of the awards based upon reconsideration of the husband's imputed income. In all other respects, we affirm the final judgment.[1]
A. IMPUTATION OF INCOME
As to the imputation of income, we disagree with the husband's contention that the record does not contain the required evidence or that the trial court did not make sufficient factual findings to support its conclusion that he is underemployed *161 or concealing his true income. It is within the trial court's discretion to impute income to a spouse in order to determine the support awards. See §§ 61.08(2), 61.30(2)(b), Fla. Stat. (2008). In addition, "Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth." Ugarte v. Ugarte, 608 So. 2d 838, 840 (Fla. 3d DCA 1992).
Here, the husband is a self-employed marine electronic technician, reporting a gross monthly income of $1759. He has been in this business for the past twenty years and operates his business with minimal cost at a property owned by his sister. He does not advertise his services and obtains customers based on referrals. The husband testified that he charges $85 an hour for installation of equipment, but sometimes does not charge for other business-related work. Although he was unable to testify as to the number of hours he worked per week, he admitted that if he worked two hours a day, he could make $850 a week. The husband does not have separate bank accounts or credit card accounts for his personal and business expenses. In addition, there was evidence and the husband's testimony that he paid his monthly credit card bill in full, and during the pendency of the divorce proceedings from 2005 until the 2008 trial, he voluntarily paid the mortgage and expenses for the marital home where his wife and two children reside. The household expenses totaled approximately $1300 a month. He also voluntarily paid approximately $500 in monthly expenses for the parties' two minor children. The credit card bills varied from approximately $3000 to $15,000 a month. The husband submitted tax returns showing a reported range of gross income from $13,004 to $27,772. In his latest financial statement, he stated that his monthly living expenses are $1749.33 greater than his net monthly income of $1449.[2]
This record justifies the trial court's conclusion that the husband's financial documents and testimony did not demonstrate the accuracy of his reported income and that the negative cash flow, which the trial court concluded was not satisfactorily explained, supports a ruling that the husband's income was greater than he reported. See Tomaszewski v. Tomaszewski, 793 So. 2d 1156 (Fla. 4th DCA 2001); Beniaminov v. Beniaminov, 789 So. 2d 494 (Fla. 3d DCA 2001); Johnson v. Johnson, 725 So. 2d 1209 (Fla. 3d DCA 1999); Bromson v. Dep't of Revenue, 710 So. 2d 154 (Fla. 4th DCA 1998); Silberman v. Silberman, 670 So. 2d 1109 (Fla. 3d DCA 1996); Ugarte, 608 So.2d at 838. Based on this evidence, we affirm the trial court's ruling.
We find merit, however, in the husband's argument that the record lacks competent, substantial evidence to support the trial court's imputation of the specific amount of an additional $3000 in monthly income to the husband. At trial, the court did not explain how it arrived at this figure, and the final judgment and the record do not disclose any basis for finding that the husband actually earned or is capable of earning $3000 in additional income each month. We therefore must reverse the trial court's ruling as to this specific amount. See Ponce, 997 So.2d at 1120; Griffin v. Griffin, 993 So. 2d 1066 (Fla. 1st DCA 2008); Narcis v. Narcis, 707 So. 2d 936 (Fla. 3d DCA 1998). On remand, the trial court shall reconsider the amount of *162 the husband's imputed income.[3]
B. LIFE INSURANCE
As to the life insurance, the husband argues that the trial court erred in requiring him to obtain insurance based on the absence of evidence of special circumstances and the absence of evidence as to the cost, amount, or availability of such insurance. We agree only with the latter contention.
It is within the trial court's authority to order the husband to provide term life insurance to protect the child support and alimony payments. See §§ 61.08(3), 61.13(1)(c), Fla. Stat. (2008); Sobelman v. Sobelman, 541 So. 2d 1153, 1154 (Fla.1989). "[I]n determining whether to secure support awards, the trial court should consider the need for such insurance, the cost and availability of such insurance, and the financial impact upon the obligor." Plichta v. Plichta, 899 So. 2d 1283, 1287 (Fla. 2d DCA 2005). See also Byers v. Byers, 910 So. 2d 336, 346 (Fla. 4th DCA 2005). Absent special circumstances, however, the trial court may not impose such requirement. See Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008); Melo v. Melo, 864 So. 2d 1268 (Fla. 3d DCA 2004); Frechter v. Frechter, 548 So. 2d 712 (Fla. 3d DCA 1989). "`Such special circumstances include a spouse potentially left in dire financial straits after the death of the obligor spouse due to . . . ill health and/or lack of employment skills . . . minors living at home, [and] supported spouse with limited earning capacity. . . .'" Kotlarz v. Kotlarz, 21 So. 3d 892, 893 (Fla. 1st DCA 2009) (quoting Richardson v. Richardson, 900 So. 2d 656, 661 (Fla. 2d DCA 2005)).
We reject the husband's contention that there was no showing of special circumstances to justify this provision of the judgment. Here, the record clearly indicates the requisite circumstances to support imposition of this requirement, including minor children residing in the home, the wife's disability,[4] her diminished earning capacity, and her dependence on the husband for financial support. See Massam, 993 So.2d at 1022; Davidson v. Davidson, 882 So. 2d 418 (Fla. 4th DCA 2004).
We agree, however, that this requirement may not stand absent evidence or findings as to the cost, amount, or the availability of such insurance. See Massam, 993 So.2d at 1022; Rubinstein v. Rubinstein, 866 So. 2d 80 (Fla. 3d DCA 2003); Zimmerman v. Zimmerman, 755 So. 2d 730 (Fla. 1st DCA 2000); Schere v. Schere, 645 So. 2d 21 (Fla. 3d DCA 1994). Accordingly, we reverse this provision of the final judgment. Because the trial court, on remand, must reconsider the husband's imputed income and the resulting amount of permanent alimony and retroactive support awards, it shall also consider evidence as to the cost, amount, or availability of insurance.
For the foregoing reasons, the judgment is affirmed in part, and reversed in part, and remanded for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] Because the trial court merely determined entitlement to attorney's fees, but did not set an award amount, we lack jurisdiction to address the husband's contentions that the trial court erred in finding that the wife was entitled to attorney's fees. See Zuberer v. Zuberer, 28 So. 3d 993 (Fla. 2d DCA 2010); Ponce v. Ponce, 997 So. 2d 1120, 1122, n. 1 (Fla. 3d DCA 2008); Jacobs v. Jacobs, 868 So. 2d 568 (Fla. 3d DCA 2004).
[2] The financial statement includes $235 for children's expenses.
[3] On remand, it is within the trial court's discretion to consider additional evidence. See Rodriguez v. Rodriguez, 958 So. 2d 436, 437 n. 3 (Fla. 3d DCA 2007). This Court expresses no opinion as to whether the evidence on remand will support a determination of imputed additional income that is greater than, less than, or equal to the $3000 figure.
[4] The record establishes that the wife is legally blind. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645022/ | 994 So. 2d 314 (2008)
TRAVIS
v.
STATE.
No. 2D08-1817.
District Court of Appeal of Florida, Second District.
September 17, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858168/ | Dudley v. FDIC
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-649-CV
WILLIAM S. DUDLEY AND GEORGE ROBERT DUDLEY,
APPELLANTS
vs.
FEDERAL DEPOSIT INSURANCE CORPORATION,
APPELLEE
FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT
NO. 92-04-4738, HONORABLE ERNEST CADENHEAD, JUDGE PRESIDING
PER CURIAM
Appellee, the Federal Deposit Insurance Corporation (FDIC), sued appellants,
William S. Dudley and George Robert Dudley, to reform a deed. The trial court rendered
summary judgment for the FDIC, striking certain language from the deed as illegal and against
public policy. In their sole point of error, the Dudleys assert that the trial court erred in striking
the language from the deed. We will affirm the trial court's judgment.
The deed containing the disputed language lay in the chain of title to land in Mills
County owned by the FDIC. Charles Ruben Dudley executed the deed in 1947, conveying a life
estate in the land to one of his children, Ella J. Dudley Purvis, with the remainder to her sons,
Howard Dudley Purvis and James Henry Purvis. In addition to granting the land, Charles Ruben
Dudley included a redemption clause in the deed in the event the land should be sold for taxes.
The redemption clause empowered his two other children, Charles Sutton Dudley and Ruby
Willyene Dudley, or their heirs, to obtain title to the land by paying the assessed taxes, costs, and
penalties. In 1989 and 1990, Howard D. Purvis and J. H. Purvis executed deeds conveying the
land to the FDIC. Ruby Willyene Dudley died without heirs. Charles Sutton Dudley died leaving
three heirs; all three were served in this suit, though only the two appellants answered.
The party moving for summary judgment must prove that it is entitled to judgment
as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979); see R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d
517, 519 (Tex. 1980) (unambiguous contract was proper basis of summary judgment). We,
therefore, review the summary-judgment record to determine whether it establishes the FDIC's
right to recover as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.
1970).
The public policy of this State on the right of redemption is set forth in the
redemption statutes, which are assembled in the Property Tax Code. Macha v. Carameros, 674
S.W.2d 491, 493 (Tex. App.--El Paso 1984, no writ); see Tex. Tax Code Ann. §§ 34.21--.23
(West 1992) (Code); see also Tex. Const. art. 8, § 13; Code §§ 34.01--.07 (West 1992). The
policy of redemption exists in favor of the property owner: the owner of property sold at a tax
sale has the right to redeem the property within two years after the purchaser's deed is filed for
record. Code § 34.21; Macha, 674 S.W.2d at 491. The right to redeem property sold for taxes,
rather than being a right personal to the property owner, is granted as a statutory privilege.
McGuire v. Bond, 271 S.W.2d 508, 511 (Tex. Civ. App.--El Paso 1954, writ ref'd n.r.e.).
Reflecting statutory control of the right to redeem, Texas courts have consistently
relied on the redemption statutes to adjudicate redemption disputes. Based on the governing
statutes, for example, courts have refused to recognize a right to redeem in either a person lacking
any title to land or one claiming land by adverse possession. E.g., Hughes v. Price, 229 S.W.2d
79, 79-80 (Tex. Civ. App.--Amarillo 1950, no writ); McMillan v. Owens, 209 S.W.2d 622, 625
(Tex. Civ. App.--Amarillo 1948, no writ). Courts likewise recognize that the redemption statutes
govern the propriety of redemption procedures. E.g., City of El Paso v. Forti, 181 S.W.2d 579,
581 (Tex. 1944); Allar Co. v. Snodgrass, 252 S.W.2d 730, 734 (Tex. Civ. App.--El Paso 1952,
writ ref'd n.r.e.); Graham v. Caballero, 243 S.W.2d 286, 288 (Tex. Civ. App.--El Paso 1951,
writ ref'd n.r.e.).
When Charles Ruben Dudley conveyed the land in 1947, he tried to confer a right
to redeem on two of his children, and their heirs, to whom he conveyed no ownership rights. Had
William S. Dudley and George Robert Dudley, heirs of these two children, tried to redeem the
land apart from the deed's provisions, the statute would have barred their claim. Code, § 34.21.
We see no basis on which Charles Ruben Dudley could unilaterally expand the right of redemption
to include claimants not designated by statute. See generally Bouldin v. Miller, 28 S.W. 940, 941
(Tex. 1894) (rights in land are fixed by law; private persons cannot dispense with legal
requirements by contract).
When a clause in a deed is illegal or against public policy, the court will hold it to
be void. Frame v. Whitaker, 36 S.W.2d 149, 151-52 (Tex. 1931); Gray v. Vandver, 623 S.W.2d
172, 174 (Tex. App.--Beaumont 1981, no writ); Dodson v. Dodson, 299 S.W.2d 775, 776 (Tex.
Civ. App.--Austin 1957, no writ). Because the trial court correctly struck the redemption language
from the deed as illegal, we overrule point one.
We affirm the trial court's summary judgment.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: October 20, 1993
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1563724/ | 16 So. 3d 822 (2009)
MAY
v.
STATE.
No. 1D08-5935.
District Court of Appeal of Florida, First District.
September 4, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
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