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https://www.courtlistener.com/api/rest/v3/opinions/732656/ | 104 F.3d 353
NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.Khalel EL-JASSEM, Plaintiff-Appellant,v.UNITED STATES of America, Appellee.
No. 95-1345.
United States Court of Appeals, Second Circuit.
Nov. 25, 1996.
1
APPEARING FOR APPELLANT: Khaled El-Jassem, Lompoc, Cal.
2
APPEARING FOR APPELLEE: Zachary W. Carter, U.S. Atty., Brooklyn, N.Y.
3
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was taken on submission.
4
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the order of the District Court is hereby AFFIRMED.
5
Khaled Mohammed El-Jassem appeals pro se from the May 22, 1995, ruling of the District Court denying his motion for reduction of a sentence imposed in 1993 for the 1973 attempted bombing of three buildings. The District Court fully explained the reasons for the sentence at the time of the original sentencing. See United States v. v. El-Jassem, 819 F.Supp. 166 (E.D.N.Y.1993). We affirmed on direct review. United States v. El-Jassem, No. 93-1304 (Dec. 29, 1994).
6
Appellant invoked the provisions of unamended Rule 35(b), which were applicable to offenses committed before 1987. He contended that he was a "more mature, different man than the one who planted car bombs in 1973," that the changing political climate in the Middle East made his punishment less necessary, and that he wished to participate in the process of restoring peace to the Middle East.
7
On appeal, El-Jassem renews these arguments and also c ontends that he should be immune from punishment because of his alleged diplomatic status with the Palestine Liberation Organization ("PLO") and because of immunity provided by the Foreign Sovereign Immunities Act of 1976 ("FSIA"), Pub.L. 94-583, 90 Stat. 2891-98.
8
The motion to reduce the sentence was properly denied. Disposition of such a motion is within the discretion of the District Court. See United States v. Januszewski, 777 F.2d 108 (2d Cir.1985); United States v. Slutsky, 514 F.2d 1222 (2d Cir.1975). The ruling was well within the Court's discretion. The immunity claims are procedurally defective because they were not raised on direct review and because they were not raised in the District Court on the motion to reduce. In any event, the claims are without merit. Appellant furnished no indication that he has been recognized by the United States as enjoying diplomatic status, see United States v. Kostadinov, 734 F.2d 905, 912 (2d Cir.1984) (diplomatic status recognized only through official list prepared by United States Government). The FSIA claim fails because the PLO is not a foreign state for purposes of the Act, see Klinghofer v. S.N.C. Achille Lauro, 937 F.2d 44, 48 (2d Cir.1991), and was not in 1973. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2592116/ | 75 N.Y.2d 295 (1990)
Sumitomo Marine & Fire Insurance Co., Ltd. U.S. Branch, Respondent,
v.
Cologne Reinsurance Company of America et al., Defendants, and Buffalo Reinsurance Company et al., Appellants.
Court of Appeals of the State of New York.
Argued January 3, 1990.
Decided February 13, 1990.
Thomas R. Newman and Barry Bassis for appellants.
John H. Haley for respondent.
Chief Judge WACHTLER and Judges SIMONS, TITONE and HANCOCK, JR., concur; Judges ALEXANDER and BELLACOSA taking no part.
*298KAYE, J.
This appeal calls upon us to resolve a question of reinsurance law a field in which differences have often been settled by handshakes and umpires, and pertinent precedents of this court are few in number.
Plaintiff (Sumitomo Marine & Fire Insurance Company), an insurer, underwrote a one-year commercial property insurance policy for Auburn Steel Company, a steel mill located in upstate New York. The policy became effective on February 1, 1983, and provided "all-risks" coverage against loss of or damage to property from any hazard save those specifically excluded. Like steel mills generally, Auburn used a small quantity of cesium, a radioactive material, in the device that measured the factory's output. Loss resulting from radioactive contamination had been covered by Auburn's prior all-risks policy.
Sumitomo had not previously provided insurance to a steel mill, but agreed to provide Auburn the same coverage as had its predecessor, Factory Mutual Company. In issuing the insurance, Sumitomo therefore supplemented a Chubb policy form it was using, which listed "nuclear" among the loss or damage exclusions, by "Amendment No. 3," providing coverage for "Sudden and accidental Radioactive Contamination, including resultant radiation damage * * * from material used or stored or from processes conducted on the described premises."
Sumitomo then sought to reinsure the Auburn policy. Sumitomo's offer to purchase reinsurance was made by telex to various potential reinsurers through its agent, Thomas A. Greene & Company. The offering telex noted that Auburn was a steel mill, that its prior insurer was Factory Mutual, and that an inspection report was available, but the telex contained *299 no explicit reference to radioactive contamination coverage. On February 9, 1983, defendant Philadelphia Reinsurance Corporation telexed its acceptance of a percentage of the Auburn insurance risk, and on February 10, defendant Buffalo Reinsurance Company telephoned its acceptance. Seven other facultative reinsurers accepted as well. (The other reinsurers are not parties to this appeal.)
Barely two weeks later, on February 21, 1983, scrap metal at the Auburn plant was contaminated with cobalt-60, a radioactive material, causing a shutdown of the facility and a business interruption loss covered by the Sumitomo policy. Defendant Buffalo was notified of the loss during February 1983; and while the precise date was not fixed, Philadelphia undisputedly received notification by October 1983. Meanwhile, Greene had sent a cover note to the reinsurers confirming their acceptance. After notice of Auburn's loss, defendants signed the note without question or reservation signifying acceptance.
Finally, in late 1983 copies of the actual policy that Sumitomo had issued to Auburn including Amendment No. 3, covering radioactive contamination were delivered to all the reinsurers. As is apparently customary, only after receiving the original policy did defendants issue their formal certificates of reinsurance. Philadelphia's certificate is dated December 28, 1983, and Buffalo's February 1, 1984. Each certificate obliged the reinsurer to "follow the fortunes" of its reinsured, except as coverage was expressly excluded, and each contained or referred to a nuclear incident exclusion clause.[1]
*300Sumitomo settled with Auburn, and requested payment from its reinsurers. After defendants refused, Sumitomo commenced this action. As in the letter refusing payment, in their answer to the complaint defendants contended only that the loss was excluded by virtue of the nuclear incident exclusion clause contained in the reinsurance certificates. However, in their summary judgment motion, made in October 1987 upon the completion of extensive discovery, defendants raised the additional contention pressed on this appeal that they would not have entered into a reinsurance agreement had Sumitomo disclosed that the primary policy covered incidental radioactive contamination. Defendants argue that because of Sumitomo's alleged failure to disclose what defendants contend was a material risk, they are now entitled to rescission of the reinsurance agreement. In connection with this claim, defendants assert that the agreement was complete on February 9 or 10, 1983 when they accepted Sumitomo's telexed offer, and that later issuance of formal certificates was merely "ministerial" and without legal significance. Alternatively, *301 defendants argue that their exclusion clause precluded coverage of the Auburn accident.
Reversing the trial court's award of summary judgment to defendants,[2] the Appellate Division unanimously rejected defendants' first claim, and held that in the circumstances defendants were obliged to determine the actual scope of coverage before issuing their formal certificates of reinsurance. A divided court went on to hold that the reinsurance certificate covered an incidental radioactive loss, and it remanded for a factual determination as to whether the risk here was considered primary or incidental. While we agree with the Appellate Division's reading of the exclusion clause and affirm that court's order, we do so on somewhat different grounds.
We begin our analysis with certain fundamental propositions in the law of reinsurance.
Reinsurance is a means by which insurers reallocate their risk. In general terms, it is "the insurance of one insurer (the `reinsured') by another insurer (the `reinsurer') by means of which the reinsured is indemnified for loss under insurance policies issued by the reinsured to the public." (Kramer, Nature of Reinsurance, reprinted in Reinsurance, at 5 [Strain ed 1980].) The agreement at issue in this case is "facultative" reinsurance. As contrasted with "treaty" reinsurance, which involves an ongoing agreement between two insurance companies binding one in advance to cede and the other to accept certain reinsurance business pursuant to its provisions, facultative reinsurance involves the offer[3] of a portion of a particular risk to one or more potential reinsurers, who are then free to accept or reject the risk in whole or part (see generally, Thompson, Reinsurance, at 75 [4th ed 1966]).
Typically, the details of the risk proposed to be ceded by the *302 reinsured are circulated to possible reinsurers, who in turn indicate their willingness to accept some portion of the risk, and to be bound by their agreement to do so. In the London market the Mecca of the reinsurance world this was traditionally accomplished by the ceding company or its broker preparing a slip with brief details of the risk to be placed; the slip was then taken to prospective reinsurers who, if prepared to accept, initialed it, indicating the proportion of the risk they wanted. Under normal circumstances, the initialing of the slip constituted a binding agreement. With electronic advances, the slip has been replaced by an exchange of telephone calls or telexes, as in this case. Delivery of the original insurance policy to the reinsurer and issuance by the latter of a formal certificate of reinsurance may not occur until much later, and indeed are technically unnecessary for a binding agreement (Butler & Merkin, Reinsurance Law, at A5.1-02).
It is this swift, seemingly almost casual process of contract formation that has given rise to the controversy before us. Defendants claim that at the time of the binder they were never informed of the allegedly unusual radiation coverage Sumitomo provided Auburn; Sumitomo as vehemently asserts that defendants knew or should have known that such coverage would be provided to Auburn, as it generally was to steel mills (who necessarily use cesium) and as it actually had been by Factory Mutual.
While that factual difference remains unresolved, it is unnecessary to the disposition of this appeal. What instead becomes determinative are defendants' acts subsequent to the binder, including their issuance of the reinsurance certificates.
Turning first to the question of contract interpretation, we agree with the Appellate Division majority's reading of defendants' clause. Unlike paragraphs 3 and 4 of the exclusion both of which refer back to prior paragraphs paragraph 5 unqualifiedly declares that the entire exclusion is inoperative "where the nuclear exposure is not considered by the Reassured to be the primary hazard." Here, the parties are now in accord that the use of radioactive isotopes was not considered by Sumitomo to be the primary hazard. Thus, the nuclear exclusion clause, on a straightforward reading, would not preclude coverage in this case.
Contrary to defendants' claim, the natural reading of this clause is neither unusual nor absurd. Exclusion clauses commonly specify that they do not apply where the excluded *303 operations are considered incidental, with the determination left to the reinsured (see, Salm, Reinsurance Contract Wording, reprinted in Reinsurance, at 79, 82 [Strain ed 1980]). Indeed, defendants' suggestion that paragraph 5 can apply only where the direct policy does not name radioactive contamination as a covered hazard in other words, that the reinsurance includes this risk only when the original policy does not seems the more strained construction. We therefore conclude that the plain language of defendants' own clause should prevail.
Accordingly, by the terms of their reinsurance certificates, defendants agreed to indemnify Sumitomo for the very type of damage at issue in this case. It remains only to address defendants' contention that even though their clause permits the same coverage that Sumitomo extended to Auburn they never would have agreed to the contract in the first instance had they known that Sumitomo had provided coverage for incidental nuclear damage.
The premise underlying defendants' contention that their agreement to reinsure the Sumitomo policy is voidable is that at the outset Sumitomo was required to disclose to the reinsurers its extension of coverage to incidental nuclear damage. A reinsured is obliged to disclose to potential reinsurers all "material facts" concerning the original risk, and failure to do so generally entitles the reinsurer to rescission of its contract (see, Royal Indemn. Co. v Preferred Acc. Ins. Co., 243 App Div 297, 301, affd 268 N.Y. 566). But the reinsured ordinarily has no obligation to disclose the terms upon which insurance has been granted where those terms are generally to be found in policies of that nature, for the reinsurer ought to be aware of such standard terms (Butler & Merkin, Reinsurance Law, at A6.4-04 [1988]; see also, Carter, Reinsurance, at 125-126 [1979]). Where the reinsured has offered extended coverage or an unusual term, however, that is a material fact which, if not disclosed, would render a reinsurance agreement voidable. (Id.) Sumitomo asserts that coverage of incidental nuclear damage is routine in insurance of steel mills; defendants claim that the coverage is highly unusual.
Whether or not such coverage is in fact standard for steel mills generally, defendants in effect waived any claim that they would not have entered into this reinsurance agreement had they been aware of Amendment No. 3.
*304While defendants' claim may be doubted on its merits (even their own clause does not exclude the coverage), the crucial point is that defendants were fully aware of Auburn's loss before signing the cover note, and fully aware of Amendment No. 3 before they issued their certificates of reinsurance.[4] Nonetheless, during the entire duration of the policy and for a considerable time thereafter even well after they had denied payment and answered the complaint in this litigation defendants failed to seek to void the agreement but treated it as fully valid.
Defendants correctly argue that issuance of a formal certificate of reinsurance is in a sense a technical or "ministerial" act. However, defendants not only failed to take steps to assert their alleged right to rescission within a reasonable time, as they were required to do (Carter, Reinsurance ch 4, at 128, [1979]), but also affirmatively treated the agreement as a valid one well beyond the point where they had the most complete possible notice of the coverage undertaken by Sumitomo. Under these circumstances, they have waived that claim (see, 16C Appelman, Insurance Law and Practice § 9254, at 348; Zeldman v Mutual Life Ins. Co., 269 App Div 53).
Having so concluded, we need not and do not decide the broader issue of a reinsured's duty of disclosure where the reinsurer's independent limitations on its exposure coincide with an allegedly unusual liability undertaken by the reinsured (see, Butler & Merkin, Reinsurance Law, at A6.4-05 A6.4-06, [1988] [citing British cases]).
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.[5]
Order affirmed, etc.
NOTES
[1] The clause, apparently a standard one, provides as follows:
"1. This Reinsurance does not cover any loss or liability accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, from any Pool of Insurers or Reinsurers formed for the purpose of covering Atomic or Nuclear Energy risks.
"2. Without in any way restricting the operation of paragraph (1) of this Clause, this Reinsurance does not cover any loss or liability accruing to the Reassured, directly or indirectly and whether as Insurer or Reinsurer, from any insurance against Physical Damage (including business interruption or consequential loss arising out of such Physical Damage) to:
"I. Nuclear reactor power plants including all auxiliary property on the site, or
"II. Any other nuclear reactor installation, including laboratories handling radioactive materials in connection with reactor installations, and `critical facilities' as such, or
"III. Installations for fabricating complete fuel elements or for processing substantial quantities of `special nuclear material,' and for reprocessing, salvaging, chemically separating, storing or disposing of `spent' nuclear fuel or waste materials, or
"IV. Installations other than those listed in paragraph (2) III above using substantial quantities of radioactive isotopes or other products of nuclear fission.
"3. Without in any way restricting the operations of paragraphs (1) and (2) hereof, this Reinsurance does not cover any loss or liability by radioactive contamination accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, from any insurance on property which is on the same site as a nuclear reactor power plant or other nuclear installation and which normally would be insured therewith except that this paragraph (3) shall not operate
"(a) where Reassured does not have knowledge of such nuclear reactor power plant or nuclear installation, or
"(b) where said insurance contains a provision excluding coverage for damage to property caused by or resulting from radioactive contamination, however caused. However on or after 1st January 1960 this sub-paragraph (b) shall only apply provided the said radioactive contamination exclusion provision has been approved by the Governmental Authority having jurisdiction thereof.
"4. Without in any way restricting the operations of paragraphs (1), (2) and (3) hereof, this Reinsurance does not cover any loss or liability by radioactive contamination accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, when such radioactive contamination is a named hazard specifically insured against.
"5. It is understood and agreed that this Clause shall not extend to risks using radioactive isotopes in any form where the nuclear exposure is not considered by the Reassured to be the primary hazard."
[2] The trial court had granted defendants summary judgment on the ground that Amendment No. 3 modified the "original contract" of direct insurance, and that the reinsurers could not be bound by that modification absent their agreement in writing. However despite a record as complete (in defendants' words) "as it would be after trial" defendants raise no issue of fact regarding Sumitomo's proof that from the outset the parties' intention was to continue Auburn's coverage and that the agreement took the form it did because Sumitomo did not have its own policy forms that would have been suitable.
[3] For purposes of this discussion, we need not determine which is technically the "offer" and which the "acceptance," in classical contract terms a subject that appears to have generated disagreement (see, Butler & Merkin, Reinsurance Law, at A5.1-01 [1988]).
[4] The Appellate Division unanimously concluded that issuance of the reinsurance certificates alone barred defendants' claim: "Under these circumstances, it was incumbent upon respondents to determine the scope of the coverage in the direct insurance policy before issuing their formal contract underwriting the risk of such coverage." (149 AD2d, at 378; see also, id., at 380 [Wallach, J., dissenting].)
[5] Defendants' concession before us that the nuclear coverage was considered incidental, not primary, resolves the open factual issue identified by the Appellate Division. However, this court is without jurisdiction to take the logical next step and grant summary judgment to Sumitomo, a nonappealing party (see, Hecht v City of New York, 60 N.Y.2d 57; see also, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3034449/ | FILED
NOT FOR PUBLICATION MAR 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50020
Plaintiff - Appellee, D.C. No. CR-07-00916-PA
v.
MEMORANDUM *
MARKAY LEWIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Markay Lewis appeals from his guilty-plea conviction and 105-month
sentence for being a felon in possession of ammunition, in violation of 18 U.S.C.
§ 922(g)(1), and distribution of cocaine base in the form of crack cocaine, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
SR/Research
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Pursuant to Anders v. California,
386 U.S. 738 (1967), Lewis’ counsel has filed a brief stating there are no grounds
for relief, along with a motion to withdraw as counsel of record. We have
provided the appellant with the opportunity to file a pro se supplemental brief. No
pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district
court’s judgment is AFFIRMED.
SR/Research 2 08-50020 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1566109/ | 159 F.2d 661 (1947)
GREAT ATLANTIC & PACIFIC TEA CO.
v.
Lloyd BRASILEIRO.
No. 143, Docket 20427.
Circuit Court of Appeals, Second Circuit.
February 3, 1947.
Before L. HAND, SWAN, and CLARK, Circuit Judges.
Henry N. Longley and Bigham, Englar, Jones & Houston, all of New York City (John W. R. Zisgen, of New York City, of counsel), for appellant.
Frank J. McConnell and Purrington & McConnell, all of New York City (James D. Brown, of New York City, of counsel), for petitioner Lloyd Brasileiro.
L. HAND, Circuit Judge.
These appeals are from a decree in a proceeding by a shipowner to limit its liability for damage by fire and water to the cargo of the ship, "Pocone." As the total claims are less than the conceded value of the ship, no question of limitation arises; and the first and chief issue is of the owner's *662 liability under the fire statute:[1] that is to say, whether the fire was "caused by its design or neglect." A second and subsidiary issue is of the owner's liability for water damage, but, as will appear, this it will be unnecessary to decide. The facts, substantially as the judge found them, are as follows. In November and December, 1941, the "Pocone" lifted a cargo in Brazilian ports, consisting for the most part of coffee and castor beans. Her last port of call was Victoria, Brazil, from which she cleared on December 9th; but she put in at Recife for bunkers on the 13th and finally broke ground bound for New York on the 14th. She had been designed with a cross or thwartship bunker forward of the boiler room; but, because coal was scarce in Brazil, before she left the United States she also filled her "Reserve Bunker," which was the space just forward of the cross bunker, connected with the boiler room by a tunnel passing through the cross bunker. Before she began to lade any of her return cargo, the "Reserve Bunker," the coal from which had been burned on the voyage south, was thoroughly cleaned and made ready as stowage space; and, when she left Victoria, 8500 bags of castor beans in burlap were stowed in it. These bags reached up to the 'tween-decks above about twenty-one feet and filled the hold thwartships and fore and aft except for a space of about eight inches between the after end of the stow and the after bulkhead. The judge found that, through the working of the ship during the voyage, the stow had slipped so that some, if not all, of the after bags were either in actual contact with, or very close to, the after bulkhead. On the 19th five days after the ship left Recife the coal in the port cross bunker began to give off fumes and heat; but this quickly disappeared after the crew played water over the surface, and nothing further untoward happened until the 28th, when again the coal in the port cross bunker was found to have heated. By the afternoon of that day flames appeared on its surface, and although the crew intermittently wet it down, this fire continued to break out, and by the afternoon of the 29th, had extended to the starboard cross bunker. Flames played upon the surface after the ship berthed at her pier in Brooklyn at noon on the 30th, and until midnight of that day. The court concluded that below the surface the coal "must have been highly heated if not incandescent from December 28th to midnight of December 30th," and we accept the finding as an inescapable inference. The ship began to take out the coal which remained in the cross bunker on the afternoon of the 30th; and what was taken out had been so wetted that, although it was steaming, it neither flamed, nor was incandescent. By midnight on the 31st the bunker was substantially empty, the limber boards were exposed and so was the forward bulkhead. The limber boards over the port bilge, from the forward bulkhead aft nearly the whole length of the bunker had been burned; also a hole had been burned through the bottom of a wooden casing which protected a sounding pipe that ran down the side of the forward bulkhead to the port bilge. This casing was made up of three wooden sides which surrounded the sounding pipe, and after the fire at the bottom had burned the hole the casing apparently acted as a chimney, because, although the outside of the boards above the hole was not burned, on the inside about a third of their thickness had been charred away. For a distance of some five feet that part of the bulkhead, along which the pipe ran, had been warped; and this the court found was because of the flames within the casing.
The owner's general agent in New York was in Washington, and his duties devolved upon one, Zumsteg, its "traffic manager," who handled the movements of cargoes, set the schedules of the ship, made arrangements for lading and discharge, and oversaw all operations at the pier. Under him was a man named Borges, the "port engineer," whose duties were to board vessels on their arrival, to make all requisitions for repairs and arrangements with the shipyard if necessary, and whose words, so far as engineering and technical matters were concerned, was final. As was his duty, Borges boarded the ship on the afternoon of the *663 30th and talked with the master who told him that there had been a small fire in the coal for a couple of days. Thereupon Borges went below to the fire room with the master and engineer, and from there he went into the cross bunker, which was lighted, and walked over the coal and looked about; although, as we have said, there were intermittent flames on the surface until midnight of that day, apparently there chanced to be none while Borges was there, and the bunker looked normal. It was Borges who directed that a shore gang should relieve the crew on the morning of the 31st in clearing out the coal; but whether the work continued during the night of the 30th does not appear.
Castor beans are made up of a greasy pulp inside a shell, and the shell is apt to be crushed when the bags are stowed, in which event the oil spills out and stains the bags. About seven-thirty on the morning of January first fire broke out in the castor beans stowed in the "Reserve Bunker," whence it spread to the No. 3 'tween-decks above. Shortly thereafter the fire was reported to the master who ordered the hatch covers to be taken off No. 3 main deck hatch and from the hatch which led from the 'tween-deck to the "Reserve Bunker." The fire hose was connected up and water was poured into that bunker for fifteen or twenty minutes, but, as this proved ineffectual, a fire alarm was turned in, which the city fire department answered. Number 3 hold and 'tween-deck and No. 2 hold and 'tween-deck were flooded and eventually the ship was sunk at her pier. The cargo in both the forward and after holds was damaged by water, which made up most of the loss.
The judge found that the master and crew had been negligent in not recognizing the danger that the fire in cross bunkers might ignite the castor beans. It would have been a simple and practical operation, he thought, to discharge the cargo in the forward square of the hatch of No. 3 'tween-deck and then discharge all the cargo in the "Reserve Bunker," and that ought to have been done before the morning of the first. He found that it was the fire and heat in the cross bunker which had in fact caused the fire in the "Reserve Bunker," and that the bags had been charring and heating for a number of days before they actually caught fire. On the other hand he refused to impute any personal fault or negligence to Borges or Zumsteg, whom he found to have been justified in believing when the "Pocone" had docked that the fire was under control and did not endanger the cargo stowed in the "Reserve Bunker." He found, however, that the ship's bulkheads were unseaworthy, and for this reason he held the owner liable for water damage in No. 2 hold and 'tween-decks, in holds Nos. 4 and 5, and elsewhere; and he held that the fire damage, from which he had exonerated the ship, was a proper item for general average.
We will assume that the fire on the 19th, had that been all, was too inconsiderable to cause any apprehension by the time the ship docked on the 30th: it was then more than ten days old, and if it had been permanently quenched at once, only an over anxious master would have taken precautions against it. But it had not been quenched; after nine days it broke out again, and this time it proved much less manageable; although constantly wet by the ship's hoses even the flames had not been put out when the ship finally docked, or for twelve hours afterwards. No doubt it was not possible to know just what parts of the coal had been burning until the bunker was cleared; but that very fact called, not only for examination, but for immediate examination. A careful master who knew that his coal had been steadily burning for two days would have begun at once to ascertain the conditions in a bunker which was in direct contact with a hold containing such an inflammable cargo. Any master, who did not, was chargeable with what he would have discovered as of the time when with the proper expedition he could have cleared the bunker. That was substantially earlier than midnight of the 31st. Had he done so, he would have seen that the fire had spread all over the bottom of the coal, had burned the limber boards, had burned a hole at the bottom of the casing which had acted as a chimney, and that the flames had warped the exposed *664 bulkhead. The fact that the ship's witnesses saw none of this, instead of excusing them, is eloquent evidence of how superficial they were. Nor will the argument stand scrutiny that it was not heat but the later swelling of the beans which warped the bulkhead. The area was not the least like a bulge which a swollen cargo could make; it was in the exact path of the flames, five feet long and only eighteen inches wide. The ship argues that the beans had been afire or at least charring for two weeks or thereabouts; and there is testimony that they probably had been charring for a time vaguely put at about as long. Obviously it is impossible to know when the charring began; and it makes no difference. We might concede for argument that, although it was not a serious operation to break the hatch into the "Reserve Bunker," it need not have been done at sea; for, even so, enough was already known, at least by the time the ship berthed, to make it a reasonable precaution to do so then. If it had been done, the condition of the stow would have been discovered nearly two days before the fire broke out in it. Even though the bags were smouldering in that interval, some damage was done; and for that much the master's inaction was in any event responsible.
We agree therefore with the judge that the master was negligent; and it is also true, as he held, that the owner is not liable for that negligence without more: that is, not unless it was shared by someone higher in authority. Borges's negligence will do, for to him was deputed supervision over the condition of ships as they came in, and of any repairs they might need, and his word was final about such matters as what was necessary to their proper care in port. The fact that Zumsteg was over him does not mean that he was not himself near enough to the top to charge the owner. The test is the same as is the test of "privity, or knowledge" under the Limitation Section (§ 183, Title 46 U.S.C.A.).[2] While it is seldom if ever that one situation exactly matches with another, we have frequently decided that the negligence of persons no nearer the actual governing officials than Borges should be imputed to corporate owners.[3]
We charge Borges with all that the master knew, not because the master knew it, but because it was his duty from what the master told him and what he saw, not to accept the master's assumption that all was well, but to push inquiries home, to cross-examine the master, to examine the engine room logs, and in general to bestir himself until he had all the information that anyone on board had. As in all such cases, the measure of the duty imposed depends upon the cost or difficulty of the precaution, compared with the hazard and the interest at stake. Borges was charged with providing for the safety of a cargo worth over half a million dollars; the necessary precautions were no more than to extract from those on board whatever they knew; and not to treat the fire as a matter on which another's judgment might be conclusive. Indeed, he did think the fire important enough to go himself to the scene; and what he saw, coupled with what he should have learned, charged him with immediate action. Like the master, he should have broken the hatches of the "Reserve Bunker" on the 30th. If he did not know what was stowed there, he should have found out; a fire which had flamed intermittently for two days, had never been really quenched, and such a fire, so close to such a cargo, was pregnant with the most serious danger. Again, having taken over the removal of the coal, he should have seen that it was done with speed. The shore gang did not appear till the morning of the 31st. If it was dangerous to the cargo to leave the coal, that danger *665 was continuing and cumulative. Finally, even if he did in fact clear the bunker as fast as he should, what had happened was apparent by midnight on the 31st, more than seven hours before any fire was discovered in the stow. The condition of the bunker should have made it clear to any careful and competent person that the forward cargo must have been exposed to great heat over a substantial period; and that demanded that he should move at once. The measure in such cases is not what the owner knows, but what he is charged with finding out. He may, if he will, put his ship at hazard and answer as he can to his underwriters, but to the cargo he must not be indifferent; he is relieved of his absolute liability at common-law only upon condition that he exercises care measured by the occasion. For these reasons we cannot agree that Borges was any less slack or careless than the master.
This runs counter to one of the findings of fact, so named; but a finding of negligence is not a finding of fact which must be "clearly erroneous" to be subject to review.[4] It sets a standard of conduct, which while it is applicable only to the concrete situation, involves a choice between, and an appraisal of, two contrasted values the needed precaution and the possible damage. It is true that, when the wrong is not deliberate, the occurrence of the loss or damage by hypothesis involves a factor of probability and it may be argued that probability is a question of fact. Even so, after the damage has been discounted by the risk, the decision involves a comparison of the contrasted values: the necessary precautions and the stake; and that in turn demands the setting of a standard, a norm, an imperative, which is the usual hallmark of a jural act. Certainly such a decision is not like a decision of fact uncolored by any element of choice or fiat. We are therefore free to exercise our own judgment upon Borges's conduct and we hold that he was negligent both in failing to take quicker action to examine the cross bunker, in failing to break the hatches in the "Reserve Bunker" on the 30th, and again in so failing as soon as the condition of the cross bunker became visible, or should have become visible, had proper speed been used. That being true, it is not important whether some of the damage had been done before Borges failed in his duty; any more than whether such preceding damage may have been one of the causes for the fire in the stow. If the owner would free itself from liability for such damage the doctrine of The Vallescura[5] imposes upon it the hard burden of proving how much was not caused by the wrong, a burden whose discharge ordinarily carries such small hope of success that it may not care to make the attempt. Be that as it may, the fire in the "Reserve Bunker" was the cause of all the resulting water damage, and we need not go into the question of the seaworthiness of the "Pocone's" bulkheads.
Decree reversed; cause remanded.
NOTES
[1] Title 46 U.S.C.A. § 182.
[2] Craig v. Continental Insurance Co., 141 U.S. 638, 646, 12 S. Ct. 97, 35 L. Ed. 886; Consumers Import Co. v. Kawasaki Kisen Kabushiki Kaisha, 2 Cir., 133 F.2d 781, 784.
[3] Sanbern v. Wright & Cobb Lighterage Co., D.C., 171 F. 449, 475, affirmed 2 Cir., 179 F. 1021; In re P. Sanford Ross, D.C., 204 F. 248; The Rambler, 2 Cir., 290 F. 791; Arkell & Douglas v. United States, 2 Cir., 13 F.2d 555, 557; In re Pennsylvania R. Co., 2 Cir., 48 F.2d 559, 563; In re New York Dock Co., 2 Cir., 61 F.2d 777; The Doris Kellogg, D.C., 18 F. Supp. 159, 168, affirmed 2 Cir., 94 F.2d 1015.
[4] Sidney Blumenthal & Co. Inc. v. Atlantic Coast Line R. Co., 2 Cir., 139 F.2d 288, 290.
[5] 293 U.S. 296, 55 S. Ct. 194, 79 L. Ed. 373. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645065/ | 994 So. 2d 316 (2008)
GOMEZ
v.
GIBRALTAR PRIVATE BANK & TRUST CO.
No. 3D08-949.
District Court of Appeal of Florida, Third District.
July 7, 2008.
Decision without published opinion. Cert.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558397/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-19-00189-CR
Victor Manuel PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR6059
Honorable Velia J. Meza, Judge Presiding
BEFORE JUSTICE CHAPA, JUSTICE RIOS, AND JUSTICE RODRIGUEZ
In accordance with this court’s opinion of this date, the trial court’s judgments of
conviction are AFFIRMED.
SIGNED August 19, 2020.
_____________________________
Luz Elena D. Chapa, Justice | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1541230/ | 344 B.R. 193 (2006)
In re Jule A. GUIDO, Debtor.
No. 05-40562-HJB.
United States Bankruptcy Court, D. Massachusetts.
June 9, 2006.
*194 George R. Desmond, Framingham, MA, for Debtor.
MEMORANDUM OF DECISION
HENRY J. BOROFF, Bankruptcy Judge.
Before this Court is the "Debtor's Motion to Require Trustee to Abandon Burdensome Property" filed by Jule A. Guido (the "Debtor"). The case presents yet another gnarl in a long line of knotty problems relating to the intersection between the Bankruptcy Code[1] and the Massachusetts Homestead Statute. The permutation now before the Court is this: if a mortgage is 1) executed by a debtor before she records a declaration of homestead, but 2) recorded after the declaration of homestead is recorded, and 3) avoided, but preserved for the benefit of the estate by the Chapter 7 trustee under §§ 547 and 551 of the Bankruptcy Code, is the mortgage superior or inferior in priority to the debtor's homestead exemption? The Debtor argues that the homestead exemption is first in right, and, therefore, there is no equity for the estate. David M. Nickless, the Chapter 7 trustee (the "Trustee"), disagrees.
I. FACTS & TRAVEL OF THE CASE
The material facts are undisputed. On March 18, 1994, the Debtor took title to residential property located at 2 Mellon Street in Hopedale, Massachusetts (the "Residence"). She financed the purchase with a mortgage from Milford Federal Savings and Loan. The loan balance stands at approximately $63,000.00. On March 31, 1997, the Debtor borrowed an additional $55,000.00 from Diversified-Coolidge Realty Corporation ("Diversified"), and delivered to that lender a promissory note (the "Note") and second mortgage (the "Second Mortgage") on the Residence to secure repayment. Diversified failed, however, to record the Second Mortgage in the Worcester County Registry of Deeds (the "Registry of Deeds") at that time.
At some later point, the Debtor defaulted on her payments to Diversified, which led Diversified to file suit against her in state court on the Note. In August of 2003, Diversified recovered a default judgment and the state court subsequently issued an execution against the Debtor in the amount of $79,962.60. On March 19, 2004, Diversified levied on that execution by recording it in the Registry of Deeds, thereby acquiring a judicial lien on the Residence (the "Judicial Lien"). On July 1, 2004, the Debtor responded by recording a Declaration of Homestead on the Residence, pursuant to G.L. c. 188, § 1 (the "Massachusetts Homestead Statute"). Later *195 still, on November 10, 2004, Diversified recorded the Second Mortgage at the Registry of Deeds.
The Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on February 7, 2005 (within 90 days of the recording of the Second Mortgage). In Schedule C of her petition, she claimed an exemption in the Residence, pursuant to the Massachusetts Homestead Statute, in the amount of $500,000 (the "Homestead Exemption"). The Debtor valued the Residence in her Schedules at $450,000.
In May of 2005, the Trustee filed an adversary proceeding against Diversified, seeking to avoid the `Second Mortgage as a preferential transfer, pursuant to § 547(b) of the Bankruptcy Code.[2] Although Diversified filed an answer to the Trustee's complaint, it shortly thereafter joined with the Trustee in an Agreement for Judgment, which was approved by this Court at a hearing in October of 2005. That Agreement for Judgment provides:
Now come David M. Nickless, Trustee and plaintiff, and Diversified Coolidge Realty Corp, defendant, and agree that judgment may enter in the above matter avoiding the mortgage recorded by Diversified Coolidge Realty Corp on November 10, 2004 and preserving the mortgage position for the benefit of the bankruptcy estate.
At the same hearing, the Court allowed the Debtor's motion to avoid the Judicial Lien, pursuant to 11 U.S.C. § 522(f)(1). The parties explained that the reason for Diversified's acquiescence to judgment in the adversary proceeding was that Diversified held the lion's share of the unsecured claims against the Debtor. Accordingly, notwithstanding the avoidance of its Second Mortgage and Judicial Lien, the preservation of the Second Mortgage for the bankruptcy estate in effect preserved most of the value of the Second Mortgage for the benefit of Diversified.[3]
On January 10, 2006, the Debtor filed the instant motion requesting the Court to compel the Trustee to abandon the Second Mortgage. The Trustee opposes.
II. POSITIONS OF THE PARTIES
The Debtor maintains that the Second Mortgage is subordinate in right to her Homestead Exemption because the Second Mortgage was recorded subsequent to the recording of her Declaration of Homestead. She argues that because the equity in the Residence, even without consideration of the first mortgage, is less than the *196 Homestead Exemption of 8500,000, the "[Second Mortgage] now preserved for the benefit of the estate by the trustee is burdensome to the estate or is of inconsequential value and benefit to the estate," and should be abandoned pursuant to § 554(b) of the Code.[4]
The Debtor submits, alternatively, that preserving the priority of the lien represented by the Second Mortgage would conflict with § 522(c) of the Bankruptcy Code.[5] She reminds the Court that, although the Massachusetts Homestead Statute contains an exception for debts "contracted" before recordation of the Declaration of Homestead,[6] that exception has been declared by the First Circuit Court of Appeals to be preempted by § 522(c), which shields exempt property of the estate from liability for any debts that arose prior to the commencement of a bankruptcy case. Patriot Portfolio, LLC v. Weinstein (In re Weinstein), 164 F.3d 677, 683 (1st Cir.1999). The Debtor urges that because the Second Mortgage was both contracted before she recorded her Declaration of Homestead and arose prior to the commencement of her bankruptcy case, the Massachusetts Homestead Statute and § 522(c) are at odds and the former is, thus, preempted.
The Trustee contends that when the Second Mortgage was avoided, it was preserved for the benefit of the estate, pursuant to § 551, and that he assumed the secured position formerly held by Diversified. The Trustee distinguishes Weinstein, as it relates to a non-consensual debt avoidable by the debtor under § 522(f). The Trustee maintains that without a conflict between the Bankruptcy Code and the Massachusetts Homestead Statute, the latter governs. Because the Second Mortgage was executed prior to the execution of the Declaration of Homestead, the Trustee submits that it is unaffected by the Debtor's Homestead Exemption as a prior contracted debt, pursuant to G.L. c. 188, § 1(2).
III. DISCUSSION
The extent of a debtor's interest in property is generally governed by state law. NTA, LLC v. Concourse Holding Co., LLC, 380 F.3d 523, 528 (1st Cir.2004) *197 (citing, inter alia, Butner v. U.S., 440 U.S. 48, 54, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1978)). However, where state law is in direct conflict with the provisions of the Bankruptcy Code, the Supremacy Clause of Constitution dictates that state law be preempted. See US. Const. art. VI, cl. 2; Summit Inv. and Dev. Corp. v. Leroux, 69 F.3d 608, 610 (1st Cir.1995) ("federal preemption under the Supremacy Clause . . . will be found only if . . . we are persuaded that the federal and state statutes, by their very terms, cannot coexist").
The facts here present three issues: 1) may the Debtor actually exempt the Second Mortgage itself; 2) if the Second Mortgage may not be exempted by the Debtor under state or federal law and is an asset of the estate, does § 522(c), as interpreted by Weinstein and its progeny, nonetheless protect the equity of the Residence from the effect of the Second Mortgage; and 3) if the Debtor may not exempt the Second Mortgage and § 522(c) offers the Debtor no protection, what is the relative priority between the Second Mortgage and the Homestead Exemption.
The first of these questions whether the Debtor may exempt the Second Mortgage is easily disposed of. The Second Mortgage was successfully avoided by the Trustee under § 547(b) and is of to value to Diversified. But neither is it of value to the Debtor. The Bankruptcy-Code provides for the automatic preservation of avoided transfers for the benefit of the estate:
Any transfer avoided under section 522, 544, 545, 547, 548, 549, or 724(a) of this title, or any lien void under section 506(d) of this title, is preserved for the benefit of the estate but only with respect to property of the estate.
11 U.S.C. § 551.
As set forth in § 551 (and pursuant to the Agreement for Judgment, for good measure), the Second Mortgage was preserved "for the benefit of the estate." In contemplating the interplay between § 551 and the exemptions available under the Bankruptcy Code, courts have noted that the only way for a debtor to claim an exemption in property that has been preserved for the benefit of the estate is through § 522(g) of the Code. See, e.g., In re Dipalma, 24 B.R. 385, 387 (Bankr. D.Mass.1982) ("[o]nce the lien has been avoided by the trustee, the debtor must come within . . . § 522(g) . . . in order to avoid the operation of § 551"); Kepler v. Weis, 92 B.R. 816, 820-21 (Bankr. W.D.Wis.1988) ("a transfer of otherwise exempt property, which has been avoided under either section 547 or 548, is brought into the bankruptcy estate by section 551. Section 522(g) provides the exclusive mechanism for a debtor to assert his exemption rights after the trustee has exercised his avoidance powers") (emphasis supplied).
There is no opportunity for the Debtor to claim any benefit arising from § 522(g) of the Code. That section provides:
Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property that the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or 553 of this title, to the extent that the debtor could have exempted such property under subsection (b) of this section if such property had not been transferred, if
(1) (A) such transfer was not a voluntary transfer of such property by the debtor; and
(B) the debtor did not conceal such property; or
(2) the debtor could have avoided such transfer under subsection (f)(1)(B) of this section.
*198 11 U.S.C. § 522(g) (emphasis supplied). Because granting the Second Mortgage was the Debtor's voluntary act, 522(g) is of no assistance to her. See Collier on Bankruptcy ¶ 551.02[2], at 551-55 (15th ed.2005) ("generally, property that was voluntarily transferred by the debtor and recovered by the trustee . . . and preserved under section 551 cannot be exempted"); In re Ringham, 294 B.R. 204, 206 (Bankr. D.Mass.2003); In re Dipalma, 24 B.R. 385, 387(Bankr.D.Mass.1982) ("section 552(g)(1) does not allow the exemption of property recovered by the trustee if the transfer was a voluntary transfer by the debtor"). The Debtor is unable, then, to exempt the Second Mortgage.
Nor does the answer to the second question whether § 522(c) impacts the effect of the Homestead Statute upon the Second Mortgage run in the Debtor's favor. In Weinstein, the First Circuit Court of Appeals ruled that, to the extent that the Massachusetts Homestead Statute conflicts with the provisions of § 522(c), the former must give way. 164 F.3d at 682. In light of Weinstein, it is necessary to determine whether a conflict exists on the facts of this case. This Court can find none. The Homestead Statute provides in relevant part:
Property which is a subject to a mortgage executed before an estate of homestead was acquired therein, or executed afterward and containing a release thereof, shall be subject to an estate of homestead, except as against the mortgagee and those claiming under him, in the same manner as if there were no such mortgage.
G.L. c. 188, § 6 (emphasis supplied).
Here, pursuant to § 551, the rights of the mortgagee have been preserved for the benefit of the estate. Among the debts that are excepted from the protection of a debtor's exception under § 522(c) is:
(2) a debt secured by a lien that is
(A)(i) not avoided under subsection (f) or (g) of this section or under section . . . 547 . . . of this title . . .
11 U.S.C. § 522(c)(2)(A)(i).
As between the Debtor and the Trustee, the Second Mortgage has not been avoided, but has been preserved for the estate by § 551. Accordingly, § 522(c) provides the Debtor with no greater protection from the Trustee than the Debtor would have had from a mortgagee under nonbankruptcy law.
And, finally, as to the third question the relative priority of the Second Mortgage and the Homestead Exemption it is clear that the Second Mortgage, unhampered by § 522(c), has priority under Massachusetts law over the Declaration of Homestead notwithstanding the latter's earlier recordation. It is well settled that, while the Trustee assumed the secured position formerly held by the lienholder, 551 did not elevate the priority of the avoided transfer. See Cullen v. Revere Copper and Brass, Inc. (In re John I. Paulding, Inc.), 76 B.R. 7, 8 (Bankr. D.Mass.1987). The lien enjoys only the priority which the Second Mortgage would have held under applicable state law. The Retail Clerks Welfare Trust v. McCarty (In re Van de Kamp's Dutch Bakeries), 908 F.2d 517, 520 (9th Cir.1990); Carvell v. Bank One, Lafayette, N.A. (In re Carvell), 222 B.R. 178 (1st Cir. BAP 1998); In re John I. Paulding, Inc., 76 B.R. at 8. The Second Mortgage remains recorded after the recording of the Declaration of Homestead.
But this Court has held, relying on supporting Massachusetts law, that a previously recorded declaration of homestead is subordinated to a subsequently recorded *199 mortgage, even if the mortgage contains no language which would expressly release or subordinate the homestead exemption, provided the mortgage contains words of grant and standard mortgage covenants. In re Desroches, 314 B.R. 19, 22 (Bankr. D.Mass.2004). In Desroches, this Court relied on Atlantic Savings Bank v. Metropolitan Bank and Trust, 9 Mass.App.Ct. 286, 400 N.E.2d 1290 (1980), in which the Massachusetts Appeals Court stated and held that the mortgage in that case, which was written in the statutory short form:
contained apt words of grant with mortgage covenants. Under our title theory, it constituted a deed of conveyance which transferred a fee interest to the bank, defeasible upon performance of the conditions stated therein. [Mortgagor's] execution of the mortgage, but-tressed by its covenants, conveyed his entire interest in the property to the bank, subject to defeasance, and effectively subordinated any homestead interest he possessed to the mortgage lien.
Desroches, 314 B.R. at 22 (emphasis in original) (quoting Atlantic Sav. Bank, 9 Mass.App.Ct. at 288, 400 N.E.2d 1290).
The Second Mortgage here meets the Desroches and Atlantic Savings Bank parameters. Massachusetts law provides the meaning and effect of the term "mortgage covenants:"
In a conveyance of real estate the words "mortgage covenants" shall have the full force, meaning and effect of the following words, and shall be applied and construed accordingly: "The mortgagor, for himself, his heirs, executors, administrators and successors, covenants with the mortgagee and his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons; and that the mortgagor and his heirs, successors or assigns, in case a sale shall be made under the power of sale, will, upon request,' execute, acknowledge and deliver to the purchaser or purchasers a deed or deeds of release confirming such sale; and that the mortgagee and his heirs, executors, administrators, successors and assigns are appointed and constituted the attorney or attorneys irrevocable of the said mortgagor to execute and deliver to the said purchaser a full transfer of all policies of insurance on the buildings upon the land covered by the mortgage at the time of such sale".
G.L. c. 183, § 19 (2000).
The precise phrase "mortgage covenants" does not appear in the Second Mortgage. Instead, the Second Mortgage provides the material covenants in a longer form. The Second Mortgage contains, inter alia, words of grant[7] as well as an explicit warranty of title, a representation of authority to grant the lien, and a promise to defend that warranty and representation.[8] Accordingly, the Second Mortgage *200 has superior priority of right over the previously recorded Declaration of Homestead.
In view of the foregoing, there is no conflict here between state and federal law. As between the Debtor and the Trustee, pursuant to § 551 of the Bankruptcy Code, the Trustee holds an unavoidable Second Mortgage against the Residence; and by virtue of its terms and Massachusetts law, the Second Mortgage enjoys priority over the Debtor's Declaration of Homestead. That priority provides value to the bankruptcy estate. The Second Mortgage should not be abandoned.
IV. CONCLUSION
For the foregoing reasons, the "Debtor's Motion to Require Trustee to Abandon Burdensome Property" is DENIED. An order in conformity with this Memorandum shall issue forthwith.
NOTES
[1] Unless otherwise stated, all statutory references are to Title 11 of the United States Code, §§ 101 et seq. (the "Bankruptcy Code" or the "Code").
[2] Section 547(b) provides:
Except as provided in subsection (c) of this section, the trustee may avoid ant transfer of an interest of the debtor in property
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made
(A) on or within 90 days before the date of the filing of the petition; or
(B) between 90 days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C. § 547(b).
[3] The only other unsecured creditor in the Debtor's schedules is Hartford Life BMS, whose claim is listed as $4,534. Based on the proportionate interests in the estate among two unsecured creditors, Diversified still stands to receive well over ninety percent of it claim, assuming the Second Mortgage is preserved, in its entirety, for the benefit of the estate.
[4] Section 554(b) provides:
On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
11 U.S.C. § 554(b).
[5] Section 522(c) states, in relevant part:
Unless the case is dismissed, property exempted under this section is not liable during or after the case for any debt of the debtor that arose, or that is determined under section 502 of this title as if such debt had arisen, before the commencement of this case, except
(1) a debt of a kind specified in section 523(a)(1) or 523(a)(5) of this tide;
(2) a debt secured by a lien that is
(A) (i) not avoided under subsection (f) or (g) of this section or under section 544, 545, 547, 548, 549, or 724(a) of this title; and
(ii) not void under section 506(d) of this title; or
(B) a tax lien, notice of which is properly filed . . .
11 U.S.C. § 522(c).
[6] Massachusetts General Laws chapter 188, § 1(2) provides in relevant part:
Said estate [for which a Homestead Declaration has been recorded] shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except in the following cases:
. . .
(2) for a debt contracted prior to the acquisition of said estate of homestead;
. . .
(Emphasis supplied).
[7] The second paragraph of the Second Mortgage provides, in relevant part:
Mortgagor has mortgaged, given, granted . . . and by these presents does mortgage, give, grant . . . unto mortgagee the real property . . . together with: all right, title, interest and estate of Mortgagor now owned, or hereafter acquired.
(Emphasis supplied).
[8] The Second Mortgage further provides, in relevant part:
Warranty of Title. Mortgagor warrants that Mortgagor has good title to the Mortgaged Property and has the right to mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm, pledge, assign and hypothecate the same and that Mortgagor possess [sic] an unencumbered fee estate in the Premises and the Improvements and that it owns the Mortgaged Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions shown in the title insurance policy insuring the lien of this Mortgage. Mortgagor shall forever warrant, defend and preserve such title and the validity and priority of the lien of this Mortgage and shall forever warrant and defend the same to Mortgagee against the claims of all persons whomsoever. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646133/ | 9 So.3d 616 (2009)
BUIE
v.
FLORIDA DEPT. OF CORRECTIONS.
No. 1D08-5940.
District Court of Appeal of Florida, First District.
May 21, 2009.
Decision without published opinion. Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1012319/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FREDERICK SHAFFER HIGGINBOTHAM,
III; STEPHANIE HIGGINBOTHAM,
Plaintiffs-Appellants,
v.
KCS INTERNATIONAL, INCORPORATED, No. 02-1527
t/a Cruisers Yachts; WINDLINE,
INCORPORATED; WAREHOUSE CREEK
YACHT SALES, INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CA-00-2764-MJG)
Argued: October 31, 2003
Decided: January 22, 2004
Before WILKINS, Chief Judge, and KING and
GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Chief Judge Wilkins and Judge King joined.
COUNSEL
ARGUED: Mark Thomas Mixter, LAW OFFICES OF MARK T.
MIXTER, Baltimore, Maryland, for Appellants. J. Christopher Bou-
2 HIGGINBOTHAM v. KCS INTERNATIONAL
cher, ALLEN, KARPINSKI, BRYANT & KARP, Baltimore, Mary-
land; Richard Lee Nilsson, BRIZENDINE & NILSSON, Timonium,
Maryland, for Appellees. ON BRIEF: Daniel Karp, ALLEN, KAR-
PINSKI, BRYANT & KARP, Baltimore, Maryland; Mary Malloy
DiMaio, MAHER & ASSOCIATES, Towson, Maryland, for Appel-
lees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
GREGORY, Circuit Judge:
I.
This is an appeal from the United States District Court for the Dis-
trict of Maryland (Garbis, J.). Appellants, Frederick Shaffer Higgin-
botham, D.D.S., and his wife Stephanie (collectively, the
"Higginbothams"), appeal the district court’s grant of summary judg-
ment for the appellees. The Higginbothams sued seeking compensa-
tion for injuries Dr. Higginbotham sustained while attempting to use
a broken swim ladder while on board his marina-docked yacht. Dr.
Higginbotham attempted to extend the swim ladder attached to his
boat and noticed that it was stuck. He nevertheless forced the ladder
to extend and, as a result, was thrown across the yacht and sustained
significant injuries. The Higginbothams sued the manufacturer of the
yacht, the manufacturer of the ladder, and the yacht broker, alleging
negligence, breach of warranty, and defective design.
The district court granted partial summary judgment for the yacht
manufacturer as to the negligence and breach of warranty claims, and
granted full summary judgment for the yacht broker and ladder manu-
facturer as to the loss of consortium, negligence, breach of warranty
and strict liability claims. After an evidentiary hearing, the district
court excluded the testimony of the Higginbothams’ sole expert
HIGGINBOTHAM v. KCS INTERNATIONAL 3
because his testimony was both unreliable and unscientific. The
expert sought to establish that the ladder was defective because it bent
under the pressure exerted by Dr. Higginbotham’s normal use of the
ladder. Alternatively, the expert alleged that the ladder suffered from
inherent metallurgical defects. After excluding the proffered expert
testimony, the district court concluded that the Higginbothams had
failed to produce adequate evidence to establish that a defect in the
ladder was a proximate cause of the bend. Thereafter, the district
court granted summary judgment for the yacht manufacturer as to the
remaining claims. The Higginbothams appealed. For the reasons dis-
cussed herein, we AFFIRM.
II.
This case arises out of injuries Dr. Higginbotham sustained in May
of 1991 while attempting to extend the swim platform ladder on a
yacht. The yacht at issue is a demo-model purchased by the Higgin-
bothams’ private corporation, which collects charter fees for private
charters. The ladder at issue is a three-rung white aluminum telescop-
ing ladder used to board the vessel from the water. Prior to Dr. Hig-
ginbotham’s purchase, the ladder had been used without incident in
the showroom by dealers and potential customers who desired to
board the yacht. On the day of the accident, Dr. Higginbotham
attempted to extend the ladder but it was "stuck or [it] hesitated"
before coming loose. J.A. at 1866. Dr. Higginbotham pulled hard on
the ladder and when the ladder freed itself, Dr. Higginbotham was
thrown backwards hitting his head, shoulder and back on the transom
and his hip on the swim platform of the yacht. Also, Dr. Higgin-
botham’s hand was lacerated by the metal ring attached to the ladder.
The Higginbothams brought suit in September 2002 against the
manufacturer of the yacht, KCS International Inc. ("KCS"), the yacht
broker, Warehouse Creek Yacht Sales, Inc. ("Warehouse Creek"), and
the manufacturer of the ladder, Windline Inc. ("Windline"), alleging
breach of express and implied warranties, negligence, strict liability
and loss of consortium. In November 2001, Warehouse Creek and
Windline filed separate motions for summary judgment. After a hear-
ing in February 2002, the district court granted Warehouse Creek’s
motion for summary judgment and granted in part Windline’s motion
for summary judgment. The court reserved its ruling on the remainder
4 HIGGINBOTHAM v. KCS INTERNATIONAL
of Windline’s motion pending a Daubert hearing to determine the
admissibility and adequacy of the Higginbothams’ proffered expert
testimony. After the Daubert hearing, the district court declared the
Higginbothams’ expert testimony inadmissible under Daubert. Con-
sequently, the court granted the balance of Windline’s motion for
summary judgment.
III.
We must first determine whether the district court properly
excluded the Higginbothams’ only expert testimony. This court
reviews the decision of a district court to admit or exclude evidence
for abuse of discretion. Westberry v. Gislaved Gummi AB, et. al., 178
F.3d 257, 261 (4th Cir. 1999)(citing General Elec. Co. v. Joiner, 522
U.S. 136, 139 (1997)).
The introduction of expert opinion testimony is governed by Fed-
eral Rule of Evidence 702, which provides, in pertinent part:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert ... may
testify thereto in the form of an opinion or otherwise.
FED. R. EVID. 702 (West 2002).
Expert testimony is admissible under Rule 702, then, if it concerns
(1) scientific, technical, or other specialized knowledge that (2) will
aid the jury or other trier of fact to understand or resolve a fact at
issue. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592
(1993). The first prong of this inquiry necessitates an examination of
whether the reasoning or methodology underlying the expert’s prof-
fered opinion is reliable—that is, whether it is supported by adequate
validation to render it trustworthy. Westberry, 178 F.3d at 261 (citing
Daubert, 509 U.S. at 590).
Ultimately, an expert’s testimony is admissible under Rule 702 if
it "rests on a reliable foundation and is relevant." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (internal quotation marks
HIGGINBOTHAM v. KCS INTERNATIONAL 5
omitted). The district court’s role in considering the admissibility of
expert testimony is that of a "gate-keeper," whose prime task is to
assess the reliability and relevancy of the proffered evidence. See id.
at 1174. As the gate-keeper, the district court’s inquiry is "a flexible
one" focusing on the "principles and methodology" employed by the
expert, not on the conclusions reached. Daubert, 509 U.S. at 594-95.
When making its initial determination of reliability, the trial judge
enjoys broad latitude to consider whatever factors bearing on validity
that the court finds to be useful; the particular factors will, however,
depend upon the unique circumstances of the expert testimony
involved. Kumho Tire Co., 526 U.S. 149-50.
As the gate-keeper, the district court must remember that due to the
difficulty of evaluating their testimony, expert witnesses have the
potential to "be both powerful and quite misleading." Daubert, 509 at
595 (internal quotation marks omitted). Thus, where the expert prof-
fer has a greater potential to mislead than to enlighten, that evidence
may properly be excluded. Westberry, 178 F.3d at 261 (citing United
States v. Dorsey, 45 F.3d 809, 815-16 (4th Cir. 1995)).
Under the above standard, we conclude that the district court prop-
erly excluded the testimony of the Higginbothams’ expert, Mr. Ken-
neth Court.1 The court concluded that Mr. Court’s testimony was not
based upon reliable methodology and, therefore, his conclusions were
inadmissible. The district court found that the Higginbothams had
presented "evidence adequate to support a finding that:
A. Sometime prior to May, 30 1999, when Dr. Higgin-
botham used the latter at issue, the ladder was bent by
some force.
B. The bend in the ladder was a proximate cause of the
accident and, thus, of the injuries to Dr. Higginbotham.
1
Mr. Court is a naval architect marine engineer. J.A. at 1109. The dis-
trict court qualified him as a mechanical engineer with knowledge of lad-
ders in a marine context. J.A. at 1870. He is not a metallurgist, J.A. at
1116, and has no special training in the design of swim ladders. J.A. at
1242-43.
6 HIGGINBOTHAM v. KCS INTERNATIONAL
J.A. at 1869. The court also considered Plaintiffs’ alternative argu-
ments that the ladder was bent by "normal ladder use" or due to "de-
fective design." The district court, thereafter, entered summary
judgment against the Higginbothams because there was no evidence
that the alleged "defect in the ladder was a proximate case of the
bend." J.A. at 1869-70. We discuss the gravamen of the Higgin-
bothams’ arguments in seriatim below.
A. Normal Ladder Use
The district court found inadmissible Mr. Court’s expert opinion
that the bend was caused by Dr. Higginbotham’s normal use of the
ladder. The court also found that "even if admitted, the said opinions
would not amount to evidence adequate to establish the existence of
a defect in the ladder or a causative relationship between any defect
and the bend at issue." J.A. at 1870.
The district court properly rejected Mr. Court’s analysis which is
patently laden with flaws. Most notably:
Mr. Court agrees with [defense expert] Dr. Richard that the
static forces applied to the ladder from normal use by Dr.
Higginbotham (assumed to be a 200 pound individual)
would result in an applied force of less than half of that
needed to cause this bend.
J.A. at 1871 (emphasis added). Mr. Court himself concedes that Dr.
Higginbotham’s normal use could not have caused the bend. Indeed,
"by the Daubert hearing, Mr. Court had changed his opinions for a
third time to the point where both experts agreed that there would
only be 37.9% of the force necessary to bend the ladder visited upon
it by a 200 pound man ... It would take over 62% more than that to
bend it." Brief of Appellees at 21 (citing J.A. at 1804, 1807-08, 1811-
12)(emphasis added). Mr. Court then, without any valid basis, "sim-
ply jumps to the conclusion that the dynamic component of the force
must have been sufficient to cause the bend." J.A. at 1871.
Mr. Court reached his conclusion without performing any testing
on the actual ladder at issue or even an exemplar ladder. J.A. at 1815-
HIGGINBOTHAM v. KCS INTERNATIONAL 7
17. And, his methodology was clearly speculative. During his deposi-
tion, Mr. Court attempted to explain his methodology, but conceded
that it rested upon "assumptions," not science.
Q. Mr. Court, you don’t know the number of pounds that
were visited by Dr. Higginbotham at any point on this
ladder other than the fact that they are in excess of
some point; is that right?
***
A. To do an exact model of a man loading a ladder, you
would have to know what he did exactly at that time,
and that modeling is objected to unless your model is
the exact same as what really happened. Any time you
start putting in assumptions, you open things. So what
I did was I pointed out my model of a hypothetical
man, how the load would occur? I did a calculation of
the ladder and what would cause it to bend, and then
I compared the two and said, there is enough slack for
the dynamics to pick up the difference, and there is
where I am.
J.A. at 1352-53. Similarly, Mr. Court can only speculate as to when
the ladder was bent. J.A. at 1182. He has done no calculations or
drawings as to the loads that would be visited upon the ladder if the
ladder were used to board the boat out of the water. J.A. at 1201-03.
He did not calculate the yield strength the ladder would require in
order for it not to bend. J.A. at 1240-41. And, he did not take buoy-
ancy into account, J.A. at 1783, 1790-91, even though he admits that
buoyancy accounts for "some percentage" of the force visited upon
the ladder. Id. Yet, a swim ladder is most often used in water where
buoyancy is surely a factor.
In any event, Mr. Court’s calculations concerning the force he
assumes Dr. Higginbotham would have applied to the ladder are
insufficient in that Mr. Court completely failed to notice that Dr. Hig-
ginbotham’s ladder had handholds. J.A. at 1828-31. Thus, when he
calculated the force visited upon the ladder by Dr. Higginbotham—or
actually, a 200 pound hypothetical man—he did not even consider the
8 HIGGINBOTHAM v. KCS INTERNATIONAL
fact that the absence of a handhold would require "Dr. Higginbotham
[to lean] much farther back than he would need to, and [to put] much
more force on the ladder," and that the absence of a handhold "puts
more on the dynamic force," which admittedly "cut[s] the number
down again." J.A. at 1830-31.
Each of these flaws alone casts sufficient doubt upon the reliability
of Mr. Court’s methodology. This is particularly true since "the pro-
ponent of the expert proffer bears the burden of establishing admissi-
bility by a preponderance of proof." Daubert, 509 U.S. at 592 n.10.
Considered in the aggregate, these flaws raise a high inference of
unreliability.
The flaws in the proffered expert testimony, however, cut much
deeper. Based upon Mr. Court’s testimony, there is no sufficient basis
upon which a reasonable juror could conclude that Dr. Higgin-
botham’s normal use of the ladder caused the ladder to bend. There
are too many alternate theories of causation for Mr. Court’s theory to
establish causation by a preponderance of the evidence. Most notably,
the swim ladder on the Higginbothams’ previous yacht was destroyed
while being docked by someone else because the yacht was not prop-
erly tied down and, as a result, it coasted back into the floating docks.
J.A. at 184-85. Indeed, the yacht at issue was docked in Maryland and
used by others as a charter vessel while the Higginbothams were
home in West Virginia during the off-season. Thus, the district court
properly noted that:
it is undisputed that the ladder could have been bent as a
result of force from contact between the extended ladder and
an object such as a pier, another boat, etc. Such contact
could occur without the knowledge of Dr. Higginbotham. Of
course, it is not the Defendant’s burden to prove that this (or
some other) "innocent" force caused the bend. Rather, it is
the burden of Plaintiffs to present evidence from which a
jury could find that, more likely than not, the bend was
caused by Dr. Higginbotham’s normal ladder use.
J.A. at 1871-72.
Given the court’s tenable objections to Mr. Court’s evidence, and
his reliance upon "‘logical’ reasoning that because there was a bend
HIGGINBOTHAM v. KCS INTERNATIONAL 9
in the metal, whatever dynamic force was necessary must have been
contributed by Dr. Higginbotham’s ordinary ladder use," J.A. at 1871,
the district court’s exclusion of Mr. Court’s expert testimony was not
an abuse of discretion. Mr. Court’s unreliable conclusions, clearly
have the potential to "be both powerful and quite misleading." Dau-
bert, 509 U.S. at 596.
B. Defective Design
The district court correctly concluded that "[e]ven if Plaintiffs were
able to prove that the bend in the ladder was caused by Dr. Higgin-
botham’s normal use, they would not be able to prove an actionable
defect in the ladder." J.A. at 1872. That is because "[t]here is no evi-
dence establishing any applicable design standards" and because Mr.
Court’s expert opinion that "the ladder was defective in design is
manifestly inadmissible." Id.
Under Maryland law, the primary issue in a design defect case "is
whether a manufacturer, knowing the risks inherent in his product,
acted reasonably in putting it on the market." Singleton v. Int’l Har-
vester Co., 685 F.2d 112, 115 (4th Cir. 1981) (citing Phipps v. Gen-
eral Motors Corp., 278 Md. 337, 363 A.2d 955 (1976)(adopting strict
liability in tort)). In design defect cases, Phipps directs courts to bal-
ance:
(1) the usefulness and desirability of the product;
(2) the availability of other and safer products to meet the
same need;
(3) the likelihood of injury and its probable seriousness;
(4) the obviousness of the danger;
(5) common knowledge and normal public expectation of
the danger (particularly for established products);
(6) the avoidability of injury by care in use of the product;
and
10 HIGGINBOTHAM v. KCS INTERNATIONAL
(7) the ability to eliminate danger without seriously
impairing the usefulness of the product.
Singleton, supra (citing Phipps, 278 Md. at 345 n.4, 363 A.2d at 959
n.4).
The fact that another design alternative exists—even a safer one—
standing alone is patently insufficient. The district court correctly
concluded, therefore, that "[a]n admissible opinion as to a design
defect requires more than an ability to hypothecate a design that
would have avoided the accident at issue." J.A. at 1873 (citing Tokio
Marine & Fire Ins. Co., Ltd. v. Grove Manuf’g Co., 958 F.2d 1169,
1174 (1st Cir. 1992)("[An] opinion on whether or not there is a design
defect call[s] in essence, for meaningful cost-benefit analysis. This
required, in turn, considerable familiarity with the device [at issue]
with [device] design, manufacture and marketing; with applicable
industry standards, and so on.").
As stated above, Mr. Court has no training in metallurgy nor does
he have any training in ladder design. Outside of this case, Mr. Court
has no familiarity with the ladder at issue or swim ladders in general.
In fact, he has never manufactured a swim ladder or taken part in
manufacturing one. J.A. at 1242-43. Yet, his "proffered design defect
opinion is based upon his conclusion that a stronger ladder could have
been built using steel rather than aluminum." J.A. at 1873. Mr. Court,
however, failed to establish that aluminum—as opposed to steel—is
an inadequate material. And, he offers no admissible expert opinion
as to the other factors required under Maryland law. Nor is he quali-
fied to do so.
Moreover, the district court properly rejected Mr. Court’s alterna-
tive and unsupported conclusion that if there was no design defect,
there must have been a defect in the metal used to make the ladder.
As discussed above, Mr. Court is not a metallurgist and has no special
training as a materials engineer. Consequently, his opinion is invalid
and the court below correctly concluded that "there is not the slightest
reason to suspect a metallurgical defect in view of the extensive use
of the ladder without incident prior to Dr. Higginbotham’s acquisition
of the boat."2
2
As discussed above in the facts, Dr. Higginbotham’s boat was used
as a demo model before he purchased it. Sales staff and customers fre-
HIGGINBOTHAM v. KCS INTERNATIONAL 11
Accordingly, the district court did not abuse its discretion by
excluding Mr. Court’s expert testimony on defective design. Because
the entirety of Mr. Court’s expert testimony was properly excluded,
summary judgment on all claims was clearly proper. We need not
reach the remaining negligence and strict liability claims separately
because the elements of proof are the same whether the claim be for
strict liability or negligence.3 The Higginbothams failed to establish
both a design defect and causation and, therefore, all of their negli-
gence, breach of warranty and strict liability claims fail.
IV.
In sum, the district court’s exclusion of Mr. Court’s expert testi-
mony was not an abuse of discretion. Consequently, the Higgin-
bothams failed to present any competent evidence of a design defect,
failed to establish causation, and failed to establish negligence on the
part of any defendant. "If no material factual disputes remain, sum-
mary judgment should be granted against a party who fails to make
a showing sufficient to establish the existence of an element essential
to that party’s case and on which the party bears the burden of proof
at trial." A Fisherman’s Best, Inc. v. Recreational Fishing Alliance,
310 F.3d 183, 190 (4th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317 (1986)). Accordingly, the district court’s grant of sum-
mary judgment on all claims as to all defendants was not erroneous.
AFFIRMED
quently used the ladder without event while it was in dry dock.
3
Hood v. Ryobi N. America, Inc., 17 F. Supp. 2d 448, 450 (D. Md.
1998), aff’d,181 F.3d 608 n.1 (4th Cir. 1999)("The elements of proof are
the same whether the claim be characterized as one for strict liability or
negligence ... or breach of warranty.")(citing Singleton v. Int’l Harvester
Co., 685 F.2d 112, 117 (4th Cir. 1981); Watson v. Sunbeam Corp., 816
F. Supp. 384, 387 n.3 (D. Md. 1993); Tauber v. Nissan Motor Corp.,
USA, 671 F. Supp. 1070, 1073 (D. Md. 1987); Jensen v. American
Motors, 50 Md. App. 226, 437 A.2d 242, 247 (Md. Ct. Sp. App. 1981);
Frericks v. General Motors Corp., 274 Md. 288, 336 A.2d 118 (1975)). | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919816/ | 660 So.2d 413 (1995)
AVIS RENT A CAR SYSTEM, INC., Appellant,
v.
MONROE COUNTY, etc., et al., Appellees.
No. 95-6.
District Court of Appeal of Florida, Third District.
September 20, 1995.
*414 Taylor Brion Buker & Greene and R. Bruce Wallace, for appellant.
Morgan & Hendrick and Wayne LaRue Smith; Katz Kutter Haigler Alderman Marks Bryant & Yon and Paul R. Ezatoff; Hinshaw & Culbertson and Eric G. Belsky and Manuel A. Cuadrado; Mershon Sawyer Johnson Dunwody & Cole and William J. Dunaj and James A. Weinkle, for appellees.
Before HUBBART, JORGENSON and GERSTEN, JJ.
JORGENSON, Judge.
Avis Rent A Car System, Inc., appeals a final order granting summary judgment in favor of defendants on Avis's complaint for declaratory relief. We affirm.
Avis operates a car rental concession at the Key West International Airport under a written concession agreement with Monroe County, executed in 1985 and later extended in term by addenda. A second car rental company, Dollar, was also granted a concession in 1985. The 1985 concession agreements were entered into following competitive bidding. The concession agreement executed by Avis and the county provided that Avis's concession right was non-exclusive:
Lessor desires to grant Lessee a non-exclusive right to operate an automobile rental concession at and from Key West International Airport.
....
Lessor hereby leases to Lessee for its non-exclusive use the rental car counter located in the terminal, Key West, Monroe County, Florida.
In 1993, Monroe County granted two more concessions, bringing the number of car rental companies at the Key West airport to four. Avis then brought this action, claiming that its agreement with the county limits car rental concessions at the Key West airport to three. Avis argued that the "non-exclusive" term of the concession agreement is ambiguous, but is given precise content by the bid documents supplied to potential bidders along with the concession agreement contract form in 1985. These bid documents provided that space constraints at the airport would restrict car rental concessions to three. Avis claims that this bid document reference to a three-concession restriction is part of its agreement with the county and limits the county's right to grant concessions. The lower court rejected the bid documents as extrinsic evidence barred under the parol evidence rule. We agree.
As an initial matter, Avis does not dispute that the concession agreement is a valid integration of its agreement with the county.[1] Terms of a valid, integrated, written contract can be varied by extrinsic evidence only to the extent that the terms are ambiguous and are given meaning by the extrinsic evidence. J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484 (Fla. 1957); Seaway Yacht Sales, Inc. v. Brunswick Corp., 242 So.2d 192 (Fla. 3d DCA 1970); Lanzalotti v. Cohen, 113 So.2d 727 (Fla. 3d DCA), cert. denied. 116 So.2d 772 (Fla. 1959). The concession agreement provides that Avis's concession right is non-exclusive and is otherwise silent regarding the county's right to grant further concessions. Used in this context, the term non-exclusive poses no material ambiguity. It means simply that Monroe County's right to enter into additional agreements is not limited or affected by its agreement with Avis.
We have previously held that a written contract which provided that a concession right was "non-exclusive" could at once also limit the total number of concessionaires by another express provision. Dade County v. Dobbs Houses, Inc., 283 So.2d 886, 887 (Fla. 3d DCA 1973) (nothing that an airport restaurant service providers' exclusive contract had been changed to "a non-exclusive basis which provided for a limited number of competitors to provide basically the same restaurant and *415 related services... .").[2] It also follows, however, that an integrated contract that expresses no such limit and provides for non-exclusivity is unambiguous, leaving the right to grant further concessions unlimited and undisturbed.
Including the term "non-exclusive" strengthened, rather than weakened, the county's position. Avis's argument that the term presents a latent ambiguity, see Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544 (Fla. 1st DCA 1973), is misplaced. While in the abstract, "non-exclusive" is susceptible to multiple interpretations, in the context of a concession contract that itself contains no limitation on the total number of concessionaires its use is unambiguous nullifying prior, extrinsic references to limitations.
Avis's remaining points lack merit.
Affirmed.
NOTES
[1] In fact, the proposal instructions, one of the bid documents relied upon by Avis, provide that "[t]he Concession Agreement as executed will be the binding document."
[2] Dobbs recognizes the use of the term non-exclusive in a contract in conjunction with an express limitation on the number of competitors to mean that the concession right is only partially exclusive. Depending on context and circumstances, a right may be either wholly or partially exclusive. See Management of the Desert, Inc. v. Palm Springs Recycling Ctr., Inc., ___ Cal. App.4th ___, 11 Cal. Rptr.2d 676, 684 (applying statute giving city a right to grant either a "partially exclusive or wholly exclusive franchise, contract, license, permit, or otherwise... ."), rev. granted and opinion superseded, ___ Cal.4th ___, 13 Cal. Rptr.2d 850, 840 P.2d 955 (1992), aff'd, 7 Cal.4th 478, 28 Cal. Rptr.2d 461, 869 P.2d 440 (1994). Compare Randall Indus., Inc. v. Lee County, 307 So.2d 499 (Fla. 2d DCA 1975) ("exclusive" license and space lease at airport granted to each of two taxicab companies a partially exclusive license) with Black's Law Dictionary 569 (6th ed. 1990) (defining exclusive, in part, as: "Sole. Shutting out; debarring from interference or participation; vested in one person alone" wholly exclusive (emphasis added)). The context of the present concession agreement, which is silent as to limitations, implies that "non-exclusive" means that the concession right is neither wholly nor partially exclusive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566244/ | 34 So. 3d 19 (2010)
PAREZ
v.
STATE.
No. 5D09-2904.
District Court of Appeal of Florida, Fifth District.
April 27, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541238/ | 344 B.R. 407 (2006)
In re BALTIMORE MARINE INDUSTRIES, INC., Debtor.
No. 03-80215 JS.
United States Bankruptcy Court, D. Maryland.
June 8, 2006.
*408 *409 Stephen B. Gerald, Whiteford, Taylor & Preston, Baltimore, MD, for Debtor.
MEMORANDUM OPINION DENYING THE MOTION OF BALTIMORE COUNTY, MARYLAND, FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM
JAMES F. SCHNEIDER, Bankruptcy Judge.
Baltimore County, Maryland, filed the instant motion for allowance and payment of an administrative expense claim against the proceeds of sale of all of the Chapter 11 debtor's assets, to which the debtor's liquidating agent objected. For the reasons stated, the administrative claim will be disallowed.
FINDINGS OF FACT
On June 11, 2003, the instant Chapter 11 case was Med by Baltimore Marine Industries, Inc. ("BMI"), a closely-held Delaware corporation that owned and operated a shipyard located in Sparrows Point, Baltimore County, Maryland. The shipyard comprised 226 acres with docks, piers, basins, cranes and shops. Among the debtor's assets were a variable large, crude. carrier-capable drydock ("VLCC"), and a floating dock, employed in the multiple repair, conversion and construction of large seagoing vessels.
The Sparrows Point shipyard was built by Maryland Steel Company in 1889 and bought by Bethlehem Steel Company in 1917. During World War II, the shipyard was one of the leaders in this nation's war effort, producing an unprecedented number of ocean-going vessels, including tankers, cargo and passenger ships for military use. In those years, the shipyard was one of the State's largest employers with more than 20,000 workers producing ships on a daily basis around the clock.
Bethlehem Steel sold the shipyard to Veritas Capital of New York for $16 million, at which time BMI was established to operate the facility. The company planned to engage in ship repair but lack of business forced it to layoff hundreds of employees.
On October 24, 2003, the debtor-in-possession filed a motion for the approval of the public sale of all of its real and personal property free and clear of liens and encumbrances. [P. 334]. On October 30, 2003, the motion was granted by order. [P. 343]. On November 5, 2003, an auction of all estate assets was conducted and Barletta Willis Investments, LLC ("Barletta Willis"), was the successful buyer for a total bid of $11,250,000 [P. 538]. On March 4, 2004, the sale closed. BMI did not file a liability-transfer report indicating that it had transferred ownership of personal property during the tax year, pursuant to Maryland Tax-Prop. Code § 10-402(b) (2004).[1] After the sale, Barletta *410 Willis assigned its rights in the property to SPS Limited Partnership. The shipyard currently serves as a repair and demolition site for commercial and military vessels.
Meanwhile, on September 9, 2003, Baltimore County, Maryland, by Deputy County Attorney John E. Beverungen, Esquire, filed an application for administrative expenses [P. 289], unrelated to the administrative claim which is the subject of this opinion. This incontestable fact is relevant to the present dispute because Mr. Beverungen, on behalf of Baltimore County, has filed electronic pleadings and in turn has received electronic notice of every pleading filed in the instant Chapter 11 case since September 9, 2003.[2]
On April 14, 2004, BMI and the Official Committee of Unsecured Creditors filed a Joint Plan of Liquidation [P. 702]. With respect to administrative claims, the plan provided, on page one, as follows:
1.1. "Administrative Bar Date" means forty-five (45) days after the Effective Date and is the date by which applications for allowance of Administrative Expense Claims incurred through the Confirmation Date must be filed with the Court or be forever barred and discharged. Notice of confirmation of the Plan shall be deemed sufficient and adequate notice of the Administrative Bar Date.
Plan, Art. I, § 1.1 [P. 702]. The plan further provided, as follows:
8.8. Deadline for Filing Administrative Expense Claims. Notwithstanding § 503(a) of the Bankruptcy Code, any person or entity seeking the allowance or payment of an Administrative Expense Claim under § 503 of the Bankruptcy Code any/or any Professional Person or firm retained with approval by order of the Court seeking compensation in this Chapter 11 case pursuant to §§ 330 or 503(b) of the bankruptcy Code, shall be required to file on or before the Administrative Bar Date an application for the allowance and/or payment of an Administrative Expense Claim including, without limitation, an application for the final compensation of a Professional Person and reimbursement of expenses. Any such Administrative Expense Claim not filed by the Administrative Bar Date shall be forever barred and discharged. Objections to any such application shall be filed on or before a date to be set by the Court. The provisions of this paragraph are not intended to limit or expand the ability of the Court to allow the payment of compensation *411 to Professional Persons for services performed after the Confirmation date; all such compensation remaining subject to approval by the Court.
Pla, Art. VIII, § 8.8. [P. 702].
On June 25, 2004, the Court [Derby, J.], confirmed the plan by order [P. 800]. Pursuant to the plan and the order of confirmation, Alan M. Grochal, Esquire, was appointed liquidating agent with authority to distribute the sale proceeds to creditors in accordance with the priorities set forth in the Bankruptcy Code. The record reflects that Mr. Beverungen timely received a copy of the plan, disclosure statement and the order of confirmation via electronic notice on the dates they were filed.
No appeal having been filed, the confirmation order became final on July 6, 2004, and, therefore, the effective date of the plan was July 21, 2004.[3] Forty-five days thereafter was September 4, 2004, 45 days after the effective date, but because that day was a Saturday, and because the following Monday, September 6, was the Labor Day holiday, the administrative bar date was Tuesday, September 7, 2004.
On October 1, 2004, the Maryland State department of Assessments and Taxation assessed BMI's personal property taxes in the amount of $47,712.52, for the levy period July 1, 2004 through June 30, 2005 [P. 970]. See Maryland Tax-Prop. Code § 10-204.3(f)(1)(iv) (2004).
On November 22, 2004, Baltimore County filed the instant motion, seeking allowance and payment of an administrative expense claim for BMI's unpaid personal property taxes, pursuant to 11 U.S.C. § 503.[4]
Despite the fact that the County filed its claim more two months after the administrative bar date of September 7, 2004, its motion made no mention of any reason excusing the lateness of the claim. The issue of lateness was raised in the objection *412 of the liquidating agent, which prompted the County to reply.
CONCLUSIONS OF LAW
This Court has exclusive subject matter jurisdiction to allow or disallow the administrative claim of Baltimore County, Maryland. 28 U.S.C. § 157(b)(2)(B).[5]
I. THE COUNTY'S CITATION OF THE INCORRECT SUBSECTION OF 11 U.S.C. § 503 WAS NOT FTAL TO ITS ADMINISTRATIVE CLAIM.
The administrative claim at issue is one for unpaid taxes. Even though the County miscited the applicable subsection of the statute, the fact that it correctly cited Section 503 placed the liquidating agent on notice that the County sought to have its tax claim accorded administrative priority. Under the circumstances, the Court finds no prejudice to anyone caused by the County's error and accordingly will treat the claim as one based upon the proper subsection of the statute, to wit, Section 503(b)(1)(B).
II. THE CLAIM QUALIFIES FOR ADMINISTRATIVE PRIORITY UNDER THE BANKRUPTCY CODE.
If the claim had been timely filed, the Court finds that it would have been entitied to administrative priority. To be entitled to administrative priority treatment, the tax claim at issue must have arisen as an unsecured postpetition claim against the debtor's bankruptcy estate. 11 U.S.C. § 503(b)(1)(B)(i). It will not be accorded administrative status if the claim arose against the debtor before this case was filed on June 2003.
The determination of when a claim for personal property tax arises against a debtor for purposes of determining whether or not it is an administrative claim has already been decided in this district. In the case of In re Wang Zi Cashmere Products, Inc., 202 B.R. 228 (Bankr.D.Md. 1996), Judge Derby held that the "date of finality," namely January 1 of the tax year that commences on July 1 next is the operative date for determining whether a tax claim arose prepetition or postpetition. Md.Code Ann., Tax-Prop. §§ 1-101(I), 8-107(a) (2004).[6] This is so, because in Maryland, an owner of personal property becomes liable for the taxes on the personalty as of the date of finality, even though the tax itself does not become due and owing until July 1. That the claim against the owner may be unliquidated and contingent on January 1 is of no moment, because the definition of "claim" under the Bankruptcy Code means "any right to payment," *413 whether liquidated or contingent. 11 U.S.C. § 101(5). 202 B.R. at 230. Thus, Judge Derby concluded that even though the filing of a debtor's tax return was not due until April 15, and the payment of the tax itself not due until July 1, liability for the claim arose on January 1. In Wang Zi, this meant that the claim arose prepetition and therefore, was not entitled to administrative claim priority. Id.
In the case of In re The Pasta Cafe Corp., 284 B.R. 564 (Bankr.D.Md.2002), building upon the rationale of Wang Zi, Judge Keir held that a personal property tax claim not only arose prepetition and therefore was not entitled to administrative priority, but because it was also secured by a statutory lien, it was not even entitled to eighth-level priority as an unsecured governmental claim, pursuant to 11 U.S.C. § 507(a)(8).[7]The Pasta Cafe, 284 B.R. at 568.
The instant claim for unpaid personal property taxes for the 2004-05 tax year arose postpetition, that is, after June 11, 2003, on January 1, 2004, the date of finality. On that date, BMI, the debtor in possession, was the owner of record of its property, both real and personal. Even *414 though the auction occurred on November 5 of the preceding year,[8] the sale did not close until March 4, well after the date of finality.
The owner of personal property on the date of finality is liable for the personal property tax, unless otherwise provided. Id. § 10-401. If personal property is transferred between January 1 and July 1,[9] a liability-transfer report must be filed by the transferor before October 1 in order to shift the personal property tax liability to the transferee. Id. at § 10-402(b); In re Wang Zi Cashmere Products, Inc., 202 B.R. at 232. Cf. In re Reamy, 169 B.R. 352 (Bankr.D.Md.1994), regarding the difference in treatment of tax liability when real property is transferred, citing Md. Tax Code § 14-805(a).
In the instant case, BMI filed no such report. Therefore, the bankruptcy estate and the transferee are jointly and severally liable for the full amount of the personal property taxes for the period July 1, 2004, through June 30, 2005, first due on July 1, 2004.
Because the debtor's liability for payment of the personal property tax became fixed postpetition, and because BMI is jointly and severally liable for its payment, the tax was incurred by the debtor within the meaning of Section 503.
In the case of In re Merry-Go-Round Enterprises, Inc., 227 B.R. 775 (Bankr. D.Md.1998), Judge Derby held that because personal property taxes were "`incurred by the estate' and are not a tax specified in 11 U.S.C. § 507(a)(8),[10] they [were] entitled to treatment as a Chapter 11 administrative claim pursuant to 11 U.S.C. § 503(b)(1)(B)(i)." Id., at 784. Accord, City of White Plains v. A & S Galleria Real Estate, Inc. (In re Federated Dep't Stores, Inc.), 270 F.3d 994, 1006 (6th Cir.2001); Perpetual Am. Bank v. District of Columbia (In re Carlisle Court, Inc.), 36 B.R. 209 (Bankr.D.D.C.1983).
BMI asserted that because the estate no longer possesses the personal property, it will receive no benefit by the payment of the tax at issue. However, it is obvious that benefit to the estate is not a prerequisite for the allowance of a tax claim as an administrative expense under the statute. The only requirement for a tax to be accorded administrative priority under the statute is that it must be incurred by the bankruptcy estate, and thereby of necessity, be incurred postpetition. 11 U.S.C. § 503(b)(1)(B)(i); West Virginia State Dep't of Tax & Revenue v. Internal Revenue Service (In re Columbia Gas Transmission Corp.), 37 F.3d 982, 984 (3rd Cir.1994) (If the property tax was incurred by the estate, it must be given priority as an administrative expense.); *415 Mailman Steam Carpet Cleaning, Inc. v. Salem (In re Mailman Steam Carpet Cleaning, Inc.), 256 B.R. 240 (Bankr. D.Mass.2000), reversed on other grounds, sub. nom. Salem v. Mailman Steam Carpet Cleaning, Inc. (In re Mailman Steam Carpet Cleaning, Inc.), 270 B.R. 82 (1st Cir. BAP 2001); In re Farris, 205 B.R. 461, 465 (Bankr.E.D.Pa.1997) ("In order to receive administrative expense treatment, a tax must merely be incurred by the estate."); In re Trowbridge, 74 B.R. 484 486 (Bankr.E.D.Pa.1987)("Whether a tax is incurred by the estate may well be a different question from whether a tax benefits the estate or is necessary to the preservation of the estate."); Flatau v. Jackson (Matter of Hirsch-Franklin, Enterprises, Inc.), 63 B.R. 864 (Bankr. M.D.Ga.1986); In re Sunset Enterprises, Inc., 49 B.R. 296 (Bankr.W.D.Va.1985) (postpetition abandoned mine reclamation fees are administrative expenses, as postpetition taxes, although these fees benefit the public and not the individual mine operator); Perpetual American Bank v. District of Columbia (In re Carlisle Court, Inc.), 36 B.R. 209, 217 (Bankr. D.D.C.1983).
III. THE CLAIM WAS NOT TIMELFILED AND CANNOT BE ALLOWED BASED UPON "EXCUSABLE NEGLECT."
The allowance of an untimely filed claim depends upon a finding that the failure to file on time was the result of the claimant's "excusable neglect." Fed. R. Bankr.Proc. 9006(b)(1).[11] As stated by Judge Mannes in McDow v. Runkle (In re Runkle), 333 B.R. 734, 736 (Bankr.D.Md. 2005):
It is established that Bankruptcy Rule 9006(a) can extend a deadline established by another bankruptcy rule. "The time-computation and time-extension provisions of Rule 9006 . . . are generally applicable to any time requirement found elsewhere in the rules unless expressly excepted." Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S. Ct. 1489, 1495 n. 4, 123 L. Ed. 2d 74 (1993) (emphasis added). See Kontrick v. Ryan, 540 U.S. 443, 124 S. Ct. 906, 913-14, 157 L. Ed. 2d 867 (2004); In re Beck, 220 B.R. 573 (Bankr.D.Md.1998) (the time limitations set forth in Bankruptcy Rule 4007(c) are procedural, and not jurisdictional, in nature and therefore are governed by Bankruptcy Rule 9006(a)).
Id. In Pioneer, the Supreme Court stated:
With regard to determining whether a party's neglect of a deadline is excusable, we are in substantial agreement with the factors identified by the Court of Appeals. Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable," we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include, as the Court of Appeals found, the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable *416 control of the movant, and whether the movant acted in good faith.
Pioneer, 507 U.S. at 395, 113 S. Ct. at 1498, 123 L.Ed.2d at 89. (Citations and footnotes omitted.)
The burden is on the County to prove that it did not timely file its proof of claim because of excusable neglect. In re Andover Togs, Inc., 231 B.R. 521, 549 (Bankr.S.D.N.Y.1999); Maxwell Macmillan Realization Liquidating Trust v. Aboff (In re Macmillan), 186 B.R. 35, 49 (Bankr. S.D.N.Y.1995). That burden has not been met because the County had actual notice of the administrative bar date and therefore cannot demonstrate excusable neglect.
The County blames its delay in filing the claim on the debtor's failure to file a liability-transfer report. It claims that it only became aware that the tax was due on October 1, 2004, when the SDAT generated the tax assessment. However, by reason of its participation in the bankruptcy case as an electronic filer, the County had actual and immediate notice of the sale motion, the auction sale on November 5, 2003, the fact that settlement occurred on March 4, 2004, the confirmation of the plan on June 25, 2004, and the administrative bar date of September 7, 2004.
Ironically, it was the failure of BMI to file the liability-transfer report after settlement of the sale to Barletta Willis that preserved the liability of the bankruptcy estate for the payment of the tax. The County had actual notice that the sale had occurred and was on inquiry notice that the liability-transfer report was not filed. Even before the plan was confirmed on June 25, 2004, the County knew that it had an administrative claim against the estate for unpaid personal property taxes. When they were not paid on July 1, presumably by either the transferor or transferee, the taxes became delinquent. However, in light of its knowledge of the events as they transpired in the bankruptcy case, the County cannot succeed upon the argument that the first date it became aware that it had an administrative claim against the estate was October 1, when it received notice of the nonpayment of the tax. In the context of this case, the County's ministerial procedures for the collection of the personal property taxes at issue were trumped by the confirmed plan.
"The most important of the factors identified in Pioneer for determining whether `neglect' is `excusable' is the reason for the failure to file." Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir.1996). The County's neglect in not timely filing its claim is not excusable. The auction sale at issue was a major event, the transfer of an historically important industrial site, namely a 226-acre shipyard for more than $ 11 million dollars, with dramatic economic implications for the County and the State of Maryland. The County knew about the sale and the debtor's liability for the tax well before the administrative bar date.
Because the County has not articulated a sufficient reason for its delay in filing the claim after the bar date, this Court need not consider the other factors enunciated in Pioneer, supra.[12]
*417 WHEREFORE, the motion of Baltimore County, Maryland, for the allowance and payment of personal property taxes as an administrative expense claim in the amount of $ 47,712.52 will be DENIED.
ORDER ACCORDINGLY.
NOTES
[1] Maryland Tax-Property Code § 10-402(b) provides:
(b)(1) If a transfer of all personal property or all the stock in business of a business occurs on or after the date of finality and before the semiannual date of finality the property is assessed to the transferee as if the property were escaped property under § 8-417 of this article, if the transferor or the transferee files with the Department or the supervisor on or before the October 1 immediately after the date of the transfer a report, under oath, that contains:
(I) a description of the personal property from the assessment roll;
(ii) the date and manner of transfer;
(iii) the name and address of the transferee;
(iv) the consideration; and
(v) any other information that the Department requires.
(2) If the report is not filed, the transferor and the transferee are jointly and severally liable for the next taxable year following the transfer.
(3) This subsection does not apply to any personal property or stock in business removed from the State before the semiannual date of finality.
(4) If the transferor of personal property that is transferred under this section has paid the property tax, the transferor may require the transferee to adjust the property tax with the transferor.
Id.
[2] Since April 7, 2003, with some exceptions, all bankruptcy cases filed in this district have been required to be filed electronically, pursuant to Administrative Order No. 03-02, dated April 4, 2003, which implemented Case Management /Electronic Case Filing ("CM/ECF"). The instant bankruptcy case was initiated by a petition filed electronically over the Internet, and all subsequent pleadings filed by the parties, including Baltimore County, were likewise electronically filed.
[3] The Joint Plan defined the "Effective Date" as "the later of (a) the fifteenth (15th) day after an Order of. Confirmation becomes final by expiration of the time for appeal therefrom, and (b) if an appeal is taken, the fifteenth (15th) day after an order on appeal in favor of confirmation (and all orders on appeal relating to said order) becomes a final non-appealable Order." Joint Plan, Art. VIII, § 1.24 [P. 702].
[4] Oddly enough, the County's administrative claim was asserted to be based upon 11 U.S.C. § 503(b)(1)(A), which provides, as follows:
§ 503. Allowance of administrative expenses
(b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including
(1)(A) the actual, necessary costs and expenses of preserving the estate including
(i) wages, salaries, and commissions for services rendered after the commencement of the case; and
(ii) wages and benefits awarded pursuant to a judicial proceeding or a proceeding of the National Labor Relations Board as back pay attributable to any period of time occurring after commencement of the case under this title, as a result of a violation of Federal or State law by the debtor, without regard to the time of the occurrence of unlawful conduct on which such award is based or to whether any services were rendered, if the court determines that payment of wages and benefits by reason of the operation of this clause will not substantially increase the probability of layoff or termination of current employees, or of nonpayment of domestic support obligations, during the case under this title[.]
Id. As a claim for unpaid taxes, the County's claim should have been premised upon 11 U.S.C. § (b)(1)(B)(i), which provides, as follows:
(B) any tax
(I) incurred by the estate, whether secured or unsecured, including property taxes for which liability is in rem, in personam, or both, except a tax of a kind specified in section 507(a)(8) of this title[.]
11 U.S.C. § 503(b)(1)(B)(i).
[5] Section 157(b)(1) and (2)(B) provides:
§ 157. Procedures
(b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.
(2) Core proceedings include, but are not limited to
* * * * *
(B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11;
Id.
[6] "`Date of finality' means January 1, when assessments become final for the taxable year next following." Id. § 1-101(i).
[7] Section 507(a)(8) provides as to priority:
Eighth, allowed unsecured claims of governmental units, only to the extent that such claims are for
(A) a tax on or measured by income or gross receipts
(i) for a taxable year ending on or before the date of the filing of the petition for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition;
(ii) assessed within 240 days, plus any time plus 30 days during which an offer in compromise with respect to such tax that was made within 240 days after such assessment was pending, before the date of the filing of the petition; or
(iii) other than a tax of a kind specified in section 523(a)(1)(B) or 523(a)(1)(C) of this title, not assessed before, but assessable, under applicable law or by agreement, after, the commencement of the case;
(B) a property tax assessed before the commencement of the case and last payable without penalty after one year before the date of the filing of the petition;
(C) a tax required to be collected or withheld and for which the debtor is liable in whatever capacity;
(D) an employment tax on a wage, salary, or commission of a kind specified in paragraph (3) of this subsection earned from the debtor before the date of the filing of the petition, whether or not actually paid before such date, for which a return is last due, under applicable law or under any extension, after three years before the date of the filing of the petition;
(E) an excise tax on
(i) a transaction occurring before the date of the filing of the petition for which a return, if required, is last due, under applicable law or under any extension, after three years before the date of the filing of the petition; or
(ii) if a return is not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition;
(F) a customs duty arising out of the importation of merchandise
(i) entered for consumption within one year before the date of the filing of the petition;
(ii) covered by an entry liquidated or reliquidated within one year before the date of the filing of the petition; or
(iii) entered for consumption within four years before the date of the filing of the petition but unliquidated on such date, if the Secretary of the Treasury certifies that failure to liquidate such entry was due to an investigation pending on such date into assessment of antidumping or countervailing duties or fraud, or if information needed for the proper appraisement or classification of such merchandise was not available to the appropriate customs officer before such date; or
(G) a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss.
11 U.S.C. § 507(a)(8). Quoted in The Pasta Cafe Corp., 284 B.R. at 567-8, fn. 6.
[8] This is an entirely different situation from that faced by debtors in such cases as Community Development Admin. v. De Souza (In re De Souza), 135 B.R. 793 (Bankr.D.Md.1992) and Homeside Lending, Inc. v. Denny (In re Denny), 242 B.R. 593 (Bankr.D.Md.1999), where this Court (Mannes and Keir, J.J.), held that debtors were dispossessed of their interests in property when the gavel fell at public foreclosure sales, with no further ability to redeem the property in the bankruptcy court. In the instant case, the voluntary, court-approved sale did not become final until settlement because it was at that point that the actual transfer of ownership of the property occurred. If BMI and Barletta Willis had not reached agreement to close the sale on March 4, 2004, this Court retained jurisdiction over the property to either enforce the sale or rescind it.
[9] The semiannual date of finality. See id. § 1-101(ff).
[10] 11 U.S.C. § 507(a)(8) refers to property taxes solely incurred prepetition and thus is not applicable to the postpetition property taxes at issue here.
[11] Bankruptcy Rule 9006(b)(1) states:
[W]hen an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by the order of the court, the court for cause shown may at any time in its discretion . . . on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Fed. R. Bankr.Proc. 9006(b)(1).
[12] Cases after Pioneer have sought to catalog various factors in determining whether a debtor will be prejudiced by allowing a late claim. "These include the size of the late claim in relation to the estate, whether a disclosure statement or plan has been filed or confirmed with knowledge of the existence of the claim, the disruptive effect that the late filing would have on a plan close to completion or upon the economic model upon which the plan was formulated and negotiated." In re Keene Corp., 188 B.R. 903, 910 (Bankr. S.D.N.Y.1995). See also In re Enron Corp., 298 B.R. 513, 525 (Bankr.S.D.N.Y.2003), aff'd, 419 F.3d 115 (2nd Cir.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827211/ | Order Michigan Supreme Court
Lansing, Michigan
August 24, 2011 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
143619 (19) Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra,
Justices
ALI HASSAN SAREINI,
Plaintiff,
v SC: 143619
COA: 302100
PAROLE BOARD,
Defendant.
___________________________________
On order of the Chief Justice, the motion to waive fees is considered and it
is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be
liable for filing fees.
Within 21 days of the certification of this order, plaintiff shall pay to the
Clerk of the Court the initial partial filing fee of $9.00, shall submit a copy of this order
with the payment, and shall refile the copy of the pleadings which is being returned
with this order. Failure to comply with this order shall result in the appeal not being
filed in this Court.
If plaintiff timely files the partial fee and refiles the pleadings, monthly
payments shall be made to the Department of Corrections in an amount of 50 percent of
the deposits made to plaintiff’s account until the payments equal the balance due of
$366.00. This amount shall then be remitted to this Court.
Pursuant to MCL 600.2963(8) plaintiff shall not file further appeals in this
Court until the entry fee in this case is paid in full.
The Clerk of the Court shall furnish two copies of this order to plaintiff and
return plaintiff’s pleadings with this order.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
August 24, 2011 _________________________________________
jam Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566328/ | 592 S.W.2d 523 (1979)
STATE of Missouri, Plaintiff-Respondent,
v.
Oscar Eugene LORENZE, Defendant-Appellant.
No. 11225.
Missouri Court of Appeals, Southern District, Division One.
December 28, 1979.
*525 David R. Fielder, Springfield, for defendant-appellant.
John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
GREENE, Judge.
Defendant, Oscar Eugene Lorenze, was jury convicted in 1978 of the crime of forcible rape, in violation of § 559.260,[1] RSMo Supp. 1975, which was the applicable statute in force at that time. He was thereafter sentenced as a result of the conviction to 50 years imprisonment, under the provisions of the second offender act. This appeal followed.
Defendant raises five points of error on appeal, none of which allege insufficiency of the evidence. Therefore, a detailed recitation of the facts is unnecessary. It suffices to say that the victim, a university *526 coed, was doing her laundry at a laundromat about 10 p. m. on June 16, 1978. No one else was in the building. Her assailant, identified by the victim as the defendant, entered the laundromat through a rear door, hit her in the stomach, choked her, and dragged her outside to an alley where she was raped through force, and fear of force. Her testimony concerning the rape received corroboration from other witnesses, including customers who entered the laundromat shortly after the rape, and medical personnel. Defendant's defense was alibi, which the jury evidently did not believe.
Defendant first contends that the trial court erred in overruling his motion to quash the felony information, for the reason that § 559.260 is unconstitutional, in that it distinguishes victims of rape by sex (female), thus depriving defendant of due process of law and equal protection of the law under the Missouri and United States Constitutions.
Defendant cites Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950, 98 S. Ct. 2858, 56 L. Ed. 2d 793 (1978), as support for his argument. Meloon does not apply here. It was a statutory rape case, and the court's analysis there was predicated on the consensual nature of the crime committed. In such cases, there is a reasonable claim made for unconstitutional discrimination. However, statutes charging forcible rape, as is the case here, are distinguishable. Forcible rape is an offense that can only be committed against a female, and, insofar as personal participation is concerned, can only be committed by a male. Therefore, if the protection of the female from the act of forcible rape is a proper subject of State concern, which it is, the classification of victims along sex lines in legislation condemning such an act becomes inherently necessary. In re Interest of J. D. G., 498 S.W.2d 786, 793 (Mo.1973). Many of Missouri's sister states have reached decisions upholding the constitutionality of their forcible rape statutes against equal protection attacks. See People v. Gould, 188 Colo. 113, 532 P.2d 953 (1975); People v. Medrano, 24 Ill.App.3d 429, 321 N.E.2d 97 (1974); State v. Price, 215 Kan. 718, 529 P.2d 85 (1974); Finley v. State, 527 S.W.2d 553 (Tex.Cr.App.1975).
A clear cut rationale for upholding constitutionality of such statutes was expressed by the Maryland Court of Special Appeals in Brooks v. State, 24 Md.App. 334, 330 A.2d 670, 673 (1975), where the court stated: "The equality of the sexes expresses a societal goal, not a physical metamorphosis. It would be anomalous indeed if our aspirations toward the ideal of equality under the law caused us to overlook our disparate human vulnerabilities." To hold otherwise would be contrary to common experience and biological fact. As perceived by Mr. Bumble, in Oliver Twist, the law at times may appear to be a ass, but this court should resist the temptation to contribute to such a belief by a strained construction of the word "equality" which would be contrary to the facts of life. The statutory classification of § 559.260 is reasonable, and the statute does not violate the Equal Protection Clause of the Missouri Constitution or the Fourteenth Amendment of the Constitution of the United States. In re Interest of J. D. G., supra at 793. The trial court did not err in overruling defendant's motion to quash the information. The point is denied.
Defendant's second point alleges that the trial court erred in allowing State's witness Rick Ebeirus to testify, when his name had not been disclosed to defendant, prior to trial, in violation of Rule 25.32. It is true that the rule provides for such disclosure. However, the State did not learn of the existence of witness Ebeirus until the trial had commenced. As soon as the prosecuting attorney received such information, he immediately notified defendant's attorney of the name of the witness, as is required by Rule 25.37. Defendant's attorney then objected to the use of the witness on the grounds that he had not had sufficient time to interview the witness and check his story. The trial judge told defense counsel he would give the attorney time to voir dire or depose the witness, and to conduct an *527 investigation concerning his version of the facts, prior to the witness being allowed to take the stand. Defendant's counsel, after talking to Ebeirus, stated to the court: "Well, your honor, I feel that I need no further investigation because this witness is not certain either, he cannot identify this boy as being there in the evening." Defense counsel did not request a continuance for further investigation, and made no further objection to Ebeirus' taking the stand.
Defendant has not demonstrated any prejudice due to the late endorsement of the witness. Rule 24.17 authorizes the endorsement of witnesses at any time, upon order of the court. If the trial court does allow a late endorsement, it must give defense counsel ample opportunity to interview the proposed witness, and check out his story. The trial court made such an offer here. The trial court is vested with broad discretion in permitting the late endorsement of a witness, and, absent abuse of that discretion, his decision should stand. State v. Barker, 572 S.W.2d 185, 187 (Mo. App.1978). There was no abuse of discretion on the part of the trial court in allowing the witness to testify. Defendant's second point is denied.
Defendant's third point charges that the trial court erred in overruling his motions to suppress prosecutrix' in-court identification of defendant because that identification was tainted by an impermissibly suggestive photographic lineup. The photographic lineup, according to defendant, was impermissibly suggestive because prosecutrix assumed that one of the people in the photographs had been arrested for the crime. Such thoughts upon the part of the witness, in the absence of other suggestive features, will not render an identification constitutionally infirm. State v. Bivens, 558 S.W.2d 296, 299-300 (Mo.App.1976).
Defendant filed an Amended Motion to Suppress Identification in which he sought to suppress prosecutrix' in-court identification because: 1) the photographs displayed to the victim did not depict subjects with similar characteristics, 2) the photographs were displayed in an impermissibly suggestive manner, and 3) prosecutrix' view of her assailant during the crime was insufficient to allow her to make a reliable identification. The trial court, after hearing, overruled the motion. Prior to the beginning of trial, defendant again objected to any evidence concerning the pre-trial identification process for the reasons stated in his amended motion to suppress. After the trial court again overruled the motion, defendant requested, and the court agreed, that his objection be shown as a continuing objection throughout the course of the hearing. This continuing objection was sufficient to preserve those points for review, as required by State v. Timmons, 584 S.W.2d 129, 132 (Mo.App.1979) and State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976).
However, where the objection raised on appeal is different from those stated in defendant's motion to suppress, and preserved through his continuing objection and motion for new trial, the objection, raised for the first time on appeal, is not preserved for review by the continuing objection. State v. Gant, 490 S.W.2d 46, 49 (Mo.1973). Defendant's point of error here was not asserted in his motion to suppress, was not raised prior to trial or preserved by his continuing objection, was not made at the time prosecutrix testified, and was not contained in his motion for new trial. Point three was not, therefore, preserved for review.
In addition, defendant has the burden of demonstrating any error in the trial court's findings by filing a transcript which incorporates the proceedings which show that the trial court erred. Jackson v. State, 514 S.W.2d 532, 533 (Mo.1974). Since defendant did not file a transcript of the hearing on his motion to suppress, the court here cannot review the evidence elicited there to determine whether the trial court made a correct ruling, State v. Harris, 564 S.W.2d 561, 565-566 (Mo.App.1978), and can only review the testimony elicited at trial to determine if there was any plain error, which would require reversal under Rule 27.20(c), in admitting the testimony of prosecutrix on the issue of identification.
*528 On direct examination, the prosecutrix was asked:
"Q. What were you told prior to seeing these photographs on this occasion?
A. The only thing I was told was to look them over very carefully and take my time, that's the only thing.
* * * * * *
Q. What caused you to select that photograph?
A. Because I knew from that night, knew who it was."
While on cross-examination, the following exchange occurred:
"Q. Patricia, at the time that you talked with your local sheriff up there in Carrollton I believe you indicated that hewhile he didn't point out the defendant's picture in the stack, he did indicate to you that they had someone in there that you were expected to identify or something of that nature, did he not?
A. No.
Q. Was it your understanding when you were shown these photographs that they had a photograph of a person they had arrested for this crime?
A. I thought that they had.
Q. Yes. Did the sheriff indicate that to you, or some officer in Springfield, that they thought that they had a photograph of the right person?
A. Nobody told me that about any photograph.
* * * * * *
Q. . . . but at the preliminary hearing I believe you told me that the officers, when you were shown the photographs, the officers thought they had a photograph of the rapist, don't you remember that being said at the preliminary, so that when you looked at the photographs you knew you had to pick somebody out?
A. They just asked me tothey had somebody in custody and they showed me pictures."
In addition, Paul Johnson, the Sheriff of Carroll County, Missouri, who conducted the pretrial photographic lineup, testified that he received five photographs from the Springfield Police Department together with a letter requesting that he show the pictures to prosecutrix. When prosecutrix came into the sheriff's office, Johnson laid the pictures out on a conference table in front of her. There was nothing in the letter from the Springfield police to Johnson which indicated that any of the photographs represented a suspect in the case.
From the evidence available to us, we see nothing which would indicate that pressure of any kind was put on prosecutrix to get her to pick one of the five photographs submitted to her as her assailant. Indeed, her testimony indicates that she picked defendant's picture because she immediately recognized him as her attacker. There was nothing in evidence to indicate that the pre-trial lineup was so impermissibly suggestive as to produce manifest injustice or a miscarriage of justice. Defendant's third point is denied.
In his fourth point, defendant alleges that the trial court erred in allowing the prosecutor and prosecutrix to mention prosecutrix' out-of-court identification because it improperly bolstered her in-court identification. Defendant failed to timely and specifically object to the testimony of prosecutrix on this issue and the point is not preserved as to her testimony. Even if defendant had objected, there would be no plain error in admitting the testimony of prosecutrix since, as an identifying witness, her testimony, concerning her extrajudicial identification of defendant by means of a photograph, is admissible. State v. Degraffenreid, 477 S.W.2d 57, 62 (Mo. banc 1972). And, even though defendant did timely object to the prosecutor's comments, and preserved that error for review in his motion for new trial, such comments were proper, as the evidence he spoke of in his opening statement was forthcoming through the testimony of the prosecutrix. State v. Emrich, 250 S.W.2d 718, 723 (Mo.1952).
*529 Defendant's fifth and final point alleges that the trial court erred in admitting into evidence a police mug shot of defendant, because it prejudiced the jury by depicting appellant as a person with a criminal record. The only objection that defendant made to the photograph, when it was admitted, was that preserved by his continuing objection. Defendant's motion to suppress did not complain that the photographs indicated a past criminal life of defendant. Therefore, this point has not been preserved.
Nor has appellant shown any manifest injustice which would require reversal under the plain error rule, Rule 27.20(c). Mug shots are in themselves neutral and do not constitute evidence of prior crimes and offenses. State v. Hamell, 561 S.W.2d 357, 361 (Mo.App.1977). The presence of the defendant in the courtroom, and the viewing of his photograph, by which the prosecutrix identified him as her attacker, made it possible for the jury to determine the accuracy or inaccuracy of her identification of him from the photographic lineup. State v. Childers, 313 S.W.2d 728, 731 (Mo. 1958); State v. Jones, 531 S.W.2d 67, 73 (Mo.App.1975). In addition, all identifying information appearing on the photographs was masked, and was not viewed by the jury. There was no prejudicial error in admitting the photograph. State v. Crossman, 464 S.W.2d 36, 41 (Mo.1971). Point five is denied.
A review of the entire record does not reveal any prejudice to defendant by reason of any ruling of the trial court. The punishment assessed was commensurate with the facts of the crime. Defendant had a fair trial.
The judgment is affirmed.
FLANIGAN, C. J., and TITUS and PREWITT, JJ., concur.
NOTES
[1] "Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of sixteen years, or by forcibly ravishing any woman of the age of sixteen years or upward, shall be punished by imprisonment by the division of corrections for not less than two years." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566322/ | 592 S.W.2d 308 (1979)
STATE of Missouri, Plaintiff-Respondent,
v.
Leo George EDWARDS, Defendant-Appellant.
No. 11111.
Missouri Court of Appeals, Southern District.
December 19, 1979.
Motion for Rehearing or to Transfer Denied January 10, 1980.
Application to Transfer Denied February 11, 1980.
*309 Loren R. Honecker, Springfield, for defendant-appellant.
John Ashcroft, Atty. Gen., Kathryn Marie Krause, Steven Scott Clark, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
FLANIGAN, Chief Judge.
A jury found defendant Leo George Edwards guilty of robbery in the first degree (§ 560.120 RSMo 1969) and fixed the punishment at 12 years' imprisonment. Judgment and sentence were entered on the verdict. Defendant appeals.
Defendant's first contention is that the trial court erred "in allowing defendant to represent himself at the trial because such act deprived defendant of his right to counsel in that defendant, not having been properly apprised of the pitfalls of self-representation, did not knowingly and intelligently waive his right to counsel."
The instant trial was the second trial for this offense. The first trial, at which defendant was represented by counsel, resulted in a guilty verdict but the trial court granted a new trial because of an error in an instruction.
Immediately prior to the commencement of the second trial the court inquired whether the parties were ready for trial. The prosecutor replied that the state was ready and attorney John Newberry announced that the defendant was ready. The following ensued:
"THE COURT: Now, the defendant announced last week that he is going to try his own case, but has asked the court to have Mr. Newberry at the counsel table and available for advice. I think it was announced last week that Mr. Newberry would be the one who would conduct the voir dire examination of the jurors. Mr. Newberry, is that still the situation?
"MR. NEWBERRY: That's my understanding, yes."
During the trial defendant and attorney Newberry combined their efforts in presenting the defense. The state presented the testimony of four witnesses and defendant cross-examined each of them. Defendant conducted the direct and redirect examination of ten defense witnesses. Attorney Newberry, who was present throughout the trial, performed various functions[1] in acting as co-counsel for defendant.
*310 There is no showing in the record that the trial court made any effort to inform the defendant of the hazards and disadvantages of self-representation. It is defendant's position that this omission was a denial of his constitutional right to the assistance of counsel and that there was no intelligent and knowing waiver of that right.
The authority upon which defendant places principal reliance is Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In that case the court enunciated the following principles. The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. A state may not constitutionally hale a person into its criminal courts and there force a lawyer upon him when he insists that he wants to conduct his own defense. The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. Although in most criminal prosecutions a defendant could better defend with counsel's guidance than by his own unskilled efforts, the defendant must be free personally to decide whether in his particular case counsel is to his advantage. When a defendant manages his own defense he relinquishes many of the traditional benefits associated with right to counsel. For this reason, in order to represent himself, the defendant must knowingly and intelligently" forgo those relinquished benefits.
"Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta, 95 S.Ct. at 2541.
The court also said: "Of course, a State mayeven over objection by the accused appoint a `standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Faretta, 95 S.Ct. at 2541.
The situation in the case at bar is an example of what the reported cases classify as "hybrid representation." The defendant and attorney Newberry presented the defense through their combined efforts. Defendant acted as co-counsel with his attorney. He did not act totally pro se.
Federal cases, decided in the wake of Faretta, have held that a defendant in a criminal case does not have a constitutional right to hybrid representation, U. S. v. Daniels, 572 F.2d 535, 540[8] (CA 5 1978); U. S. v. Bowdach, 561 F.2d 1160, 1176[26] (CA 5 1977); U. S. v. Hill, 526 F.2d 1019, 1024[3] (CA 10 1975),[2] but a trial court, in its discretion, may allow hybrid representation. U. S. v. Olson, 576 F.2d 1267 (CA 8 1978); United States v. Pinkey, 548 F.2d 305 (CA 10 1977); Maynard v. Meachum, 545 F.2d *311 273 (CA 1 1976); United States v. Bennett, 539 F.2d 45 (CA 10 1976).
Whether or not a criminal defendant, who has been accorded hybrid representation, may properly complain of the failure of the trial court to warn him of the hazards of self-representation is an issue which has received rare and conflicting discussion in the federal cases.
In U. S. v. Aponte, 591 F.2d 1247 (CA 9 1978), a case involving hybrid representation, the court of appeals (in a 2 to 1 decision) reversed a conviction "because the record does not disclose that he knowingly and intelligently waived his right to counsel before electing to represent himself." The court pointed out that only rarely will adequate waiver be found where the record does not contain a specific inquiry by the trial judge into the issue of "intelligent waiver."
In Maynard v. Meachum, 545 F.2d 273 (CA 1 1976) a habeas corpus proceeding, the court held that hybrid representation raises the issue of effective waiver of counsel. The court said, at p. 277:
"[W]hatever label is attached to it, the net result was that Maynard had less than the full representation by counsel to which, absent a valid waiver, he was entitled under the Sixth Amendment. . . . We can conceive of no reason why the standard for waiving part of a constitutional right should be different from the standard for waiver of the entire right. Respondent argues, and we agree, that it is within the discretion of a trial court to allow the sort of hybrid arrangement that was adopted in this case . . . . But it does not follow that such an arrangement is the equivalent of full representation by counsel for purposes of waiver; it was apparently not suggested in any of the cases cited by respondent that the defendant's agreement to the arrangement was not knowing and intelligent. On respondent's analysis, the right to counsel is satisfied, regardless of the reality of self-representation, so long as counsel is not formally allowed to withdraw and remains in the courtroom. We do not believe that the protections of this right that have evolved from Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), can be so casually swept away."
In Maynard, however, the court also held that the absence of an explicit bench warning did not compel the conclusion that Maynard's waiver of counsel was ineffective. It also held that, in the habeas corpus proceeding, the burden of proof was upon Maynard to establish the invalidity of the waiver.
On the other hand, in United States ex rel. Konigsberg v. Vincent, 526 F.2d 131 (CA 2 1975), a case of hybrid representation, the waiver was held to be sufficient although there was no express bench warning. Additionally the court said, at p. 133:
"It seems to us that a case where a defendant is vehemently asserting his right of self-representation is not truly a case of waiver of a constitutional right; it is a decision to assert one constitutional right instead of another."
In hybrid representation situations, it is not uncommon for the trial court to administer a warning of the perils of self-representation whether or not the warning is mandatory. See United States v. King, 582 F.2d 888 (CA 4 1978) and United States v. Pinkey, 548 F.2d 305 (CA 10 1977). Doubtless that is the better practice.
In 1976 the Missouri General Assembly enacted § 600.051 RSMo (Supp.1976) which requires the court to obtain a written waiver of the right to assistance of counsel in criminal cases where defendant may receive a jail sentence or confinement. The statute sets forth information which the written form must contain. In Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978) a defendant, acting pro se, entered a plea of guilty. The trial court failed to use the written form prescribed by the statute and that failure was held to be reversible error requiring the setting aside of the conviction and the granting of permission to withdraw the plea. The court held that use of the written form has been mandatory since the effective date of § 600.051 (August 13, 1976).
*312 The Eastern District and the Western District of this court have held that where defendant was accorded hybrid representation, there was no waiver of the right to counsel and accordingly the trial court did not err in failing to obtain from defendant a written waiver of counsel pursuant to § 600.051. State v. Tyler, 587 S.W.2d 918 (Mo.App.1979); State v. Johnson, 586 S.W.2d 437 (Mo.App.1979).
In Tyler the court said, at p. 923, the trial court "did not permit defendant to waive counsel nor did defendant actually waive counsel."
In Johnson the court said, at p. 443:
"The appellant requested to try his case as his own counsel but with the aid of an attorney. The decision allowing appellant to participate in his trial when he [h]as counsel rests within the discretion of the trial court, State v. Velanti, 331 S.W.2d 542, 546 (Mo.1960), because he has no 6th Amendment right to participate as co-counsel. U. S. v. Wolfish, 525 F.2d 457 (2nd Cir. 1975). Such dual representation does not constitute either a waiver or an attempted waiver. State v. Burgin, 539 S.W.2d 652, 654 (Mo.App.1976). Since appellant did not waive this right to counsel but proceeded, in the court's discretion, as co-counsel with an attorney's assistance, a written waiver was not necessary. . . . Appellant had the aid of counsel and took advantage of it throughout the trial. Appellant never waived his right to counsel and therefore, a written waiver form was not required." (Emphasis added.)
There is a paucity of foreign authorities dealing with the question of whether an express warning of the pitfalls of self-representation is necessary where hybrid representation has been permitted. The warning was held to be unnecessary in People v. McKinney, 62 Ill.App.3d 61, 19 Ill. Dec. 250, 378 N.E.2d 1125, 1128 (1978) and People v. Boswell, 62 Ill.App.3d 1033, 19 Ill. Dec. 786, 379 N.E.2d 658 (1978). The warning was held to be necessary in Hamilton v. State, 30 Md.App. 202, 351 A.2d 153 (1976).
This court holds that defendant, having requested and received hybrid representation, did not waive his right to counsel but in fact exercised it, and that the trial court did not err in failing to warn defendant of the perils of self-representation.
Defendant's first contention has no merit.
Defendant's second contention is that the trial court erred in submitting instruction 7 to the jury. Instruction 7 is based on MAI-CR 2.32 and is set forth below.[3]
Defendant's complaint concerning instruction 7 is that it includes this language, "except an abnormality manifested only by repeated antisocial conduct." Defendant argues that the quoted phrase lacked evidentiary support and "tended to disparage defendant's defense." The defense to which defendant alludes is that he was not guilty by reason of "mental disease or defect excluding responsibility." That defense was submitted to the jury by instruction 6.
MAI-CR 2.32 contains three "parenthetical matters," the third of which is: ("except an abnormality manifested only by repeated antisocial conduct.")
The second of the Notes on Use to MAI-CR. 2.32 reads:
"2. The three parenthetical matters deal with special situations, the last of which is sociopathy or, as it is sometimes known, psychopathy. See V.A.M.S., Section 552.010. All should be omitted unless the evidence justifies calling them to the jury's *313 attention. If there is evidence justifying reference to any one or more of such matters, it or they should be included in the instruction."
Robert Kennedy, M.D., a defense witness, testified that his examination of the defendant in 1977 led to the diagnosis that the defendant was "a sociopathic personality, antisocial type." Dr. Kennedy testified that an examination of the defendant by a psychiatrist resulted in the diagnosis: "Sociopathic personality disorder of antisocial type." Henry Bratkowski, D.O., another defense witness, testified that the defendant had an "antisocial personality disorder." Han Hulstra, M.D., a witness for the state, testified that the defendant had "a personality disorder of the antisocial typea person who does not abide by the law, has difficulties with the law, frequently gets into legal trouble."
Defendant's wife, a defense witness, testified concerning two incidents which took place in California and which resulted in the arrest of the defendant by police. One of these incidents involved the defendant "robbing a place" and the other incident involved the defendant "shooting across the road."
The foregoing evidence, coupled with the state's evidence concerning the instant offense, justified the inclusion in instruction 7 of the language under attack. United States v. Thomas, 536 F.2d 274, 277[3] (CA 8 1976); United States v. Austin, 533 F.2d 879, 885[2] (CA 3 1976); People v. Foster, 43 Ill.App.3d 490, 2 Ill. Dec. 1, 356 N.E.2d 1288, 1292[7, 8] (1976).
Defendant's second contention has no merit.
The judgment is affirmed.
All concur.
NOTES
[1] Attorney Newberry conducted the voir dire examination of the jury panel, challenged a venireman for cause, participated in a discussion with the court concerning the use of a uniformed officer as bailiff, prepared and filed a motion for judgment of acquittal, subpoenaed medical records, conferred with the defendant concerning the issuance of subpoenas, obtained leave of court for the defendant to confer with defense witnesses, conferred with the defendant "off the record," conferred with the defendant with respect to his dual pleas of not guilty and not guilty by reason of mental disease or defect excluding responsibility, conferred with the court and the prosecutor concerning the instructions, and supervised the offering into evidence of 18 defense exhibits.
Mr. Newberry also prepared and argued the motion for new trial.
[2] To similar effect are the following state authorities:
People v. Wheeler, 68 Cal. App. 3d 1056, 137 Cal. Rptr. 791 (1977); Swinehart v. State, 376 N.E.2d 486 (Ind.1978); State v. Johnson, 586 S.W.2d 437, 443[18] (Mo.App.1979); State v. Moorefield, 33 N.C.App. 37, 234 S.E.2d 25 (1977); State v. McCleary, 149 N.J.Super. 77, 373 A.2d 400 (1977); State v. Carter, 53 Ohio App. 2d 125, 372 N.E.2d 622 (1977); State v. Burkhart, 541 S.W.2d 365 (Tenn.1976); Landers v. State, 550 S.W.2d 272 (Tex.Cr.App. 1977); Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978).
[3] "INSTRUCTION NO. 7
"The phrase `mental disease or defect,' as used in these instructions, means any mental abnormality, regardless of its medical lable (sic), origin or source, except an abnormality manifested only by repeated antisocial conduct.
"In determining under other instructions given to you, whether the defendant had a mental disease or defect at the time of the commission of the offense charged against him and, if so, the extent and effect of it, the jury may take into consideration all of the facts, circumstances and opinions given in evidence. However, it is for the jury alone to decide this issue under the law as given to you in these instructions." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566352/ | 34 So. 3d 8 (2010)
STATE
v.
REYNOLDS.
No. 1D07-3039.
District Court of Appeal of Florida, First District.
May 10, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566357/ | 34 So. 3d 101 (2010)
Jesse QUIROGA, Appellant,
v.
CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
No. 3D08-2942.
District Court of Appeal of Florida, Third District.
April 7, 2010.
Rehearing and Rehearing En Banc Denied May 25, 2010.
Katzman Garfinkel Rosenbaum and Richard Valuntas, West Palm Beach, for appellant.
Roberto Villasante, Coral Gables, for appellee.
Before RAMIREZ, C.J., and SHEPHERD and SUAREZ, JJ.
SHEPHERD, J.
This is an appeal from an order denying the law firm of Katzman Garfinkel and Rosenbaum's motion to impress a charging lien on the homeowner's insurance proceeds for damages caused by two hurricanes. The Katzman law firm secured the proceeds for the benefit of its client and policy insured, Jesse Quiroga, in appreciation for which Quiroga not only terminated the law firm's contingent fee representation of him, but also sought to shield himself from any responsibility to compensate his counsel by claiming the insurance proceeds are exempt homestead property, not subject to attachment by means of a charging lien. See Art. X, § 4(a), Fla. Const.[1]
The parties do not dispute the hurricane-damaged property is constitutionally *102 exempt homestead property. See Cutler v. Cutler, 994 So. 2d 341, 343 (Fla. 3d DCA 2008) ("To qualify for protection under Article X, section 4 of the Florida Constitution, a parcel of property must meet constitutionally defined size limitations and must be owned by a natural person who is a Florida resident who either makes or intends to make the property that person's residence."). In the event a homestead is damaged through fire, wind or flood, the proceeds of any insurance recovery are imbued with the same privilege. Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201, 203-04 (Fla.1962). Because Quiroga did not and, as a matter of public policy in this State, cannot through an unsecured agreement, such as the contingent fee agreement in this case, enter into an enforceable contract to divest himself from the exemptions afforded him through Article X, section 4(a), see Chames v. DeMayo, 972 So. 2d 850, 853 (Fla.2007), this Court is compelled to affirm the order under review, the equities of the matter notwithstanding. See Pub. Health Trust of Dade County v. Lopez, 531 So. 2d 946, 951 (Fla.1988) ("The homestead protection has never been based upon principles of equity.") (citing Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328, 330 (1940)); Pierrepont v. Humphreys (In re Newman's Estate), 413 So. 2d 140, 142 (Fla. 5th DCA 1982) ("The homestead character of a piece of property ... arises and attaches from the mere existence of certain facts in combination in place and time.").
Affirmed.
NOTES
[1] Article X, section 4(a) reads as follows insofar as pertinent here:
There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead ... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566350/ | 34 So. 3d 839 (2010)
In re Kenner O. MILLER, Jr.
No. 2009-B-2680.
Supreme Court of Louisiana.
May 21, 2010.
*840 ATTORNEY DISCIPLINARY PROCEEDINGS
*841 PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Kenner O. Miller, Jr., an attorney licensed to practice law in Louisiana.
During the disciplinary proceedings, respondent presented evidence suggesting his misconduct was caused by his alcoholism and cocaine abuse, for which he has been seeking treatment. To that end, on March 24, 2008, respondent entered into a five-year contract with the Lawyers Assistance Program ("LAP"). The ODC subsequently received information from LAP that respondent's January 27, 2009 drug test was positive for cocaine. Accordingly, the ODC filed a petition requesting the court place respondent on immediate interim suspension for threat of harm to the public. The court granted the petition on February 11, 2009. In re: Miller, 09-0271 (La.2/11/09), 2 So. 3d 418.
UNDERLYING FACTS
The underlying facts of this matter are not in dispute, having been stipulated to by the parties.
Count IThe Boyd Matter
In December 2000, Baton Rouge attorney Drew Louviere asked respondent to be lead counsel in the representation of Allen Boyd, who was involved in two car accidents, one in Georgia and one in Louisiana.[1] The Georgia car accident occurred on February 22, 2000 and was subject to a two-year prescription period.
Respondent agreed to associate a Georgia attorney as local counsel for the Georgia case but failed to do so, despite corresponding with a Georgia attorney in January, June, and October 2001. On January 3, 2002 and February 11, 2002, Mr. Louviere contacted respondent to find out if he had obtained a Georgia attorney and to remind him of the approaching prescription date. On February 12, 2002, respondent informed Mr. Louviere that "I've got the Ga. matter taken care of. Don't worry."
Respondent prepared a lawsuit as a pro se filing and affixed to it a signature purporting to be Mr. Boyd's without having Mr. Boyd's power of attorney or other proper legal written authority to sign his name. On February 21, 2002, respondent forwarded the lawsuit to the clerk of court for Cobb County (Georgia) Superior Court, and the clerk of court's office filed it on February 22, 2002. Respondent did not inform the Cobb County Superior Court that the signature on the lawsuit was not Mr. Boyd's.
Respondent also failed to submit forms necessary to have the lawsuit assigned to a judge and served. The clerk's office returned to respondent a date-stamped copy of the lawsuit and the required forms. Respondent did not return the required forms. Accordingly, the lawsuit was not assigned to a judge or timely served.
In April 2003, February 2004, and July 2004, Mr. Louviere asked respondent about the settlement status of Mr. Boyd's Georgia case. In July 2004, respondent's office informed Mr. Louviere that respondent was preparing a settlement package in Mr. Boyd's case. In September 2004, respondent still had not submitted the settlement package, and Mr. Louviere demanded he return Mr. Boyd's file. Respondent *842 returned the file to Mr. Louviere on September 10, 2004.
The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.3 (candor toward the tribunal), 4.1 (truthfulness in statements to others), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent stipulated that he violated Rules 1.3, 1.4, 8.4(c), and 8.4(d).
Count IIThe Heath Matter
In July 2001, Amy Heath retained respondent to handle a medical malpractice claim. In August 2001, respondent requested the appointment of a medical review panel.
In attempting to locate an expert witness to support the malpractice claim, respondent spoke briefly to one other attorney and spoke to only one physician, who reviewed only part of the medical records. In June 2003, the medical review panel rendered an opinion adverse to Ms. Heath's claim. Respondent sent Ms. Heath a copy of the opinion on July 11, 2003.
In September 2003, respondent filed a petition for damages on Ms. Heath's behalf with the Fourth Judicial District Court for the Parish of Ouachita. Thereafter, respondent failed to respond to the defendants' discovery requests. Motions for summary judgment on behalf of most of the defendants were granted in open court on April 5, 2005.[2] The related judgment was signed on April 19, 2005. A joint motion dismissing the remaining defendant,[3] which respondent signed, was granted on July 24, 2006.
In May 2005, respondent mailed a copy of the April 2005 judgment to Ms. Heath and informed her he was unable to find a doctor to testify that malpractice occurred. Ms. Heath requested her file, but respondent did not send it to her until October 2006, more than one year after summary judgment was granted and after she filed a disciplinary complaint against him. Although respondent was in contact with Ms. Heath during the litigation, he failed to properly and accurately advise her of the status of the case.
The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d) (obligations upon termination of the representation), and 8.4(c).[4] Respondent stipulated that he violated the Rules of Professional Conduct as alleged.
Count IIIThe Hampton Matter
Respondent has never been admitted to the practice of law in Texas. Nonetheless, *843 on March 31, 2004, Linda Hampton hired respondent to represent her in a personal injury matter, based on a slip and fall incident that occurred on July 19, 2003 in Harris County, Texas. The prescription date was July 19, 2005.
Between May 13, 2005 and June 10, 2005, respondent corresponded with two Texas attorneys about undertaking Ms. Hampton's representation. However, neither wished to do so because of a perceived lack of merit. Between March 31, 2004 and July 19, 2005, respondent did not send a settlement demand or otherwise correspond with the apparent defendants in Ms. Hampton's case.
Furthermore, although Ms. Hampton's accident occurred on July 19, 2003, respondent prepared a petition for damages that inaccurately listed the accident date as August 19, 2003. Respondent signed the petition, stating he had been admitted pro hac vice when he did not submit a motion for pro hac vice admission in the case. On August 19, 2005, respondent fax-filed the petition with the district court in Harris County, Texas. Accordingly, respondent did not timely file the petition on Ms. Hampton's behalf.
During the representation, respondent communicated with Ms. Hampton. However, he failed to keep her properly and accurately advised of the status of the case. He failed to inform her that he had not timely filed the lawsuit on her behalf, had not been admitted pro hac vice in her case, and had not submitted a motion for pro hac vice admission.
On June 30, 2006, another lawyer contacted respondent on Ms. Hampton's behalf after Ms. Hampton complained to him that respondent would not meet with or speak to her. Despite Ms. Hampton's requests for her file, respondent did not send a copy of her file to her until December 2006, more than one year after the lawsuit was filed and after she filed a disciplinary complaint against him.
The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer), 5.5(a) (engaging in the unauthorized practice of law), 8.4(c), and 8.4(d).[5] Respondent stipulated that he violated the Rules of Professional Conduct as alleged.
DISCIPLINARY PROCEEDINGS
In September 2007, the ODC filed three counts of formal charges against respondent. In December 2007, respondent answered the formal charges, admitting some alleged misconduct and denying other alleged misconduct. He also indicated he had been undergoing intensive substance abuse treatment through the Tau Center.[6]
Formal Hearing
This matter proceeded to a hearing in mitigation conducted by the hearing committee in July 2008. Respondent introduced the following exhibits: 1) January 26, 2009 video deposition of Paula Norris, a substance abuse counselor, 2) January 28, *844 2009 video deposition of Steven Adams, respondent's LAP monitor, 3) respondent's January 28, 2009 video deposition, 4) respondent's February 6, 2009 supplemental video deposition, and 5) the parties' second joint stipulation and agreement.
In respondent's initial deposition on January 28, 2009, he admitted he is an alcoholic and a drug addict. However, he denied using alcohol or cocaine since October 2007, and he indicated he has been randomly drug tested through the LAP program. On February 6, 2009, respondent gave a supplemental deposition, wherein he admitted to using cocaine on January 26, 2009, which was detected during his January 27, 2009 random drug test.[7] He admitted he lied about being drug free during his initial deposition on January 28, 2009. However, he indicated his use of cocaine on January 26, 2009 was an isolated incident.
Hearing Committee Report
After considering the evidence and testimony presented in this matter, the hearing committee determined the parties entered a detailed stipulation, which establishes the factual findings. Based on these stipulated facts, the committee found respondent repeatedly failed to provide his clients with diligent representation and repeatedly provided them with inaccurate or incomplete information. The committee further found respondent knowingly deceived his client and the Georgia court by signing Mr. Boyd's name to the lawsuit without Mr. Boyd's authorization. The committee also found respondent knowingly deceived the Texas court by post-dating Ms. Hampton's accident date and misrepresenting his pro hac vice status. Based on these findings, the committee accepted the parties' stipulation regarding rule violations.
The committee further determined respondent caused injury or potential injury to his clients, and he knowingly engaged in deceitful conduct. Relying on the ABA's Standards for Imposing Lawyer Sanctions, as well as this court's prior jurisprudence involving similar misconduct, the committee determined the baseline sanction is suspension.
In aggravation, the committee found multiple offenses and substantial experience in the practice of law (admitted 1983). The committee also found the following mitigating factors present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct, cooperative attitude toward the proceedings, mental disability or chemical dependency including alcoholism or drug abuse, and remorse.
After considering this court's prior jurisprudence, the committee recommended respondent be suspended from the practice of law for three years, fully deferred, subject to his compliance with his March 24, 2008 LAP contract.
The ODC filed an objection to the hearing committee's recommendation, arguing that no portion of the three-year suspension should be deferred because respondent cannot establish compliance with his LAP contract and cannot establish that he has been drug free during his interim suspension. In the ODC's subsequent brief to the disciplinary board, it presented two letters from William Leary, LAP's executive *845 director. The first letter, dated April 30, 2009, indicated respondent had not submitted sobriety reports or attendance sheets for the past quarter and had not taken a drug test since February 2009. The second letter, dated September 10, 2009, indicated respondent's continued non-compliance with his LAP contract, as he had still not contacted LAP. Under these circumstances, the ODC submitted that mental disability or chemical dependency should not be considered as a mitigating factor. The ODC further argued the additional aggravating factor of submission of false evidence, false statements, or other deceptive practices during the disciplinary process is present because respondent intentionally perjured himself during his January 28, 2009 deposition.
Disciplinary Board Recommendation
After review, the disciplinary board, like the hearing committee, accepted the stipulations as factual findings. Based on these findings, the board determined respondent violated the Rules of Professional Conduct as follows:
The Boyd matterRespondent violated Rules 1.3, 1.4, and 8.4(c) by neglecting Mr. Boyd's legal matter and failing to properly and accurately communicate with Mr. Boyd. Respondent's signing Mr. Boyd's name to the pro se lawsuit and failing to inform the Georgia court of same does not rise to the level necessary to establish a violation of the Rules of Professional Conduct. Accordingly, the board determined respondent did not violate Rules 3.3, 4.1, 8.4(b), 8.4(c), and 8.4(d) with respect to respondent signing Mr. Boyd's name on the lawsuit.
The Heath matterRespondent violated Rules 1.3, 1.4, and 8.4(c) by neglecting Ms. Heath's legal matter and failing to properly and accurately communicate with her. Respondent violated Rule 1.16(d) by failing to promptly return Ms. Heath's file. The board did not find violations of Rules 1.16 and 3.1.
The Hampton matterRespondent violated Rules 1.3, 1.4, and 8.4(c) by neglecting Ms. Hampton's legal matter and failing to properly and accurately communicate with her. Respondent violated Rule 1.16(d) by failing to promptly return Ms. Hampton's file. Respondent violated Rules 3.3(a)(1), 5.5(a), 8.4(c), and 8.4(d) by filing a lawsuit containing inaccurate material information and falsely representing to another state's court that he had been admitted pro hac vice. The board did not find violations of Rules 1.16 and 3.1.
The board further determined respondent violated duties owed to his clients, the legal system, and the legal profession. He acted knowingly and caused harm to his clients. After considering the ABA's Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.
The board found the following aggravating factors present: a pattern of misconduct, multiple offenses, submission of false statements during the disciplinary process, and substantial experience in the practice of law. In mitigation, the board found timely good faith effort to rectify the consequences of the misconduct (in the Boyd matter only) and remorse. The board rejected the mitigating factor of mental disability or chemical dependency due to respondent's use of cocaine just prior to his January 28, 2009 deposition and his abandonment of the LAP program, both of which indicate he has not successfully recovered and recurrence of his misconduct is likely.
Based on this court's prior jurisprudence involving similar misconduct, the ABA Standards, and the facts of this case, the board recommended respondent be *846 suspended from the practice of law for eighteen months.
Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So. 3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So. 2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So. 2d 150.
The record of this matter supports the stipulated facts. Based on the parties' stipulations and the other evidence in the record, respondent has neglected three legal matters, failed to properly and accurately communicate with three clients, failed to promptly return two client files, signed a client's name to a pro se lawsuit without the client's written authorization, failed to properly indicate to a court that he signed his client's name to a pro se lawsuit, filed a lawsuit containing inaccurate material information, and falsely represented to another state's court that he had been admitted pro hac vice. Based on this misconduct, respondent has violated Rules 1.3, 1.4, 1.16(d), 3.3(a)(1), 5.5(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct, as stipulated to by the parties.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So. 2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La.1984).
Respondent knowingly violated duties owed to his clients, the legal system, and the legal profession. His actions caused actual harm to his clients and the legal system. The baseline sanction for this type of misconduct is a period of suspension.
The record supports the following aggravating factors: a pattern of misconduct, multiple offenses, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, and substantial experience in the practice of law. Mitigating factors present are the absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems,[8] a cooperative attitude toward the proceedings, and remorse.
*847 Prior jurisprudence indicates the appropriate sanction for similar misconduct is a suspension from the practice of law for one year and one day to two years. For example, in In re: Hebert, 08-2785 (La.5/29/09), 9 So. 3d 846, we suspended an attorney for one year and one day after the attorney neglected a legal matter, failed to communicate with his client, made false statements of material fact to his client and the ODC, and failed to cooperate with the ODC in its investigation. In In re: Bailey, 03-0839 (La.6/6/03), 848 So. 2d 530, we suspended an attorney for two years after the attorney knowingly made false statements to a trial court and knowingly submitted altered evidence at a trial. Finally, in In re: Waltzer, 04-1032 (La.10/8/04), 883 So. 2d 973, we suspended an attorney for two years after the attorney neglected three legal matters, failed to communicate with three clients, failed to properly terminate the representation of her clients, failed to cooperate with the ODC in its investigations, failed to appear in response to subpoenas personally served on her, and gave false and misleading information to the ODC.
In light of the mitigating factors present, we find the eighteen-month suspension recommended by the disciplinary board is reasonable as it will require respondent to file an application for reinstatement before being allowed to return to the practice of law. Accordingly, we will adopt the board's recommendation and suspend respond from the practice of law for eighteen months, retroactive to the date of his interim suspension.[9]
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kenner O. Miller, Jr., Louisiana Bar Roll number 1963, be and he hereby is suspended from the practice of law for eighteen months, retroactive to February 11, 2009, the date of his interim suspension. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[*] Chief Justice Kimball not participating in the opinion.
[1] The Louisiana accident occurred in the summer of 2000, and respondent settled the case for a significant sum of money. Accordingly, respondent's conduct in the Louisiana case is not at issue in the instant disciplinary proceedings.
[2] Respondent did not file oppositions to the motions for summary judgment because he could not find an expert to establish that malpractice had occurred.
[3] Due to a clerical error, the remaining defendant was not properly included in the original medical review panel case or the original petition for damages. Respondent agreed to dismiss the lawsuit against the remaining defendant in light of the summary judgment in favor of the other defendants and because the claim against the remaining defendant had prescribed.
[4] In the alternative, the ODC alleged respondent violated Rules 1.4, 1.16 (declining or terminating representation), and 3.1 (meritorious claims and contentions) only if he believed Ms. Heath's cause of action was not viable but failed to properly advise her of his belief and withdraw from the representation.
[5] In the alternative, the ODC alleged respondent violated Rules 1.4, 1.16, and 3.1 only if he believed Ms. Hampton's cause of action was not viable but still failed to properly advise her of his belief and withdraw from the representation.
[6] According to his counselor at the Tau Center, respondent attended the Chemical Dependency Intensive Outpatient Program from October 15, 2007 to December 6, 2007. In March 2008, after successfully completing the program, he began attending the Continuing Care Program's weekly meetings.
[7] The parties' second joint stipulation and agreement, dated February 13, 2009, states: "[Respondent] has freely admitted his use of the prohibited substance detected in the screen and has not attempted to hide his failure in this regard. He continues to cooperate with both LAP and his Bar Monitor, Steve Adams. Nonetheless, he is currently in violation of his LAP Contract in light of this positive drug screen."
[8] While we acknowledge respondent's alcoholism and drug abuse caused the misconduct, he has been unable to demonstrate a meaningful and sustained period of successful rehabilitation. As the record reflects, respondent used cocaine in January 2009 and has not participated in LAP since February 2009. Therefore, the more heavily weighted mitigating factor of mental disability or chemical dependency is not present.
[9] In a footnote, the disciplinary board suggested we may wish not to exercise our discretion to apply the suspension retroactively to the date of respondent's interim suspension. However, we have historically chosen to exercise our discretion in order to make suspensions run retroactive to the date of prior interim suspensions. See, e.g., In re: Lacobee, 03-2010 (La.2/20/04), 866 So. 2d 237; In re: Gaudin, 00-2966 (La.5/4/01), 785 So. 2d 763; In re: Ferrouillet, 99-3434 (La.6/30/00), 764 So. 2d 948; In re: Edwards, 99-1783 (La. 12/17/99), 752 So. 2d 801; In re: Sterling, 08-2399 (La. 1/30/09), 2 So. 3d 408. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566355/ | 34 So. 3d 416 (2010)
STATE of Louisiana in the Interest of A.L.
No. 09-1565.
Court of Appeal of Louisiana, Third Circuit.
April 7, 2010.
*417 Leah Antoinette Beard Lafayette, LA, for Appellee-State of La., Department of Social Services.
James Daboval Landry, Crowley, LA, for Appellee-Julien (Unknown father).
Glen E. Howie, The Howie Law Office, L.L.C., Crowley, LA, for Appellee-A.L.
John Clay Lejeune, Crowley, LA, for Appellant-M.A.L.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
THIBODEAUX, Chief Judge.
Michael Lange, a non-parent, sought custody as a parent of a minor child as a consequence of signing a birth certificate. The child had been born with drugs in his system, and the Louisiana Department of Social Services took immediate custody of the child at birth, placing him with certified foster parents with whom he has resided for two years. The trial court dismissed Mr. Lange's petition to establish custody. We affirm.
I.
ISSUES
We must decide whether the trial court abused its discretion in dismissing Mr. Lange's Petition to Establish Custody.
II.
FACTS AND PROCEDURAL HISTORY
Michael Lange signed the birth certificate of A.L. shortly after his birth on February 5, 2008, with the expectation of rearing A.L. with A.L.'s half sibling and Mr. Lange's two other children. None of the children are Mr. Lange's biological children, but the arrangements for Mr. Lange to raise A.L. were permitted by the mother and requested by other family members.
On February 6, 2008, the Louisiana Department of Social Services (DSS), upon notice of a child born with cocaine in his system, took immediate custody of A.L. and placed him with foster parents. At the adjudication hearing in March 2008, where A.L. was found to be a Child in Need of Care, Mr. Lange admitted that he was not the biological father of A.L., that he had never had sexual relations with the mother of A.L., and he stated that he no longer sought the adoption of A.L. Upon the specific request of an assistant district attorney, Mr. Lange was ordered excused from further proceedings relating to A.L.
Notwithstanding this judicial proceeding, in August of 2009 the District Attorney's office obtained an order for child support against Michael Lange in the *418 amount of $1,006.00 per month, with an arrearage of $3,018.00, based on his signature on A.L.'s birth certificate.
On September 17, 2009, Michael Lange filed a petition to establish custody. On September 23, 2009, A.L.'s mother legally surrendered her parental rights to A.L. She knew the biological father only by his first name, and DSS is attempting to locate the father for a surrender of rights so that A.L. can be legally adopted by the foster parents with whom he has lived since his birth two years ago.
Mr. Lange's petition to establish custody of A.L. was denied in October 2009; hence this appeal. With great disappointment in, and admonition for, the inconsistent actions of our state agencies, we must affirm the trial court's denial of Mr. Lange's Petition to Establish Custody of A.L.
III.
LAW AND DISCUSSION
Standing
Mr. Lange contends that the trial court erred in denying his petition for custody because the State of Louisiana had no standing to argue that the absence of a biological connection can act as a preclusion to custody or visitation. This argument lacks merit. The State of Louisiana Department of Social Services learned of the birth of A.L. with cocaine in his system and filed an order for custody within two days of his birth in early February of 2008.[1] The DSS is a party to these proceedings and has a statutory right to argue paternity. More specifically, La. R.S. 9:396 provides in pertinent part as follows:
§ 396. Authority for test; ex parte orders; use of results
A. (1) Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court may, on its own initiative, or shall, under either of the following circumstances, order the mother, child, and alleged father, or the mother's husband or former husband in an action en desaveu, to submit to the collection of blood or tissue samples, or both, and direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures:
(a) Upon request made by or on behalf of any person whose blood or tissue is involved, provided that such request is supported by a sworn affidavit alleging specific facts which either tend to prove or deny paternity.
(b) Upon motion of any party to the action made at a time so as not to delay the proceedings unduly.
....
B. (1) The district attorney, in assisting the Department of Social Services in establishing paternity as authorized by R.S. 46:236.1.1 et seq., may file a motion with a court of proper jurisdiction and venue prior to and without the necessity of filing any other legal proceeding....
Accordingly, under La. R.S. 9:396(A)(1)(b) and (B)(1), the DSS is a party to the action and has authority to order testing that establishes paternity. Included therein is the authority to contest paternity, as paternity tests are used by all parties for both determining and contesting paternity. While it is true that the *419 State did not order paternity testing, and that the role of the State in this case is one in which the State is actually contesting an avowed paternity, the State does have standing to argue issues involving Mr. Lange's paternity.
Additionally, as the State points out, they are obligated under the Louisiana Children's Code, Articles 675, 700, 702 and 710, to establish a case plan to assure the health and safety of the child and to place the child in accordance with his best interest. Therefore a determination of Mr. Lange's eligibility to adopt or to obtain custody of or visitation rights with A.L. is squarely in the purview of the DSS.
Acknowledgment
Mr. Lange further contends that his acknowledgment of A.L. by signing the birth certificate provides him with the rights to pursue the custody of and visitation with A.L. More specifically, La. R.S. 9:392.1 on Legitimation, La. R.S. 9:405 on Filiation (which contain identical text), and La.Civ.Code art. 196 provide as follows (emphasis added):
§ 392.1. Acknowledgment; obligation to support
In child support, custody, and visitation cases, the acknowledgment of paternity by authentic act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support the child and to establish visitation without the necessity of obtaining a judgment of paternity.
§ 405. Legal effect of acknowledgment
In child support, custody, and visitation cases, the acknowledgment of paternity by authentic act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support the child and to establish visitation without the necessity of obtaining a judgment of paternity.
Art. 196. Formal acknowledgment; presumption
A man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man. The acknowledgment creates a presumption that the man who acknowledges the child is the father. The presumption can be invoked only on behalf of the child. Except as otherwise provided in custody, visitation, and child support cases, the acknowledgment does not create a presumption in favor of the man who acknowledges the child.
As indicated above, La. R.S. 9:392.1 and 9:405 pertain only to an acknowledgment by authentic act, while La.Civ.Code art. 196 includes an acknowledgment by the signing of the birth certificate. The latter is what occurred here. However, only the biological father may formally acknowledge an illegitimate child by having his name placed on the child's birth certificate. See McKinley v. McKinley, 25,365 (La. App. 2 Cir. 1/19/94), 631 So. 2d 45 (no legal effect to acknowledgment by stepfather on birth certificate, though he was given custody as a non-parent due to best interest of child); See also Succession of Robinson, 94-2229 (La.5/22/95), 654 So. 2d 682 (acknowledgment in will by authentic act was in contravention of law and invalid if a biological relationship did not exist between decedent and the children).
In this case, Mr. Lange's acknowledgment of A.L. is not valid and is without legal effect. He admitted in the adjudication hearing that he was not the biological father of A.L. and that he had never had sexual relations with the mother of A.L. In Robinson, the court quoted the Planiol treatise on the precursor articles to La. Civ.Code art. 196 above:
Under La.Civ.Code art. 203, an illegitimate child is acknowledged by a declaration executed before a notary public, in *420 the presence of two witnesses, by the "mother" or "father." Although art. 203 does not expressly preclude executing an acknowledgment where no biological relationship exists, this conclusion is self-evident and definitional of an acknowledgment. An acknowledgment is an avowal emanating from the "mother" or "father" to establish maternal or paternal filiation. 1 M. Planiol, Treatise on the Civil Law § 1476 (La.St.L.Inst. transl.1959). The word "filiation" describes the fact of biological parentage. La.Civ.Code arts. 193-197. Thus, through the acknowledgment, the "mother" or "father" provides proof of maternal or paternal filiation, that is, biological parentage. Absent a biological relationship, the avowal is null. "A fact cannot be avowed when it has never existed." 1 Planiol[at] § 1490(2). If the acknowledgment is null, it produces no effects.
Succession of Robinson, 654 So.2d at 684.
Judicial Estoppel
Mr. Lange further contends that the State should be precluded and judicially estopped from asserting that Mr. Lange is not the biological father of A.L. because of its actions in establishing the order of child support. Regrettably, we can provide Mr. Lange no relief through the vehicle of judicial estoppel.
In Miller v. Conagra, Inc., 08-21 (La.9/8/08), 991 So. 2d 445, our Louisiana Supreme Court stated:
[T]he Supreme Court of the United States has generally described judicial estoppel as an equitable doctrine designed to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment. New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S. Ct. 1808, 1814-15, 149 L. Ed. 2d 968 (2001). Because it is an equitable doctrine, it is invoked at the court's discretion. Id. at 750, 121 S.Ct. at 1815.
Miller, 991 So.2d at 452.
In New Hampshire v. Maine, the United States Supreme Court articulated three non-exclusive but typically existing factors for determining whether judicial estoppel should apply:
First, a party's later position must be "clearly inconsistent" with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create "the perception that either the first or the second court was misled," Edwards [v. Aetna Life Ins. Co.], 690 F.2d [595], 599 (6th Cir.Mich., 1982). Absent success in a prior proceeding, a party's later inconsistent position introduces no "risk of inconsistent court determinations," United States v. C.I.T. Constr. Inc., 944 F.2d 253, 259 (C.A.5 1991), and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine's application in specific factual contexts.
New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. at 1815 (some citations omitted).
In the present case, we do not find judicial estoppel in favor of Mr. Lange on the basis presented. The three most typical *421 factors exist in his favor: (1) the State (DSS) is claiming that Mr. Lange's acknowledgment is invalid in order to deny custody and visitation, while the State (District Attorney) previously used the acknowledgment to obtain an order of child support against Mr. Lange. The State's current position is clearly inconsistent with its previous position; (2) the State previously persuaded the court to hear a Rule to set Child Support, and the court entered an order of child support against Mr. Lange, finding that he had a legal obligation to support "his" minor child; (3) Mr. Lange will not derive an unfair advantage by estoppel, or impose an unfair detriment on the State, because he is merely seeking custody of the child that he is already supporting.[2]
However, in this case, an additional factor under New Hampshire informs our decision in determining the propriety of estoppel. Our decision not to apply judicial estoppel to preclude the DSS from arguing an invalid acknowledgment is based upon the fact that, even prior to the order of child support, Mr. Lange himself invalidated his acknowledgment by admitting in open court, in March 2008, that he was not the biological father of A.L. We cannot stop the State from asserting a truth that Mr. Lange had already judicially confessed.[3]
Now having said that, we strongly admonish our State agencies for using the courts to obtain blatantly inconsistent orders and to create inequities against a party who, though uninformed of appropriate procedure, sought with his long-term partner to do what they and the family of the child thought was in the best interest of the child. That best interest was to rear A.L. with his half sibling (and two other older children being successfully raised by Mr. Lange) and to keep other family connections alive. This may or may not have been in the best interest of the child, depending upon the family connections at issue, but it certainly deserved investigation under the circumstances.[4] If exigencies existed that prevented an investigation, such as the time that it would have taken to get Mr. Lange certified or qualified, then at the very least the DDS and the District Attorney should have communicated with each other and prevented the issuance of an order of child support against a non-parent who had no legal obligations toward the child. This is particularly egregious since Mr. Lange had been excused from all further proceedings involving A.L. at the request of the State and had indicated "concerns over his (Mr. Lange's) actual paternity of the child" the day after A.L. was born and again in the Judgment of Adjudication.
At the oral argument of this matter, the DSS indicated that it did not know what the District Attorney's office was doing in getting an order of child support against Mr. Lange. We find this inexcusable. The order itself indicates that the child support payments are to be mailed to the designated Post Office box of the DSS. Therefore, these agencies cannot pretend *422 to be without knowledge of each other's inconsistent actions.
IV.
CONCLUSION
Based upon the foregoing, we must affirm the denial of Mr. Lange's petition to establish custody, as he initially used an inappropriate vehicle (false acknowledgment) to seek custody and visitation.
AFFIRMED.
NOTES
[1] While Mr. Lange had signed the birth certificate in February 2008, he disavowed paternity in March 2008 and did not file his "Petition to Establish Custody" until September of 2009, when A.L. was already one and a half years old, and had been in the custody of the State and in placement with his foster parents for basically his entire life.
[2] Mr. Lange has not, at least in the proceedings before us, legally contested the child support order.
[3] This finding does not negate or vitiate other avenues of pursuing custody in the future as a non-parent, as in Mckinley v. McKinley, 631 So. 2d 45, by fully arguing and presenting evidence of the best interest of the child, which was not done herein.
[4] It certainly appears that Mr. Lange's best intentions for this child have been demonstrated in that he did not appeal the order of child support against him, apparently because he has concerns that the foster parents cannot afford the care of the child. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566423/ | 592 S.W.2d 24 (1979)
John D. MULLINS, Appellant,
v.
MAIN BANK & TRUST, Appellee.
Nos. 8351, 8352.
Court of Civil Appeals of Texas, Beaumont.
November 1, 1979.
Jack M. McGinnis and Martin A. Gewertz, San Antonio, for appellant.
Stephen C. Caspers on behalf of John M. Killian, San Antonio, for appellee.
KEITH, Justice.
Appellant has perfected two separate appeals from judgments entered in post-judgment garnishment proceedings against two banks. While we have separate records, the questions presented in each appeal are identical and we will dispose of both appeals in a single opinion which will serve to support two separate judgments. We affirm for the reasons now to be stated.
On August 1, 1975, Main Bank recovered a judgment against appellant, John D. Mullins, another individual, and a corporation, in the sum of $145,651.80 with interest *25 thereon at the rate of ten percent per annum, and costs of suit. On September 26, 1978, Main Bank filed its application for a writ of garnishment after judgment, alleging under oath that the judgment was final, valid, and subsisting and remained unsatisfied. Further allegations were to the effect that appellant "has no property in his possession in this State subject to execution sufficient to satisfy said judgment" and "[t]he garnishment applied for is not sued out to injure either the Defendant or the garnishee."[1]
Two writs of garnishment were issued and served upon the same date as the application, one being served upon The American Bank of San Antonio (hereinafter "American Bank"), and the other upon Broadway National Bank (hereinafter "Broadway Bank"). American Bank answered on October 11, 1978, asserting that it had $11,000 in a checking account in the name of the appellant; Broadway Bank answered on October 3, 1978, asserting that it was indebted to appellant in the amount of $21,279.93. Judgment was entered in favor of Main Bank against each of the garnishee banks in the amounts shown in their respective answers, less an award of attorney's fees to each bank's lawyer. These judgments were both dated October 24, 1978.
On November 1, 1978, appellant filed his motion to vacate the judgment and for a new trial in each proceeding, both of which were "supplemented" by lengthy pleadings filed on December 1, 1978.[2] We have no statement of facts but the trial court did, at appellant's request, file extensive findings of fact and conclusions of law.
In this posture, the language found in David A. Carl Enterprises v. Crow-Shutt # 14, 553 S.W.2d 118, 120 (Tex.Civ.App. Houston [1st Dist.] 1977, no writ), is controlling:
"Since no statement of facts was brought forward, the trial court's findings are conclusive, and it must be presumed that the evidence was sufficient to support such findings. [citations omitted]"
See also, Guthrie v. National Homes Corporation, 394 S.W.2d 494, 495 (Tex.1965), making application of the same rule to jury findings.
In each instance, the trial court found that the post-trial garnishment proceedings followed the appropriate statute and rules governing such proceedings; that neither of the banks involved had any knowledge before the entry of the judgment in the garnishment proceedings that the funds on deposit in the respective banks belonged to any person other than the appellant; that appellant had "received actual and/or constructive notice of the garnishment proceedings [in each case] on or before October 20, 1978, as required by Tex.R.Civ.P. 633a (sic)."[3]
Appellant has presented scholarly briefs wherein he attacks the constitutionality of the statute and the procedural rules governing post-judgment garnishment proceedings. In doing so, he has marshalled the leading authorities from the United States Supreme Court which have changed the pre-judgment rules governing ancillary proceedings.[4]
*26 In Ranches & Farm Livestock Auction Co. v. First State Bank, 531 S.W.2d 167, 170-171 (Tex.Civ.App.Amarillo 1975, writ ref'd n. r. e.), the court held that Tex.Rev. Civ.Stat.Ann. art. 4076 and the rules governing post-garnishment are not unconstitutional. A similar result was reached in Pitts v. Dallas Nurseries Garden Center, Inc., 545 S.W.2d 34, 37 (Tex.Civ.App.Texarkana 1976, no writ), wherein we find this language:
"Post-judgment garnishment is a valid and constitutional method of enforcing a valid original judgment. After the rendition of a valid final judgment, the defendant must take notice of what will follow. Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S. Ct. 61, 69 L. Ed. 288 (1924); 25 Baylor L.Rev. 242."
See also, Professor William V. Dorsaneo's comments upon the subject to be found in "Creditors' Rights", 31 SW.L.J. 213, 220 (1977).
It has been the well-established rule in Texas for many years that the garnishment proceeding is ancillary to the main suit and that the defendant in the principal action was not a party nor was he required to be served with notice of the issuance or the service of the writ of garnishment. Missouri Pac. Ry. v. Whipker, 77 Tex. 14, 13 S.W. 639 (1890). However, it was proper for him to be made a party or to intervene in such ancillary proceedings. Whipker, supra.
The adoption of Rule 663a, effective January 1, 1978, in the language of the Supreme Court, now "affords the defendant [in the original proceedings] notice of the [garnishment] proceedings and informs him of some of his rights." Appellant also contends that he was entitled to service of process as in an original action with the usual answer datethe first Monday twenty days after servicebut we disagree.
The language of the rule precludes any such interpretation. The reference to Rule 21a a three-day ruleforecloses such a construction. The trial court found, as a fact, that appellant had more than the requisite three days' notice and did nothing about asserting his rights in and to the funds standing in his name in the two garnishee banks. We have no evidence to the contrary; consequently, the finding and conclusion of the trial court does not reflect error.
We have examined the other points brought forward in accordance with the applicable rules governing our review of the record on appeal and do not find error. The judgment in each of the cases is in all things affirmed, and we order separate judgments to be entered in our minutes to certify to such facts.
AFFIRMED.
NOTES
[1] It is apparent that Main Bank followed the provisions of Tex.Rev.Civ.Stat.Ann. art. 4076 (1966):
"The clerks of the district and county courts and justices of the peace may issue writs of garnishment, returnable to their respective courts, in the following cases:
* * * * * *
"3. Where the plaintiff has a valid, subsisting judgment and makes affidavit that the defendant has not, within his knowledge, property in his possession within this State, subject to execution, sufficient to satisfy such judgment."
[2] We note in each record that an order was signed on December 4, 1978, reciting that on November 27, 1978, the motion to vacate judgment and new trial was presented to and overruled by the trial court. Appellant duly excepted and gave notice of appeal from the entry of these orders.
[3] The adverb "sic" appears in parentheses in each of the findings. The rule to which the trial judge meant to refer was Tex.R.Civ.P. 663a (Supp.1979).
[4] See, e. g., Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566403/ | 34 So. 3d 860 (2010)
STATE of Louisiana
v.
Melvin B. McDOWELL.
No. 2010-KK-0409.
Supreme Court of Louisiana.
May 7, 2010.
*861 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566412/ | 34 So. 3d 15 (2010)
JENKINS
v.
STATE.
No. 4D09-2959.
District Court of Appeal of Florida, Fourth District.
May 19, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/732679/ | 104 F.3d 353
NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.Motunrayo IGE, Plaintiff-Appellant,v.UNITED STATES ATTORNEY'S OFFICE, Keith D. Krakauer, Mark A.Kirsch, Thomas J. Farrell, Defendants-Appellees.
No. 96-2390.
United States Court of Appeals, Second Circuit.
Nov. 8, 1996.
Appeal from the United States District Court for the Eastern District of New York.
APPEARING FOR APPELLANT: MOTUNRAYO IGE, PRO SE, OXFORD, WISCONSIN
APPEARING FOR APPELLEES UNITED STATES ATTORNEY'S OFFICE, KRAKAUER, & KIRSCH: DEBORAH B. ZWANY, RICHARD M. MOLOT, ASSISTANT UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK
APPEARING FOR APPELLEE FARRELL: LEONARD WEINSTOCK, GARBARINI & SCHER, P.C., NEW YORK, NEW YORK
E.D.N.Y.
AFFIRMED.
Present FEINBERG, WALKER, Jr.* and JACOBS, Circuit Judges.
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York (Amon, J.), and was submitted.
1
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
2
Plaintiff-appellant Motunrayo Ige, proceeding pro se, appeals from the order of the district court dismissing his complaint.
3
On December 2, 1994, Ige filed a complaint alleging that the United States Attorney's Office, Assistant United States Attorneys Keith D. Krakauer and Mark A. Kirsch (collectively, the "federal defendants"), and his former Legal Aid attorney Thomas J. Farrell, deprived him of his constitutional and statutory rights. Specifically, Ige alleged that in retaliation for his refusal to accept a plea agreement, the prosecutor and his defense attorney conspired to switch his trial judge "from a black judge to a white judge." Ige, furthermore, alleged that this switch deprived him of his rights under the Fifth, Sixth, Eight, and Fourteenth Amendments to the Constitution, as well as under 42 U.S.C. § 1983.
4
On July 31, 1995, the federal defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12, or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. The federal defendants admitted that Ige's criminal case was originally assigned to Judge Sterling Johnson, an African-American, and was subsequently reassigned to Judge Denis R. Hurley, who is white. However, the federal defendants explained that Ige's case was one of seventy-eight criminal cases randomly reassigned to the newly-appointed Judge Hurley by the clerk's office and submitted a document entitled "Criminal Cases Selected Randomly to be Reassigned to Judge Denis R. Hurley."
5
On November 11, 1995, Farrell also moved to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12. On January 31, 1996, the district court granted the defendants' motions to dismiss. On March 29, 1996, the district court denied Ige's motion for reconsideration. This appeal followed.
6
We review the district court's order dismissing Ige's complaint de novo. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996); Valley Disposal, Inc. v. Central Vermont Waste Management Dist., 31 F.3d 89, 93 (2d Cir.1994). Moreover, we liberally construe pleadings when the plaintiff proceeds pro se or alleges a civil rights violation. Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993), cert. denied, 114 S.Ct. 2749 (1994).
7
A plaintiff, pursuant to 42 U.S.C. § 1983, may recover damages for the deprivation, under color of state law, of his rights, privileges, or immunities secured by the Constitution. Graham, 89 F.3d at 79. Similarly, in a Bivens action, the victim of a constitutional violation may recover damages against federal officials, despite the absence of any statute specifically conferring such a cause of action. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Here, Ige claims his constitutional rights were violated by an alleged conspiracy between federal prosecutors and his defense counsel to transfer his case.
8
It is clear, at the outset, that Ige cannot maintain a Bivens action against the United States Attorney's Office. An action against a federal agency is barred under the doctrine of sovereign immunity unless immunity has been explicitly waived. Robinson, 21 F.3d at 510. Similarly, Ige cannot maintain an action against the federal defendants in their official capacities. Id. Therefore, these claims were properly dismissed for want of subject matter jurisdiction.
9
The district court also properly dismissed Ige's action against the federal defendants in their individual capacities under the doctrines of absolute and qualified immunity. The doctrine of absolute immunity shields a prosecutor from liability for virtually all acts within the scope of his duties while pursuing a criminal prosecution, regardless of motivation. Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir.1996); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1993). Thus, to the extent that a prosecutor who seeks or acquiesces in the assignment of a trial judge acts within the "traditional function of a prosecutor," he is absolutely immune from liability. Doe, 81 F.3d at 1209. Ige asserts that the assignment of a judge is an administrative act, and that prosecutors do not enjoy absolute immunity for administrative acts. However, the assignment of judges is not an administrative task performed by prosecutors.
10
Even assuming, arguendo, that the federal defendants are not entitled to absolute immunity, they would be entitled to qualified immunity which shields government officials from liability for damages arising from the performance of their discretionary official functions. Ying Jin Gan v. City of New York, 996 F.2d 522, 531 (2d Cir.1993); Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.1993). Under the doctrine of qualified immunity, a government official is protected against liability if a reasonable person would not have known that his conduct would violate a clearly established constitutional right. Ying, 996 F.2d at 531. Here, the federal defendants would be entitled to qualified immunity because the right to have one's case heard before a particular trial judge, or more specifically a trial judge of a particular race, has not been recognized as falling within the purview of any constitutional right. The district court, therefore, properly dismissed Ige's claims against the federal defendants. In any event, Ige's assertion that the transfer was in any way related to the race of the jurists is purely conclusory.
11
The district court also properly dismissed Ige's claims against Thomas Farrell, his former Legal Aid attorney. In general, the Legal Aid Society does not "act under color of state law" by virtue of the financial or other benefits it receives from the State. Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1155 (2d Cir.1971). However, a public defender is not immune from liability for allegedly conspiring with state officials to deprive a criminal defendant of his federal constitutional rights. Tower v. Glover, 467 U.S. 914, 916 (1984).
12
Ige's complaint, however, fails to state a valid claim of conspiracy. Specifically, the complaint fails to allege a specific agreement or an overt act committed in the course of the alleged conspiracy. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1233 (1990). The complaint's conclusory allegations cannot withstand a motion to dismiss. Sykes, 13 F.3d at 521.
13
For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.
*
Circuit Judge John M. Walker, Jr., recused himself. Two judges may determine this matter, pursuant to § 0.14 of the Local Rules of the Second Circuit | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/8304516/ | SENTEB, J.
The hill was filed in this cause to recover on a fire insurance policy issued by defendant to complainant covering' on a stock of drugs and the store fixtures and furnishings, including soda fountain equipment; $2500 on stock of merchandise, $900 on office furniture and fixtures, $600 on the soda fountain and appliances. The defendant filed a petition for removal to the federal court, and upon the petition being sustained, complainant took a nonsuit, and reinstituted the suit in Lauderdale county for the sum of $2999.50, so as to bring the suit within the jurisdiction of the chancery court of Lauderdale county.
The only question made by the defendant is the alleged failure of complainant to comply with the iron safe clause or provision contained in the policy. The Chancellor held that under the facts there had been a substantial compliance by complainant with the iron safe clause, and that the value of the stock of merchandise, the store fixtures and the soda fount, etc., exceeded the amount sued for after applying the three-quarter value clause contained in the policy, and rendered a judgment in favor of complainant and against the defendant for the siun of $2999.50, the amount sued for, plus interest thereon from December 18, 1925, making the aggregate sum of $3337.50. From the decree of the Chancellor the defendant lias appealed to this court, and has assigned numerous errors. To certain of the finding of facts by the Chancellor the complainant excepted, and has filed the record for error, and has assigned errors, all of which go to the finding of certain facts and rulings by the court on certain matters of evidence.
The record shows that the stock of merchandise, store fixtures and the soda fountain, was totally destroyed by fire on Sunday night, October 18, 1925, at about 8:30 or 9:00 o’clock. The fire did not originate in the building occupied by complainant, but originated in an adjoining storehouse. It appears that a few minutes before the fire was discovered in the adjoining storehouse, complainant’s clerk left the drug store at the invitation of a friend to drive a distance of about a mile and one-half, and to be gone but a few minutes. Before leaving the store he locked the back door and left the lights in the store burning, and locked the front door, with the intention of returning in a short while, and put the books into the iron safe and closed the store for the night. In a few minutes after he left the store, fire was discovered in the adjoining storehouse, and before *515complainant’s clerk got back from the short trip he made with his friend, the fire had broken through into the store of complainant, and because of the intense heat the clerk was unable to enter the store and get the books out. The clerk had only been gone about fifteen minutes, but the fire had gained such headway in the adjoining building that it had broken through the partition wall and was burning furiously in the storehouse of complainant.
The Chancellor held that under these facts the store was not open for business at the time of the fire, and this holding of the Chancellor is made the basis of an assignment of error by complainant. This question will be later discussed in this opinion.
The iron safe clause contained in the policy of insurance sued on was in the usual form, and as follows:
“Inventory-Iron Safe Clause — (Requirement to keep books and inventory). It is made a condition of this insurance: (1) That the assured under this policy shall take an inventory of the stock and other personal property hereby insured at least once every twelve months during the term of this policy, and unless such inventory has been taken within one year prior to the date of this policy, one should be taken in detail within thirty (30) days thereafter; (2) That the assured shall keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and credit; (3) That the assured shall keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store mentioned in the within policy is not actually open for business; (4) That in case of loss the assured shall produce such books and last inventory.”
It appears from the record that the complainant had a fireproof iron safe in the storehouse in which he was accustomed to keep his books and papers. The books kept ordinarily in the safe consisted of a ledger, on which was entered all credit sales, and a copy of 'the last inventory, itemized, which had been transcribed from the inventory sheets into the ledger; all wholesale accounts, showing merchandise purchased and. from whom and the amounts thereof; a cash book showing the amount of each day’s cash sales. The cash book so kept did not set out in detail the items sold, but did set out the amount of the daily sales or cash receipts, and the ledger, on which were entered all credit sales, was in the form of an account book showing the accounts of the various customers, and would show not only the items sold to the respective customers but would show any payments made on the respective accounts by customers, this much is fairly inferable from the record. At the time of the fire the ledger on which had been transcribed the last inventory taken, and in itemized form, and which also showed the wholesale accounts *516representing purchases made by complainant from time to time, was not in the iron safe, and neither was the cash book which showed the daily cash receipts. The ledger or credit account book, showing the credit sales to various customers, the dates and'items of the respective sales, and also showing the aggregate of the last inventory, but not the itemized inventory, and perhaps some other documents unnecessary to refer to, were in the iron safe at the time the fire occurred. The other books usually kept in the iron safe, except during business hours, had not been put in the safe at the time the clerk left the store to make tire short trip in an automobile at the invitation of a friend. lie had locked the store door, but left the lights burning, with the intention of returning in a short while to put the books into the safe and to close the store for the night.
The first question presented by the defendant on this appeal is with reference to the sufficiency of the books and records usually kept in the iron safe by complainant. It being the contention of defendant on that matter that a compliance with the second provision in the iron safe clause required that complainant should keep a cash boob showing the items sold for cash. We do not think that this contention is well taken. If the cash book showed the amount of each day’s sales, we think it would be in substantial compliance with the provision in the iron safe clause referred to. Whatever may be the rule in other jurisdictions, wo think that it is well settled by the decisions of the Supreme Court of this State, and especially under the construction given to section 22, chapter 160 of the Acts of 1895, that the rule of substantial compliance applies. (Ins. Co. v. Whitaker, 112 Tenn., 151, 79 S. W., 119; 64 L. R. A., 451; McNutt v. Virginia F. & M. Ins. Co. (Tenn. Ct. App.), 45 S. W., 61, and cases cited.)
We are of the opinion that complainant had fully complied, in a substantial way, with the provisions of the iron safe clause as to the books and records, and the manner of keeping the books and accounts in an iron safe. The serious question presented by defendant on this appeal is with reference to certain of these necessary boobs and records being out of the safe at the time the fire occurred. This case is very similar to the facts in McNutt v. Virginia F. & M. Ins. Co., supra. Both parties have filed excellent briefs in support of their respective contentions. In the excellently prepared brief of the defendant much stress is put upon the importance of literal compliance with all the provisions of the iron safe clause, as being in the contemplation of the parties to the contract of insurance, and many cases and authorities are cited. There seems to be a decided conflict among the appellate courts of the various States. In many jurisdictions the rule of rigid construction is employed in applying the iron safe clause similar to the one contained in the policy sued on *517in this case, but an examination of these cases discloses that no attempt by the assured was made to comply with the provisions, or such an insufficient eoinpliance as to be held equivalent to no compliance at all. (Huff v. Ins. Co., 110 Va., 585; Phoenix Ins. Co. v. Sherman, 110 Va., 435, 66 S. E., 81; Delaware Ins. Co. v. Munger (Tex.), 74 S. W., 792.)
Our own case of Hughes Bros. v. Aetna Ins. Co., 148 Tenn., 293, is relied upon by defendant in support of its contention in the present case. The case of Hughes Bros. v. Aetna Ins. Co., when read in connection with other eases by the Supreme Court of this Slate (McNutt v. Va. F. & M. Ins. Co., supra, and Ins. Co. v. Whitaker, supra) is distinguished from this ease, in that there was no compliance or effort to comply with that provision of the iron safe clause requiring the assured to keep his book of credit sales in- a fireproof safe. In that case it appears that the assured used what is referred to as the MeCaskey system for its credit sales. This system employs a large cabinet with drawers and compartments in the drawers where the accounts of customers are kept on tickets, and the tickets are made with the use of carbon backs so that a duplicate or copy of the ticket is furnished the customer at the time of sale, and the original ticket of the sale is kept and preserved in the cabinet, and in the compartment of the cabinet for the particular customer. It is a well-known fact that many retail merchants, especially grocery merchants, use this 'system, and do not keep a ledger account of credit sales, or an account book of credit sales. The Supreme Court held in the Hughes case that a failure to keep an account book showing the credit sales so the same could be kept in the iron safe to be produced in the event of a fire was in violation of the provision in the iron safe clause attached to the policy and made a part of the contract of insurance, and that the method or system employed by the assured in that case, the MeCaskey system, was not in substantial compliance with the provision in the iron safe clause. The Mc-Nutt case, decided by the old'Court of Chancery Appeals, and reported in 45 S. W., 61, and affirmed by the Supreme Court, is distinguished from the facts in the Hughes case, in that the assured in the McNutt case kept such necessary books and records customarily in his iron safe in substantial compliance with the provisions of the policy, but on the night of the fire certain of these books and records, including the inventory, etc., were by mere inadvertance left out of the safe, but the essential facts necessary to arrive at the proximate value of the stock of goods, etc., destroyed by fire had been supplied by procuring from the bank the deposits representing cash sales and other documents, so that the value of the stock of goods could be arrived at by documentary evidence. In the Hughes case there was no attempt to comply with the provisions contained in *518the iron safe clause with reference lo keeping a book record of the credit sales. The distinction,. we see, in the Hughes case and the McNutt case, is clear and' unmistakable, and the two cases are not in conflict. In fact, Chief Justice Green, speaking for the court in the Hughes ease, refers to and cites the McNutt case, and from which it clearly appears that the Hughes (tase was not intended to overrule the holding by the Court of Chancery Appeals, affirmed by the Supreme Court in the McNutt case. The facts in the McNutt case are very similar to the facts of this case, as nearly so as any two cases could well be. In this case it clearly appears that the fire which destroyed complainant’s stock of merchandise, etc., -was not the result of any negligence or fault upon the part of complainant. While it is perhaps true that the system of bookkeeping which complainant used in his business was not up to the highest standards, but was in keeping with the system usually employed by small mercantile concerns conducting a business in a small town where the services of an expert bookkeeper are not employed. In McNutt v. Va. F. & M. Ins. Co., supra, the court quotes at length, and with unqualified approval, the following excerpt from an opinion rendered by Judge McCormick in the case of Assurance Co. v. Redding, 15 C. C. A., 619 :
“Yiewed ‘as a set of books’ from the standpoint of an expert in that scientific system of bookkeeping which obtains in the business of an insurance company which has pushed its business at least from the chief city in Canada to the obscure hamlet of Greenville, Florida, these books in evidence are primitive, to a degree that may test his temper, if' not his skill; but lo impartial jurors patiently searching for proof to support a recovery on a contract of indemnity for a loss insured against, and incurred without fraud or fault on the part of the insured, these books tell a plainer story than the expert, unconsciously or strenuously looking to them for1 ground of forfeiture, was able to read in them. He could make nothing out of their entries to show7 that the insured had on hand in h’is store, at the time of the fire, goods to such an amount in value that three-fourths thereof exceeded the amount of insurance -written thereon, or to show that the insured had any goods in his store at the time of the fire. To our view, the very imperfections of these books vouch their good faith. It is insisted that the accounts of goods purchased should have set out these specific articles, and the value of each, and that the account of cash sales should have been equally particular as to articles sold, and the price; for, it is argued, the insured may have sold goods at one-tenth of their cost price, for aught that appears in these entries of cash sales. . . . The credit sales are itemized, as it is not *519only customary but necessary. Now, when the articles purchased, the goods sold on credit, and these sold for cash, are all itemized, posted, footed up, and balanced, barring moths, rust and thieves, the difference would show the goods remaining; and the time. spent, shopwear of the stock, would either be wholly unnecessary, or in the average country store, an expensive and worthless cheek on unscientific bookkeeping. When the circumstances of these respective parties are impartially considered, it is highly improbable that such a degree of extravagance or of proficiency in bookkeeping on the part of the insured, was in the contemplation of either of them and certainly was beyond the conception of the insured, and cannot be considered to have been in the mind of the agent of the insurer, without a high impeachment of his integrity, for he must have known that such a set of books as the contention now made by his company requires would not be kept.”
Following the above-quoted excerpt from the opinion of Judge McCormick, the writer of the opinion in the McNutt case uses even stronger and more pointed language in discussing the question as to the unscientific method in which the books of the usual rural merchant are kept.
In the McNutt case the court, frankly states, that the most serious question presented was with reference to the assured in that ease having inadvertantly left certain of the records out of the safe, and which were destroyed. In that case as in the present case, the assured undertook to supply the record of the cash sales and other records. In this case the amount of the last inventory taken within the twelve months’ period was contained in the ledger book which was in the safe at the time the other books were destroyed. The itemized inventory was in one of the destroyed books, but the aggregate amount was in the ledger book in the safe, and showed definitely the amount of the last inventory taken within the twelve months’ period. It is contended for defendant on this appeal that the production of this book showing the aggregate amount did not meet the requirements of the provision contained in the iron safe clause, and that only an itemized inventory could meet the requirement. We cannot agree to this contention. This was a record entry made after the inventory had been completed and had been transcribed in itemized detail on another book. The inventory had been taken and transcribed into a permanent record book, which book was destroyed in the fire. It had usually been kept in the iron safe. The entry on the ledger that was in the safe stated the aggregate amount of the inventory covering the stock of merchandise, store furniture and fixtures, and the soda fountain and appliances. Under the statute in force in Tennessee and construed by the Supreme Court in the *520Whitaker ease, and as held by the Supreme Court in the Hughes ease and the McNutt case, only substantial compliance is required, and to this extent the authorities cited and relied upon by the defendant are not in accord. with the decisions in this State. After the fire occurred the complainant procured and proved copies of all invoices of merchandise bought since the last inventory. This became necessary because the account book in which these wholesale accounts were kept was destroyed in the fire. Objection was made to this evidence, and the exceptions thereto overruled by the Chancellor, and the action of the Chancellor in so ruling is made the basis of certain assignments of error. We think this was clearly competent under the rule permitting secondary evidence to supply a lost or destroyed document. Besides these duplicate invoices would be more reliable than any book entry kept by complainant, which would be but entering onto the. books the amount and dates of the purchases. To say the least of it, these duplicate invoices, when properly proved, afforded all necessary information to the defendant as to the amount of new merchandise purchased by complainant since the date of the last inventory taken of the stock. It also appears that the book on which the cash sales and cash receipts were kept was destroyed, and complainant by way of supplying this destroyed record of the cash sales procured the.bank in which the complainant made his deposits to furnish a duplicate of all deposits made, and these deposits represented the cash sales except small amounts referred to as petty cash items, winch were paid out of the cash drawer. It appears that all items of more than $1 were paid by check, and only small items of freight bills were paid in cash. The cash book which was destroyed in the fire did not undertake to set out in detail the cash sales, but did show the amount of cash received each day. It appears that when any cash was paid out of the drawer a ticket was made of'the same and placed in the cash drawer, and the amount of these tickets was added to the cash at the end of the day’s business and the aggregate was entered on the cash book. It is shown that these small cash Items would amount to less than $100 a year, and such an inconsiderable sum as would not materially affect the cash sales as reflected in the deposits made, if not daily, but regularly in the bank. All the evidence introduced by the complainant with reference to the bank deposits, cash items, etc., was objected to by the defendant, and the exceptions overruled by the Chancellor and his action in so doing was made the basis of certain assignments of error. We think this evidence is competent and material, for the purpose of supplying the evidence of the cash sales destroyed by the fire.
Without reviewing all the evidence in detail, and without any further elaboration on the facts, we think that this case is controlled by *521the cáse of McNutt v. Va. F. & M. Ins. Co., supra. In fact, the present ease in many respects is better supported by the facts than the McNutt case.
On the question as to whether complainant’s store had been closed for business for the day, the Chancellor found this issue in favor of defendant. Under the facts as above stated, it is doubtful whether the store had been actually closed for business, and was actually closed for business at the time the fire occurred. In the McNutt ease the store had been closed for the night, the lights put out, and the owner and the clerk had gone to their homes, and the fire broke out late in the night in an adjoining storehouse, and hence the question was not in that case as to whether the store had been closed for the night at the time of the fire. In this case the clerk, at the time he locked the store door, left the lights burning, and got into the automobile with a friend, to go a short distance with the intention of returning in a few minutes. It is true that he states that he left with the intention of returning in a few minutes to put away the books and to close up the store for the night. It is insisted for complainant with much earnestness that this did not constitute a closing of the store for the day, but was temporarily closed for a few minutes’ absence and that there remained something further to be done by the clerk before finally closing the store for the night. In this connection it is insisted by complainant that the Chancellor erred in holding that the store had been closed for business for the day. It is clear under the evidence that the clerk, at the time he locked the store door and left, expected to return to the store and open the door and conclude such business as he had left unfinished, and for this reason he left 'the lights burning in the store at the time he left. He' was to be gone but a few minutes, and under the evidence he was not gone but a short time, probably less than half an hour. We think it very probable that upon his return he would have opened the store and would have waited on such customers as may come in before he finally put the books away, put out the lights and locked the door and left the store for the night. However, in the view of the case we have taken, we do not think it necessary or important that this question be definitely decided.
We will add that it is clear from the record that the actual value of the merchandise and property destroyed by the fire exceeded the amount sued for after applying the three-quarter value clause. There is no suggestion of fraud or wrongdoing on the part of complainant. It was an honest loss and in no sense the result of any fault or negligence upon the part of the assured. lie had complied in a substantial way with the_ provisions of the contract of insurance. The insurance company was not left to doubt or speculation as to the approximate amount of the value of the property destroyed. The proof *522of the value of the loss was by record evidence, and we think fully supplied the matters contained in' the books destroyed, and this documentary evidence, being competent, afforded an easy basis and method of arriving at the approximate value of the property destroyed, without having to rely upon uncertain oral evidence or merely speculative estimates.
It results that all assignments of error are overruled, and the decree of the Chancellor is affirmed. The defendant insurance company and sureties on the appeal bond will pay the cost of this appeal.
Owen and Heiskell, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1566563/ | 34 So. 3d 270 (2010)
STATE of Louisiana
v.
Wilbert MATTHEWS.
No. 2009-K-2365.
Supreme Court of Louisiana.
April 23, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645068/ | 994 So. 2d 1180 (2008)
Demauntri K. DUMANTS, a/k/a Max Charlot, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-2344.
District Court of Appeal of Florida, Third District.
November 5, 2008.
Demauntri Dumants, a/k/a Max Charlot, in proper person.
Bill McCollum, Attorney General, for appellee.
Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
PER CURIAM.
Affirmed. See State v. Dickey, 928 So. 2d 1193 (Fla.2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566468/ | 34 So. 3d 548 (2010)
Ivan Russell McCLELLAN
v.
STATE of Mississippi.
No. 2009-KA-00327-SCT.
Supreme Court of Mississippi.
March 25, 2010.
Rehearing Denied May 27, 2010.
*549 Office of Indigent Appeals by George T. Holmes, Leslie S. Lee, Gary Goodwin, attorneys for appellant.
Office of the Attorney General by Ladonna C. Holland, attorneys for appellee.
*550 Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
KITCHENS, Justice, for the Court:
¶ 1. Following a jury trial in Lowndes County Circuit Court, Ivan Russell McClellan was convicted of possessing two methamphetamine precursors and possessing 250 dosage units of pseudoephedrine under Mississippi Code Sections 41-29-313(1)(a) and 41-29-313(2)(c), respectively. McClellan was sentenced as a habitual offender under Mississippi Code Section 99-19-81 to serve thirty years in the custody of the Mississippi Department of Corrections for the precursor conviction and five years for the pseudoephedrine conviction, those sentences to run concurrently.
FACTS
¶ 2. On December 5, 2007, Officer John Pevey of the Columbus Police Department responded to a call from dispatch informing him that a white male and a white female had just made large purchases of pseudoephedrine at Fred's Dollar Store in Columbus, Mississippi. At trial, Pevey explained that pseudoephedrine is the main ingredient used for the manufacture of methamphetamine. A Fred's sales clerk told police that the man and woman each had purchased four boxes of pseudoephedrine, for a total of eight boxes. The sales clerk also related to police that the pair had left the store in an older-model blue automobile, and that the vehicle was last seen traveling east on the Highway 82 bypass.
¶ 3. Pevey set out to find this car while Mississippi Bureau of Narcotics Agent Eddie Hawkins proceeded to Fred's Dollar Store to investigate the purchase further. Hawkins learned from the Fred's sales clerk that the couple had left in an older-model blue Mustang with an Alabama tag, and that the individuals had used identification to purchase the pseudoephedrine which identified them as Ivan McClellan and Katina McGee. Hawkins relayed this information to Pevey via radio.
¶ 4. Pevey subsequently located the Mustang at Dutch Village Family Pharmacy. Pevey parked across the street to maintain surveillance of McClellan and McGee, and he continued to follow them after they left Dutch Village and proceeded to Dollar General Store, where the suspects learned the store did not carry pseudoephedrine products. As Pevey continued to follow the suspects, Hawkins went into the Dutch Village Family Pharmacy and learned that the suspects had purchased more pseudoephedrine. Again, Agent Hawkins relayed this information to Officer Pevey via radio.
¶ 5. From Dollar General, Pevey followed McClellan and McGee onto Highway 50 and ultimately stopped them on Highway 182 between New Hope Road and Mount Vernon Road. Pevey testified that, after he had verified the identities of the occupants of the vehicle as Ivan Russell McClellan and Katina McGee, he obtained consent to search the vehicle.[1] Upon searching the car, Officer Pevey discovered a total of 308 pseudoephedrine pills, three cans of starter fluid, three cans of granular drain opener, a pack of unopened lithium batteries, and a plastic bag with Fred's Dollar Store insignia on it.[2] Also found were a bottle of isopropyl alcohol and another box of pseudoephedrine pills in a suitcase inside the car. At trial, *551 Agent Hawkins testified that each of these items is a known methamphetamine precursor, and he explained how each of these products is used in manufacturing methamphetamine.
¶ 6. McClellan and McGee immediately were arrested, and, in due course, McClellan was charged in a two-count indictment. The first count charged a violation of the provision of the Mississippi Code that prohibits the simultaneous possession of two or more chemicals appearing on a list of identified precursor materials used in the manufacture of methamphetamine under circumstances demonstrating that the possessor knew (or reasonably should have known) that the materials would be used illegally to manufacture methamphetamine. Miss.Code Ann. § 41-29-313(1)(a) (Rev.2009). The materials named in the indictment were lithium (batteries), sodium hydroxide (granular drain opener), ether (starter fluid), and isopropyl alcohol. The second count charged a violation of the provision of the Mississippi Code that prohibits the possession of 250 dosage units of pseudoephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine will be used to manufacture a controlled substance unlawfully. Miss.Code Ann. § 41-29-313(2)(c)(I) (Rev.2009). McClellan was convicted on both counts.
ISSUES
¶ 7. McClellan raises four issues on appeal: (1) whether there was an illegal search, requiring exclusion of (A) the items found in the car and (B) his confession to police, (2) whether the verdict is supported by the weight of the evidence, (3) whether the trial court allowed improper impeachment evidence, and (4) whether merger prohibited prosecution for both possession of precursors and possession of more than 250 dosage units of pseudoephedrine.
DISCUSSION
1.A. Motion to Suppress the Seized Items
¶ 8. McClellan moved to exclude the items seized in the search of his vehicle, but the motion was overruled. The trial judge held that the stop of McClellan's vehicle was valid and that it was made with sufficient probable cause for an investigatory stop. McClellan claims that the officers lacked reasonable suspicion to make an investigatory stop because the initial description of the suspect vehicle by police dispatch was vague.
¶ 9. A police officer may conduct an investigatory stop if he or she has "reasonable suspicion, grounded in specific and articulable facts, that a person [the officer encounters] was involved in or is wanted in connection with a completed felony . . . or `some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.'" Williamson v. State, 876 So. 2d 353, 355 (Miss.2004) (quoting Floyd v. State, 500 So. 2d 989, 992 (Miss.1986)). Reasonable suspicion may be based on the officer's personal observations or an informant's tip, as long as the tip bears an indicium of reliability. Id. (citing Floyd v. City of Crystal Springs, 749 So. 2d 110, 118 (Miss. 1999)). In Williamson, police received information from pharmacy employees that two white males had purchased large quantities of pseudoephedrine from two different stores. Id. at 354. One of the tipsters told police that the two white men had left the store in a white van, and he gave police the license plate number and the direction in which he had seen the van traveling. Id. A police officer located the van and followed it to a Fred's Dollar Store, where he obtained consent to search the vehicle. Id. In the Williamson case, this Court concluded that the information provided by *552 the pharmacy employee, "the color of the van, the number and race of the occupants, the license plate number and the direction of travel, including the name of the street," provided a sufficient basis for the officer's reasonable suspicion to stop the vehicle. Id. at 356.
¶ 10. While in this case the initial description may have been somewhat vague, police were able to accumulate many more details about the individuals, their pseudoephedrine purchases, and the vehicle in which they were traveling before officers made the investigatory stop. Agent Hawkins investigated at both Fred's Dollar Store and Dollar General Store soon after the suspects had driven away from each. Hawkins relayed to Officer Pevey the information he had obtained, and Pevey subsequently made the investigatory stop after reasoning that he had enough information, or probable cause, to do so. Thus, the trial court did not err in denying McClellan's motion to suppress the fruits of the vehicle search.
1.B. Motion to Suppress the Confession
¶ 11. After McClellan was arrested and Mirandized pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he gave a statement to police admitting that he was "going to take these items and make methamphetamine." He added, "The female that was with me was helping me get some of the items needed. . . . I guess she was going to help me cook. . . . I was going to use the finish [sic] product myself and Katina was going to use the product also." At trial, McClellan moved to suppress this statement, claiming that it was the product of an illegal arrest, but the motion was denied.
¶ 12. "To effect arrest for a felony, either with or without a warrant, a police officer must have reasonable cause to believe a felony has been committed, and reasonable cause to believe that the person proposed to be arrested is the one who committed it." Jones v. State, 841 So. 2d 115, 125 (Miss.2003). As established above, Officer Pevey had probable cause to stop McClellan and was given consent to perform a search of his car. Upon finding the pseudoephedrine pills, starter fluid (ether), granular drain opener (sodium hydroxide), lithium batteries, and isopropyl alcohol, Officer Pevey had reasonable cause to believe that McClellan had committed the felony of possessing precursors for methamphetamine. Only after being arrested and informed of his Miranda rights did McClellan make his incriminating statement. Thus, the trial judge did not err in refusing to suppress his confession.
2. Weight of the Evidence
¶ 13. When reviewing a claim that the verdict was against the overwhelming weight of the evidence, the evidence is weighed in the light most favorable to the verdict. Bush v. State, 895 So. 2d 836, 844 (Miss.2005). This Court will not order a new trial unless it finds that the verdict "is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id.
¶ 14. McClellan argues that the State did not prove that he had actual or constructive possession of the pseudoephedrine or the methamphetamine precursors. Although all of the materials were found in McClellan's car, he argues that the only substance within his control was the 212 dosage units of pseudoephedrine. The rubbing alcohol and ninety-six dosage units of pseudoephedrine were found in McGee's luggage, and the cans of starter fluid and granular drain opener were found in the back seat. McClellan also points out that only McGee purchased *553 pseudoephedrine at the Dutch Village store.
¶ 15. To support a conviction for possession of a controlled substance, "there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it." Wall v. State, 718 So. 2d 1107, 1111 (Miss.1998) (quoting Curry v. State, 249 So. 2d 414, 416 (Miss. 1971)). Moreover, "[i]t is quite possible to have joint constructive possession." Wall, 718 So.2d at 1111 (citing Powell v. State, 355 So. 2d 1378, 1379 (Miss. 1978)).
¶ 16. McClellan was the operator of the vehicle in which the contraband was found, and there was nothing to rebut the presumption that he was in constructive possession of the contents of the vehicle. Through his confession, he admitted that he was "aware of the presence and character of the particular substance and was intentionally and consciously in possession of it." Id. In his statement, he admitted to police that McGee was helping him acquire the ingredients for methamphetamine and that the two of them intended to manufacture and use the finished product. Accordingly, we find that the verdict was not against the overwhelming weight of the evidence.
3. Evidence of Prior Conviction
¶ 17. McClellan was convicted of burglary on July 3, 1996, and received a three-year sentence.[3] At the close of the State's presentation of the evidence, the trial judge, after finding that the probative value of admitting McClellan's prior conviction outweighed its prejudicial effect under Peterson v. State, 518 So. 2d 632 (Miss. 1987), ruled that the State could use McClellan's prior burglary conviction as impeachment evidence, pursuant to Mississippi Rules of Evidence 609(a)(1)(B), should he choose to testify on his own behalf. Following the trial court's ruling, McClellan chose not to testify. McClellan argues on appeal that the trial court's ruling was an abuse of discretion that resulted in his inability to put on a defense.
¶ 18. Where a criminal defendant chooses not to testify after the trial court has ruled that his or her prior convictions may be used as impeachment evidence, the defendant is procedurally barred from arguing on appeal that such a ruling prevented his putting on a defense or had a "chilling effect" on his right to testify if he fails to proffer his proposed testimony. Heidelberg v. State, 584 So. 2d 393, 395 (Miss. 1991). "At the very least, a defendant wishing to present the point on appeal, absent having taken the witness stand himself, must preserve for the record substantial and detailed evidence of the testimony he would have given so that we may gauge its importance to his defense." Id. Because McClellan failed to proffer his testimony, he is procedurally barred from arguing that the trial court's ruling which would have allowed the State to impeach him with his prior burglary conviction prevented his putting on a defense.
4. Merger
¶ 19. McClellan argues that the charge of the possession of 250 dosage *554 units of pseudoephedrine should merge into the offense of possession of precursors, and, therefore, he should not have been charged and convicted of both offenses, as they arose from the same set of facts. In other words, McClellan argues that these two convictions amount to double jeopardy, or multiple punishments for the same conduct.
¶ 20. This Court follows the rule announced in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). See also, Powell v. State, 806 So. 2d 1069, 1074 (Miss.2001). "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S. Ct. 180 (citation omitted). In addition, "[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Id. (quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).
¶ 21. However, in the present case, McClellan was indicted and tried for two separate acts: (1) possession of precursors, namely, lithium, sodium hydroxide, ether, and isopropyl alcohol; and (2) possession of more than 250 dosage units of pseudoephedrine. McClellan's contention is equivalent to arguing that one cannot be convicted of unlawful possession of marijuana and unlawful possession of cocaine simply because the defendant was found in possession of both substances at the same time. While it is true that pseudoephedrine is listed as a precursor under Mississippi Code Section 41-29-313(1)(b), the precursors which McClellan was convicted of unlawfully possessing did not include pseudoephedrine. See Miss.Code Ann. § 41-29-313(1)(b) (Rev.2009). The State did not use the pseudoephedrine found in McClellan's car to support its charge for possession of precursors. See Hunt v. State, 863 So. 2d 990, 993 (Miss.Ct.App. 2004) (holding that by using the same pseudoephedrine to support convictions for possession of precursors and possession of more than 250 dosage units of pseudoephedrine amounted to double jeopardy). Because the pseudoephedrine was not listed as one of the precursors, we find that McClellan was properly charged with, tried for, convicted of, and sentenced for two distinct crimes.
CONCLUSION
¶ 22. For the foregoing reasons, we find no reversible error, and the convictions are affirmed.
¶ 23. COUNT I: CONVICTION OF POSSESSION OF PRECURSORS AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $1,000,000, AFFIRMED. COUNT II: CONVICTION OF POSSESSION OF 250 DOSAGE UNITS OF PSEUDOEPHEDRINE AND SENTENCE AS A HABITUAL OFFENDER OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $5,000, AFFIRMED. SENTENCE IN COUNT II TO RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PIERCE JJ., CONCUR.
NOTES
[1] From the record, it cannot be determined whether the consent to search McClellan's car was verbal or written in form.
[2] Agent Hawkins testified that "sodium hydroxide is your everyday household Drano, or Red Devil Lye," and that "starting fluid has ether in it."
[3] We can deduce from the record that McClellan's conviction occurred outside the ten-year window of Mississippi Rule of Evidence 609(b); however, there are no judicial or Department of Corrections records to substantiate defense counsel's statements that McClellan served only one year of the three-year sentence. Thus, this Court cannot determine when McClellan was released from the confinement imposed for his burglary conviction. However, because this aspect of Rule 609 was not argued by McClellan at trial, and is not argued on appeal, this Court will not address this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566471/ | 34 So. 3d 76 (2010)
The STATE of Florida, Appellant,
v.
Yoander ZALDIVAR, Appellee.
No. 3D07-2933.
District Court of Appeal of Florida, Third District.
March 31, 2010.
Rehearing and Rehearing En Banc Denied May 18, 2010.
*77 Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
Grey and Mourin, and Juan E. Mourin, Miami, for appellee.
Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
SALTER, J.
The State appeals a circuit court order suppressing certain physical evidence and statements made by the defendant to law enforcement officers regarding a burglary. We reverse.
I. The Burglary
As noted by the trial court in the suppression order, the pertinent facts are not in dispute. On April 4, 2006, burglars removed some $300 in cash and two firearms from a business in Hialeah. The next day, a surveillance video identified a former employee using a key to open the door of the business after it had closed. This allowed hooded or masked burglars to enter, burglarize the business, and exit.
The business owner recognized the former employee, and a detective immediately interviewed her. She admitted her involvement and agreed to identify the persons she claimed were the burglars. She provided the full name of one such person, Armin Dominguez, and the first name, Yoander, of another. She identified Dominguez when a detective showed her his driver's license photo, and she provided Dominguez's address and vehicle description as well. Law enforcement officers promptly set up surveillance at the address provided by the former employee.
In about an hour, a vehicle matching the description given by the former employee, and occupied by two males, drove up to Dominguez's residence. One of the detectives identified Dominguez as the driver.
II. The Vehicle Stop
As the car came up to Dominguez's residence and was about to enter the driveway, the occupants spotted one of the unmarked cars and quickly sped away. The surveillance team called additional police units and the vehicle was blocked in a "felony stop" maneuver.[1] Both occupants were directed to exit the car, at which point the police saw, through the clear windows of the vehicle, a shotgun on the back seat and a ski mask and cash box on the floor of the vehicle. Another handgun was also found.
The lead detective immediately identified himself as an investigator and read Dominguez his rights in Spanish per a Miranda[2] card. Dominguez acknowledged *78 that he knew that the police were there because of "the burglary last night."
The passenger in the vehicle identified himself as "Yoander," the first name that had been provided by the former employee. He was in fact Yoander Zaldivar, the defendant below and appellee here. Upon learning that first name, the detective administered a verbal Miranda warning to Zaldivar as well.
Zaldivar was then transported to the police station and provided a written Miranda form in Spanish, which he signed. Thereafter, he provided a comprehensive oral and written statement admitting his involvement (with Dominguez) as one of the burglars.
III. Analysis: Reasonable Suspicion and Motor Vehicle Passengers
The trial court found that this sequence of facts did not provide a reasonable suspicion to detain and question Zaldivar. At the very moment Dominguez and the vehicle were stopped, the officers did not know the passenger's name and had no photographic identification to link the passenger to the burglary.
The Supreme Court of the United States considered the liberty interests of passengers in a lawfully-stopped car[3] in Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997):
[D]anger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.
See also State v. Hernandez, 718 So. 2d 833, 836 (Fla. 3d DCA 1998).
Another District Court in Florida has held, as we do in this case, that a passenger in a car with an occupant reasonably suspected of criminal activity occurring within, or involving, the car[4] may be questioned:
Occupants of a private vehicle are traveling together by choice and thus may be assumed to have some personal or business association with one another. Knowledge or suspicion that one of the occupants has been involved in criminal activity occurring within the car, or involving the car itself, serves as a basis for a reasonable suspicion that the other occupants may be participants in that activity.
Prestley v. State, 896 So. 2d 862, 864 (Fla. 5th DCA 2005) (citation omitted).
Immediately after Dominguez's car was stopped, the officers observed the stolen property (including a shotgun) in plain view in the back seat, and they learned that the passenger's first name was "Yoander." At that point, they had a founded suspicion as to Zaldivar as well.
The trial court cited, and Zaldivar relies upon, four cases defining an "arrest." *79 The court concluded that Zaldivar's detention with Dominguez was an arrest without probable cause. As Wilson and Prestley (among others) make clear, however, the fact that an occupant is ordered out of a lawfully-stopped car, a permissible investigatory detention, does not transform that detention into an arrest. Here, the information obtained during and immediately after that detention then provided probable cause for Zaldivar's arrest. See § 901.151, Fla. Stat. (2006).
IV. Conclusion
Had Zaldivar been the driver and only occupant of the vehicle when it was stopped by the police, the suppression order might stand. But in this case, the police had ample cause to stop Dominguez and the car he was driving. Such a stop includes the legal right to order other occupants to step out of the vehicle.
Once the police observed the stolen weapon, saw other evidence of the burglary in plain view in the car, and learned that the passenger's first name was "Yoander," they had probable cause to arrest Zaldivar, provide a Miranda warning, and question him. His motion to suppress the evidence of the burglary and his post-arrest statements should have been denied.
Reversed.
SHEPHERD, J., concurring.
I concur in the decision of the majority in this case. I write only to clarify the reasons for my concurrence.
This case arises out of the burglary of a video store, located in Hialeah, Florida, on April 4, 2006. The next morning, Detective Francisco Verdera was assigned to investigate the crime. Verdera was the sole witness at the suppression hearing.
Verdera testified that upon assignment, he and his partner responded to the crime location to speak with the owner. They also viewed a security video of the crime. The video showed three burglars were given entry to the business premises by a former employee, identified by the business owner as Maria Lorelys. Lorelys surreptitiously had obtained the keys to the business from a current manager after she was fired.
The detectives proceeded to Lorelys' home. Upon being told she had been taped facilitating the burglary, Lorelys confessed her misdeeds and identified two of her three accomplices, Armin Dominguez and an individual she knew only by first name, Yoander. She was unable to name the third accomplice. She knew where Armin lived, having gone with him to his house after the burglary, and she agreed to take the detectives to the location. She also told them Armin drove a blue X-type Jaguar. Finally, she provided the detectives positive identification of Armin through a driver's license photo obtained by the detectives.
After Lorelys identified Armin's house, the detectives established surveillance at the location. The record does not indicate whether Lorelys remained at the scene; however, two back-up units and a total of at least six officers and detectives set up around the house. About an hour later, Armin arrived, driving the Jaguar. An unidentified male was in the passenger seat. After pulling into the driveway, Armin quickly backed out and sped off. Detective Verdera testified he believed Armin had detected the presence of a nearby sergeant's vehicle "[who] hadn't taken up a very good position." Upon Verdera advising all units that Armin was in the fleeing Jaguar, the assembled officers and detectives gave chase, stopped and blocked the Jaguar a short distance away.
*80 Verdera further testified that after the Jaguar was stopped, Armin and the unidentified passenger were "ordered out of the car at gunpoint" and "secured." After both suspects were secured, without the use of handcuffs, the officers visually inspected the vehicle and immediately observed the weapon and other remnants of the burglary in the back, in plain view.[5] The passenger then was patted down, and asked to identify himself. He identified himself as Yoander, the same name Lorelys gave when identifying the second of the three men who co-perpetrated the burglary.
"Probable cause" is defined as "a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in the belief that the named suspect is guilty of the offense charged." Johnson v. State, 660 So. 2d 648, 654 (Fla.1995)(citing Dunnavant v. State, 46 So. 2d 871 (Fla.1950)). As the name implies, its application depends on probabilities deduced from "the legal, factual and practical considerations of everyday life, taken in context, on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). It exists where "facts and circumstances within [an arresting officer's] knowledge of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" a crime has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543 (1925); see generally Phillip A. Hubbart, Making Sense of Search and Seizure Law: A Fourth Amendment Handbook, 187 (2005).
In our case, there is no question a sufficiently individualized showing of wrongdoing by Armin at the time he was ordered out of his vehicle for arrest existed. Although the authorities did not know the identity of the passenger in the vehicle or why he was in the car with Armin, the fact that Armin sought to elude the authorities by flight provided sufficient justification for the police to order both the driver and the passenger out of the car at gunpoint. See D.N. v. State, 805 So. 2d 63, 65 (Fla. 3d DCA 2002) (citing Maryland v. Wilson, 519 U.S. 408, 412-15, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997)). His further detention was justified upon discovery of the contraband. See State v. Hunter, 615 So. 2d 727, 734 (Fla. 5th DCA 1993) (concluding law enforcement's observation of contraband, following the initial stop of the suspect, supported a finding of reasonable suspicion to continue the detention, and ultimately, probable cause to arrest). Zaldivar's confirmation of his identity was the last piece needed to complete the probable cause puzzle.
NOTES
[1] Such a stop assumes that one or more of the occupants are armed and dangerous. Unlike a routine traffic stop, the police have their service weapons at the ready until they can confirm that the occupants pose no threat. The lead detective on this case testified that a felony stop was conducted in this instance "because there were firearms involved in the burglary."
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] In this case, the law enforcement officers had a founded suspicion sufficient to stop Dominguez based on the statement given by the former employee, the visual identification of Dominguez as the driver (made possible because the lead investigator had obtained a copy of Dominguez's driver's license photo), the appearance of the specifically-described car at Dominguez's residence as related by the former employee, and the attempt by Dominguez to flee once he spotted the police. See State v. Herrera, 991 So. 2d 390, 392 (Fla. 3d DCA 2008).
[4] The possession of stolen goods in the vehicle was established immediately after Dominguez was stopped.
[5] The exact testimony on this point, given by Detective Verdera on direct examination, is as follows:
Q. Now, what happened upon your stopping the vehicle?
A. Did a felony stop, made them exit the vehicle. Once they were secure, we did like a visual inspection because there were firearms involved in the burglary.
In the back seat in plain view, clear windows, we had the shotgun. We had a ski mask on the floor of the vehicle, and we had the box they had taken. It was a box with I think between $200, $300 that they had taken from the business the night before. It was there on the floor, also. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566484/ | 161 F.2d 406 (1946)
SHAPIRO, BERNSTEIN & CO., Inc.,
v.
JERRY VOGEL MUSIC CO., Inc.
No. 29, Docket No. 20280.
Circuit Court of Appeals, Second Circuit.
December 10, 1946.
On Clarification of Opinion March 18, 1947.
Writ of Certiorari Denied May 5, 1947.
*407 O'Brien, Driscoll & Raftery, of New York City (Arthur F. Driscoll and Milton M. Rosenbloom, both of New York City, of counsel), for appellant.
House, Grossman, Vorhaus & Hemley, of New York City (Leo J. Rosett, Joseph Fischer, and Alfred Beekman, all of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
Writ of Certiorari Denied May 5, 1947. See 67 S. Ct. 1310.
SWAN, Circuit Judge.
This litigation involves the ownership of the renewals of three copyrights of a popular song. In 1911 Ernie Burnett wrote the music and Maybelle Watson, who was then his wife, wrote the words of a song entitled "Melancholy." This song was copyrighted on October 31, 1911, in Burnett's name as an unpublished work under section 11 of the Act of 1909, 17 U.S.C.A. § 11. This version of the song was never published. During the final year of the copyright term, Maybelle Watson, who was then Mrs. Bergman, as author of the words, and Mr. Burnett, as author of the *408 music, renewed the copyright pursuant to section 23, 17 U.S.C.A. § 23, and assigned their respective renewals to the plaintiff. The district court held that the plaintiff was the proprietor of the renewed copyright of the unpublished song. The appellant does not question this ruling.
In 1912 Burnett offered to sell the unpublished song to Theron C. Bennett, a musical publisher. Mr. Bennett liked the melody but not the words of the song. With Burnett's consent Bennett engaged George A. Norton to write new words. Norton did so,[1] and by a document dated September 23, 1912, assigned his lyrics to Bennett "for the original copyright term together with all renewals or extensions of said copyrights thereof."[2] By an assignment which carried the statement, "Lyrics now by Geo. A. Norton," Burnett transferred to Bennett the 1911 copyright. Being thus the owner of Burnett's music and Norton's words, Bennett published the song on October 25, 1912 with the following copyright notice:
"Copyright MCMXI by Ernie Burnett
"Copyright transferred MCMXII to Theron C. Bennett, Denver, Colo."
On December 2, 1939, Burnett registered in the Copyright Office claim for renewal of copyright of the 1912 version of the song. He assigned the renewal to the plaintiff. The district court held that Burnett's renewal was ineffective and that the lyrics written by Norton are in the public domain. This ruling the appellant challenges, contending that Burnett's renewal was effective and inured to the benefit of Norton's son,[3] under whose assignment the appellant claims co-ownership with the appellee of the renewal copyright of the 1912 version of the song.
A third version of the song was published and copyrighted by Bennett on November 5, 1914, under the title "My Melancholy Baby." This version was composed of Norton's words and Burnett's music, with an added chorus in march time. During the final year of the copyright term, claims for renewal were made by Burnett, who assigned his renewal to the plaintiff, and by Norton's son, who assigned his rights to the appellant. The district court held the son's attempted renewal invalid and ruled that the plaintiff was the proprietor of the renewed copyright in the music and the title of the 1914 version but that no copyright protection exists for Norton's lyrics again published in that version. The appellant raises no question as to the 1914 renewal.
From a judgment declaring the rights of the plaintiff, granting an injunction against their infringement, dismissing the defendant's counterclaim, and awarding the plaintiff an attorney's fee of $1,000, the defendant has appealed.
The appellant claims no interest in the renewal of the 1911 copyright on the unpublished song. It does claim co-ownership with the plaintiff in the renewal of the 1912 copyright of the published song. This involves two questions, (1) whether Bennett obtained a valid copyright on the 1912 version, and (2) whether Burnett and Norton were joint authors so that Burnett's renewal of the 1912 copyright inured to the benefit of Norton's son and passed by the latter's assignment to the appellant.
As to the first question the appellee takes the position that the 1912 version was never validly copyrighted because the copyright notice published by Bennett was insufficient; hence the Norton words are in the public domain. In our opinion this contention cannot be successfully maintained. Section 6 of the Act, 17 U.S.C.A. § 6, provides that
"Compilations * * * or other versions of * * * copyrighted works when *409 produced with the consent of the proprietor of the copyright in such works, * * * shall be regarded as new works subject to copyright under the provisions of this title; * * *"
Bennett was proprietor of both the old music and of the new words produced by Norton with the consent of Burnett. Assuming that this combination was entitled by section 6 to be copyrighted as a new work a question hereafter discussed then under section 9 of the Act, 17 U.S.C. A. § 9, all Bennett had to do to secure copyright was to publish it with the notice of copyright required by section 18, 17 U.S. C.A. § 18, and to deposit in the Copyright Office two copies of the published work as required by section 12, 17 U.S.C.A. § 12.[4] Section 18 provides that:
"The notice of copyright * * * shall consist either of the word `Copyright' or the abbreviation `Copr.', accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical or dramatic work, the notice shall include also the year in which the copyright was secured by publication."
Bennett did not literally comply with these requirements: although his name appeared, the notice did not state directly that he copyrighted the song in 1912. His notice was of Burnett's copyright of the 1911 version and its transfer to him in 1912. Nevertheless it is apparent that he intended to copyright the 1912 version, for that was the song he was publishing. His intent being plain to copyright the published song, the fact that the notice impliedly attributed the authorship of both music and words to Burnett is, we think, irrelevant. Also irrelevant is the mistake in date, except as it may operate to cut down the term of the copyright.[5] Neither of these innocent errors misled the public to its prejudice, or failed to give it notice not to infringe. The purpose of a copyright notice is to prevent innocent persons who are unaware of the existence of the copyright from incurring the penalties of infringers by making use of the copyrighted work. See Fleischer Studios v. Ralph A. Freundlich, Inc., 2 Cir., 73 F.2d 276, 277, certiorari denied 294 U.S. 717, 55 S. Ct. 516, 79 L. Ed. 1250; Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 55, 4 S. Ct. 279, 28 L. Ed. 349. The published notice was sufficient to inform a prospective copyist that Bennett was trying to get copyright protection for the published song to which he attached it. Had such a copyist looked up Burnett's copyright, he would have found that it protected an "unpublished song" with different words, but that ought not to have satisfied him that Norton's words were in the public domain; on the contrary, he would then have the more reason to believe that Bennett was trying to protect the song as published, and he should be chargeable with knowledge of such facts as reasonable inquiry would have disclosed. Such an inquiry addressed to Bennett would have disclosed that he was the proprietor of both Norton's words and Burnett's music and intended to obtain protection for the song as published. So we think the 1912 copyright was valid provided Burnett's music and Norton's words were a "new work" within the meaning of section 6.
The appellee takes the position that Burnett and Norton were neither co-authors nor collaborators. We think they were. The words and music of a song constitute a "musical composition" in which the two contributions merge into a single work to be performed as a unit for the pleasure of the hearers; they are not a "composite" work, like the articles in an encyclopedia, but are as little separable for purposes of the copyright as are the individual musical notes which constitute the melody. All this we expounded in Edward *410 B. Marks Music Corporation v. Jerry Vogel Music Co., 2 Cir., 140 F.2d 266, where Marks composed the words which were to be set to music by some unknown composer. He sold the words to Harding who engaged Loraine to compose the music. We held that the combination was a "joint work," that Marks' renewal of the copyright was of the music as well as the words, although Marks and Loraine had never seen each other until long after the critical dates, and that when one of two joint authors obtains a renewal he holds it not alone for his own benefit but also as trustee for the other. The applicability of the Marks case becomes clear if we approach the situation at bar step by step. Suppose, for example, that after Burnett had composed the music, expecting his wife to write the words, she had died or changed her mind about writing the lyrics, and Burnett had then gone to Bennett and asked him to find someone to write the words. We submit that no court would hold that the fact that when Burnett composed the music he expected his wife to write the words, would make the actual song any less a "joint work" of Burnett and the lyricist found by Bennett. If that be true, it should make no difference that Burnett's original design to have his music combined with his wife's words was in fact realized. If the words and music of a song constitute a unitary work, as the Marks case held, then the 1912 version, composed of Burnett's music and Norton's lyrics, was a "new work" separately copyrightable from the 1911 version by the express terms of section 6, 17 U.S.C.A. § 6. It was also, as we have shown, a "joint work." Therefore, when Bennett united Burnett's music with Norton's words, either of the joint authors had the statutory privilege of renewal, and, if he did renew, he did so for both.[6]
There remains for consideration the question whether Burnett's renewal of copyright on the 1912 version was valid. This depends on whether it was timely. It was made on December 2, 1939, which was after the expiration on October 31, 1939, of the term of the 1911 copyright on the unpublished song. Because Bennett's notice of copyright on the published song gave the date of copyright as 1911 instead of 1912, the copyright on the published song cannot extend beyond December 31, 1939. See cases cited in note 5, supra. If it extended to that date the renewal was timely. If, however, it was cut down to the term of the 1911 copyright (October 31, 1939), the renewal was too late. The theory upon which a mistaken date in the notice can have any legal effect is that it may mislead the public as to the length of the monopoly. We can see no reason why the public should take one day in the year stated rather than another; in other words the public has no reason to assume that the work is in the public domain until the year has expired. This was the holding in Callaghan v. Myers, 128 U.S. 617 at page 657, 9 S. Ct. 177, at page 188, 32 L. Ed. 547. In that case, it is true, the date stated did not refer to an earlier copyright, while here it does. However, we think that an immaterial distinction, for anyone looking up the 1911 copyright would get notice that it did not cover the combination (words and music) of the published song. Since that was a "new and joint work" Burnett's renewal was valid.
The appellant's final complaint relates to the allowance to the appellee of an attorney's fee of $1,000. As the action arose under the Copyright Act an allowance of attorney's fees was permissible, 17 U.S.C.A. § 40, despite the fact that a declaratory judgment was sought. See Yardley v. Houghton Mifflin Co., D.C., 25 F. Supp. 361, 364 (where attorneys' fees were awarded on the defendant's counterclaim for a declaratory judgment), affirmed, 2 Cir., 108 F.2d 28, certiorari denied 309 U.S. 686, 60 S. Ct. 891, 84 L. Ed. 1029. Upon remand of the cause the district *411 court will have discretion to deal with fees as it may think proper.
The judgment is reversed and the cause remanded for entry of a judgment consistent with this opinion.
On Clarification of Opinion.
PER CURIAM.
Clarification of our opinion in the above entitled case, is sought, first, with respect to the ownership of the renewal copyright on the 1914 version of the musical composition entitled "My Melancholy Baby." After stating the District Court's ruling, we said: "The appellant raises no question as to the 1914 renewal." That sentence means merely that since the appellant's brief did not discuss the 1914 renewal we did not discuss it; nor shall we do so now. It does not follow, however, as the appellee urges, that the District Court's ruling as to the renewal of the 1914 version was left undisturbed and must be incorporated in the judgment to be entered on the mandate. We reversed the judgment and remanded the cause "for entry of a judgment consistent with this opinion." This permits the district judge to enter any judgment which he thinks consistent with our opinion. He may consider whether the 1914 version was a "joint work" and a "new work" and whether the principles enunciated with respect to the 1912 version are likewise applicable to the 1914 version, and he may act accordingly.
The second point on which clarification is desired is the right to an accounting between the co-owners of the renewal copyrights on the 1912 version and the 1914 version (if the same principles are found applicable to both). The question whether one of two joint owners of a copyright can have an accounting against the other merely because the other has used the copyright was never discussed on the argument of the appeal. It is a complex and difficult question which we do not wish to determine without the benefit of an opinion by the district judge before whom it will be argued.
Except for the foregoing clarification of the first point, the motion is denied.
NOTES
[1] Contrary to the plaintiff's original contention, the court found that Norton was not "an employee for hire." This finding is not questioned.
[2] There is no contention that this assignment was effective to convey Norton's privilege of renewal, as he died several years before expiration of the copyright term leaving a surviving son in whom the statute vested the privilege of renewal, 17 U.S.C.A. § 23. Compare Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S. Ct. 773, 87 L. Ed. 1055, where the assignor survived the expiration of the original term of copyright.
[3] Norton had died before 1938 leaving a surviving son as his next of kin. Norton and his wife were divorced in 1907.
[4] Bennett did not deposit copies of the song, but mere delay in making such deposit does not invalidate a copyright. Washingtonian Pub. Co. v. Pearson, 306 U.S. 30, 59 S. Ct. 397, 83 L. Ed. 470. Copies were filed on January 10, 1939 by a transferee from Bennett, and the certificate of copyright registration then issued was subsequently acquired by the plaintiff.
[5] See Callaghan v. Myers, 128 U.S. 617, 657, 9 S. Ct. 177, 188, 32 L. Ed. 547; American Code Co. v. Bensinger, 2 Cir., 282 F. 829, 836; Southern Music Pub. Co. v. Bibo-Lang, D.C., S.D.N.Y., 10 F. Supp. 972, 974.
[6] Silverman v. Sunrise Pictures Corporation, 2 Cir., 273 F. 909, 19 A.L.R. 289; Edward B. Marks Music Corporation v. Jerry Vogel Music Co., 2 Cir., 140 F.2d 266; Edward B. Marks Music Corporation v. Jerry Vogel Music Co., 2 Cir., 140 F.2d 270; Edward B. Marks Music Corporation v. Jerry Vogel Music Co., D. C., S.D.N.Y., 42 F. Supp. 859. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566495/ | 161 F.2d 19 (1947)
UNITED STATES
v.
JANITZ et al.
No. 9328.
Circuit Court of Appeals, Third Circuit.
Argued March 7, 1947.
Decided April 16, 1947.
*20 Charles J. Tyne, Asst. U. S. Atty., of Newark, N. J. (Edgar H. Rossbach, U. S. Atty., of Newark, N. J., on the brief), for appellant.
George R. Sommer, of Newark, N. J. (Anthony Calandra, of Newark, N. J., and Bernard G. Goldstein, of Paterson, N. J., on the brief), for appellees.
Before BIGGS, GOODRICH and O'CONNELL, Circuit Judges.
GOODRICH, Circuit Judge.
A group of defendants was indicted for violation of the United States Internal Revenue Code charged with various offenses having to do with the illicit manufacture of alcoholic beverages.[1] The first trial took place prior to the effective date, March 21, 1946, of the Federal Rules of Criminal Procedure. It appearing that the seizure of the still apparatus and other articles had been made without warrant by entry of premises occupied by one Conklin, one of the defendants upon appropriate proceedings the evidence was suppressed so far as it concerned Conklin and the case against him was dismissed. Another of the defendants was dropped from the proceedings for lack of evidence, and one of the counts was dismissed as to two other defendants. The first proceeding resulted in a mistrial for reasons not relevant here.
In May, 1946, which was subsequent to the effective date of the new rules of Criminal Procedure, there were proceedings to suppress, as to the remaining defendants, the evidence which had already been ordered suppressed as to Conklin. The defendants based their motion upon Rule 41(e) of the new Rules.[2] They were upheld by the District Judge, 6 F.R.D. 1, and an order was entered enjoining the Government from using this evidence at any trial or hearing relating to the seizure of this still and mash.
In December, 1946, the Government moved the case for trial. The defendants waived their right to a jury and the case *21 proceeded for trial before the court. Government counsel acknowledged that he could not establish the charges against the defendants because of the order restraining the use of the evidence. The defendants thereupon moved for judgment of acquittal as provided in Rule 29(a) of the Rules. This motion the District Judge denied. But seeking to find a way to provide for an appellate review of the ruling upon the suppression of the evidence as to defendants, other than Conklin, Rule 41(e) quoted supra, he entered an order of dismissal.[3] From this the United States appeals.
The first question is whether the appellant is properly in this Court on its appeal. The pertinent portions of the Criminal Appeals Act[4] are as follows:
"An appeal may be taken by * * * the United States from the district courts to a circuit court of appeals * * * in the following instances, to wit:
"From a decision or judgment quashing, setting aside, or sustaining a demurrer or plea in abatement to any indictment, * * * except where a direct appeal to the Supreme Court of the United States is provided by this section."
We bear in mind the undisputed proposition that the Government's appeal must be based upon a right given in the statute if it is to have one.[5] Was the District Court order a "judgment quashing, setting aside, or sustaining a demurrer or plea in abatement to any indictment"? We think it clear from the recital of the facts already set out that the learned Judge's order of dismissal was not based on any objection brought against the indictment at all. The defendants had made no attack on the indictment. The Government's case failed because it had no testimony to support it. We think this is not the kind of a judgment to which the Criminal Appeals statute is directed.
The Government points out that the amended statute specifically allows an appeal from decisions "sustaining a plea in abatement" which it says is a plea which "by definition relates to matters outside the pleadings". Obviously, this does not define or even describe a plea in abatement as distinguished from a plea to the merits. Plea in abatement was used[6] to defeat a particular court action without answering the allegations of the plaintiff.[7] The unsuccessful termination of the prosecution's case against the defendants in this instance because the Government had no evidence on which they could be convicted has nothing to do with a plea in abatement. We do not see, therefore, any possibility that this appeal can come within the language of the Criminal Appeals Act and the available legislative history cited to us on behalf of the Government's contention is we think, too unconvincing to require discussion. Our conclusion, therefore, is that the Government is not properly in Court on this appeal. The appeal is dismissed for want of jurisdiction.
NOTES
[1] 35 Stat. 1096, March 4, 1909, 18 U. S.C.A. § 88, Conspiring to commit offense against United States: here a conspiracy to violate internal revenue laws; 53 Stat. 308, 26 U.S.C.A. Int.Rev.Code, § 2810(a), Registry of Stills; here an unlawful possession of a still; 53 Stat. 319, 26 U.S.C.A. Int.Rev.Code, § 2834, Mash * * * factories: here unlawful making of mash fit for alcohol production.
[2] "Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, * * *. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing." 18 U.S.C.A. following section 687.
The important words are those which we have italicized in the foregoing quotation.
[3] Had the evidence been admitted and the defendants been convicted an appeal by them would have brought this question squarely before us. In the meantime, it has been answered briefly, but with complete clarity, by the Second Circuit in Lagow et al. v. United States, 2 Cir. 1946, 159 F.2d 245, in a manner contrary to the ruling of the learned District Judge.
[4] 56 Stat. 271, 18 U.S.C.A. § 682.
[5] United States v. Rosenwasser, 9 Cir., 1944, 145 F.2d 1015, at page 1018, 156 A.L.R. 1200: "In addition, the courts have consistently guarded against an extension to the government of the right to appeal from an adverse ruling in a criminal case unless specific statutory sanction exists. * * *"
[6] Now superseded by the Motion Raising Defenses and Objections contained in Rule 12 of the Federal Rules of Criminal Procedure.
[7] David v. David, 1932, 161 Md. 532, 157 A. 755, 81 A.L.R. 1100: "The distinction between a plea in abatement and a plea in bar is that the former delays the suit, while the latter destroys the cause of action. * * *" For a more complete discussion of the nature of a plea in abatement, see: Clark, Code Pleading 340-341 (1928); McKelvey, Principles of Common Law Pleading 96-100 (2d ed. rev. 1917); Shipman, Common Law Pleading 383-388 (3d ed.1923). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/672112/ | 26 F.3d 885
64 Fair Empl. Prac. Cas. (BNA) 1507,65 Fair Empl. Prac. Cas. (BNA) 1216,65 Fair Empl. Prac. Cas. (BNA) 1881,64 Empl. Prac. Dec. P 43,074, 28 Fed. R. Serv. 3d 1464
Gary E. WALLIS, husband; Carol Wallis, wife, Plaintiffs-Appellants,v.J.R. SIMPLOT COMPANY, Defendant-Appellee.
No. 92-36759.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 6, 1994.Decided May 26, 1994.As Amended on Denial of Rehearing July 14, 1994.
Robert C. Huntley, Givens Pursley & Huntley, Boise, ID, for plaintiffs-appellants.
Rory R. Jones, Richard H. Greener, Cosho, Humphrey, Greener & Welsh, Boise, ID, for defendant-appellee.
Appeal from the United States District Court for the District of Idaho.
Before: CANBY, and T.G. NELSON, Circuit Judges, and SHUBB,* District Judge.
Opinion by Judge T.G. NELSON.
OPINION
T.G. NELSON, Circuit Judge:
I.
OVERVIEW
1
Gary and Carol Wallis appeal the district court's grant of summary judgment dismissing Wallis' claims for retaliatory discharge under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Sec. 2000e, et seq., age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq., and various state law claims.1 We affirm.
II.
FACTS AND PROCEDURAL HISTORY
2
Gary Wallis (Wallis) was hired in 1982 by J.R. Simplot Company (Simplot) as Director of Human Resources. Early in his tenure, a female employee of Simplot made a charge of sexual harassment against a vice-president of Simplot. Wallis supported her in her claim by transferring her to another division. Later, a second employee was discharged by the vice-president for his support of the woman in the harassment claim. Wallis rehired this discharged employee for his own staff and made supportive public statements on behalf of the employee. These events occurred sometime during 1983, 1984 and 1985.
3
In late 1989 and early 1990, Gordon Smith (Smith), president of Simplot, decided to decentralize the human resources department so that it would function at the company's division level. Smith informed Wallis of the decision in June 1990. At that time, and on occasions thereafter, Smith told Wallis that Simplot would find a "new role" for him and that he would not be "hurt by the decentralization process."
4
On September 12, 1990, Smith sent Wallis a letter terminating his employment. Wallis contends his termination closely followed his presentation to Smith of a copy of a speech which he intended to give at an annual meeting of Simplot's management personnel. He contends that this speech was critical of Simplot's employment practices, and that his discharge was in retaliation for this proposed speech. On the basis of these allegations, Wallis filed suit in state court alleging violations of Title VII, the ADEA, and various state law claims. Simplot removed the case to federal district court.
5
The district court granted summary judgment for Simplot on all claims as it saw them on February 12, 1992. Wallis moved for reconsideration of the judgment, claiming he had pleaded a claim of retaliatory discharge which had not been addressed by the district court. Although the complaint did not clearly allege this claim, the district court considered the retaliatory discharge claim, and on July 7, 1992, it entered a second summary judgment adverse to Wallis on that claim also.
6
On July 15, 1992, Wallis moved the district court to alter or amend the second summary judgment pursuant to Fed.R.Civ.P. 59. Then, on August 4, 1992, Wallis filed a notice of appeal, appealing both summary judgments. Finally, on January 6, 1993, the district court entered an order denying the motion to alter or amend the second summary judgment.
III.
JURISDICTION
7
At the time Wallis filed his notice of appeal, Rule 4(a)(4)2 plainly stated that a notice of appeal filed during the pendency of a motion to alter or amend the judgment "shall have no effect." The Supreme Court, in Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S. Ct. 400, 403, 74 L. Ed. 2d 225 (1982), held that a notice of appeal filed during the pendency of a Rule 59 motion is a nullity, as if no notice of appeal were filed at all. However, Rule 4(a)(4) was amended effective December 1, 1993,3 to provide that when a notice is prematurely filed, it "shall be in abeyance, and shall become effective upon the date of entry of an order that disposes of the last of all such motions." Under the old version of Rule 4(a)(4), applicable at the time Wallis filed the notice of appeal, the notice was a nullity. Thus, the issue becomes whether the notice may be resurrected by a retroactive application of the amended version of Rule 4(a)(4). See Leader Nat'l Ins. Co. v. Industrial Indemnity Ins. Co., 19 F.3d 444, 445 (9th Cir.1994) (applying amended Rule retroactively); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (holding amended rule applies retroactively unless it would work injustice).
8
The Supreme Court's order adopting the 1993 amendments to the Rules of Appellate Procedure provides:
9
That the foregoing amendments to the Federal Rules of Appellate Procedure shall take effect on December 1, 1993, and shall govern all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings in appellate cases then pending.
10
61 U.S.L.W. 5365 (U.S. Apr. 27, 1993) (emphasis added). Wallis' appeal was pending on December 1, 1993; thus, if the application of the 1993 amendment to this case is "just and practicable," we have jurisdiction.
11
The parties briefed this case and were prepared to argue it as though the notice of appeal were valid. Simplot cannot claim prejudice because it did not discover the defect in the filing of the notice of appeal until this court ordered supplemental briefing on the issue of jurisdiction after the case had already been set for oral argument. To allow the parties to proceed to present the appeal they have been working on since August 1992 is just. Further, practicality is no problem. No adjustments in briefing schedules or in calendaring of oral argument were required in order to address the issues raised by the parties.
12
Under the circumstances of this case, we hold that it is "just and practicable" to apply the amended version of Rule 4(a)(4) to this case. Therefore, we have jurisdiction to consider the appeal.
IV.
STANDARD OF REVIEW
13
"We review the district court's grant of summary judgment de novo to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1074 (9th Cir.1986). We do not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986). The record below is examined to determine whether there is any basis for affirmance. Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.1985), as amended, 784 F.2d 1407 (1986). If the result reached by the district court is correct, we will affirm even if the district court relied on an erroneous ground. Id.
V.
RETALIATORY DISCHARGE AND AGE DISCRIMINATION
14
We combine the Title VII and ADEA claims for analysis because the burdens of proof and persuasion are the same.4 See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir.1990) ("The shifting burden of proof applied to a Title VII discrimination claim also applies to claims arising under ADEA."). The basic allocation of burdens and order of presentation of proof for such claims follows three steps:
15
[A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.
16
Lowe, 775 F.2d at 1005.
17
The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), cert. denied, 498 U.S. 939, 111 S. Ct. 345, 112 L. Ed. 2d 309 (1990). The plaintiff need only offer evidence which "gives rise to an inference of unlawful discrimination." Lowe, 775 F.2d at 1005 (quotation omitted). "The amount [of evidence] that must be produced in order to create a prima facie case is 'very little.' " Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir.1991); see also, Lowe, 775 F.2d at 1009. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981).
18
The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973), or by more direct evidence of discriminatory intent. Lowe, 775 F.2d at 1009. In offering a prima facie case, of course, a plaintiff may present evidence going far beyond the minimum requirements.
19
Once a prima facie case has been made, the burden of production shifts to the defendant, who must offer evidence that the adverse action was taken for other than impermissibly discriminatory reasons. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas presumption of unlawful discrimination "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, ----, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993).
20
The question before us is whether, after these steps have been taken, a summary judgment for the defendant employer can be sustained. We are convinced that, as in any other summary judgment situation, the question can only be answered in each case by a review of the actual evidence offered by each party, to see whether a genuine issue of material fact has been presented for trial. If a rational trier of fact could, on all the evidence, find that the employer's action was taken for impermissibly discriminatory reasons, summary judgment for the defense is inappropriate. Before we analyze the record in this case, however, we deal with some of the more categorical arguments offered by the parties.
21
Wallis relies on our decision in Sischo-Nownejad, 934 F.2d at 1104, for the proposition that summary judgment for the employer is never appropriate after the plaintiff makes out a prima facie case. In that case, we noted:
22
Even if the defendant articulates a legitimate, nondiscriminatory reason for the challenged employment decision, thus shifting the burden to the plaintiff to prove that the articulated reason is pretextual, summary judgment is normally inappropriate. When a plaintiff has established a prima facie inference of disparate treatment through direct or circumstantial evidence of discriminatory intent, he will necessarily have raised a genuine issue of material fact with respect to the legitimacy or bona fides of the employer's articulated reason for its employment decision.
23
Id. at 1111 (internal quotations and citations omitted). However, we went on to state:
24
[I]n evaluating whether the defendant's articulated reason is pretextual, the trier of fact must, at a minimum, consider the same evidence that the plaintiff introduced to establish her prima facie case. When that evidence, direct or circumstantial, consists of more than the [prima facie ] presumption, a factual question will almost always exist with respect to any claim of nondiscriminatory reason.
25
Id. (internal citation omitted) (emphasis added). Sischo-Nownejad, thus, read as a whole, stands for the proposition that in deciding whether an issue of fact has been created about the credibility of the employer's nondiscriminatory reasons, the district court must look at the evidence supporting the prima facie case, as well as the other evidence offered by the plaintiff to rebut the employer's offered reasons. And, in those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination under McDonnell Douglas, plaintiff has failed to raise a triable issue of fact.
26
Thus, the mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment. Indeed, in Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991), we specifically held "a plaintiff cannot defeat summary judgment simply by making out a prima facie case." "[The plaintiff] must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986). In response to the defendant's offer of nondiscriminatory reasons, the plaintiff must produce "specific, substantial evidence of pretext." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). In other words, the plaintiff "must tender a genuine issue of material fact as to pretext in order to avoid summary judgment." Id.
27
Wallis' assertion, that once a plaintiff makes out a prima facie case summary judgment is impermissible, is untenable. His position would require a trial in every discrimination case, even where no genuine issue of material fact exists concerning the legitimacy of the employer's nondiscriminatory reasons. Such a result is not compelled by Sischo-Nownejad and would be contrary to other cases affirming summary judgment where the plaintiff failed to produce evidence of intentional discrimination. See Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 473 n. 16 (9th Cir.1991) (distinguishing Lowe and Sischo-Nownejad ); Lindahl, 930 F.2d at 1437 (requiring more than mere prima facie case); Schuler, 793 F.2d at 1011; (requiring more than prima facie case and denial of credibility of employer's witnesses); Steckl, 703 F.2d at 393 (failing to produce any facts, which if believed, would have shown pretext).
28
There are a number of recent cases in other circuits that have required plaintiffs to come forth with evidence sufficient to permit a rational trier of fact to find the employer's explanation to be pretextual; the mere fact that a bare prima facie case had been made out was not in itself sufficient. See Davis v. Chevron U.S.A., 14 F.3d 1082, 1087 (5th Cir.1994) (failing to present more than mere refutation of employer's legitimate nondiscriminatory reason for not hiring); Durham v. Xerox Corp., 18 F.3d 836, 340 (10th Cir.1994) (failing to offer sufficient evidence to support finding that reason was pretext); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir.1994) (requiring plaintiff to produce evidence from which rational fact finder could infer employer lied); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir.1993) (requiring evidence creating factual dispute about nondiscriminatory reason); Geary v. Visitation of the Blessed Virgin Mary, 7 F.3d 324, 332 (3rd Cir.1993) (failing to offer facts showing genuine issue of fact as to reason); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir.1993) (requiring evidence sufficient for fact finder to reasonably conclude discriminatory motive), cert. denied, --- U.S. ----, 114 S. Ct. 1398, 128 L. Ed. 2d 72 (1994). We hold that, when evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption.
29
We now turn to the specific facts of this case to determine whether Wallis met his requisite burden to overcome summary judgment. Generally, to establish a prima facie case of an ADEA violation, the plaintiff must show he was:
30
(1) a member of a protected class [age 40-70];
31
(2) performing his job in a satisfactory manner;
32
(3) discharged; and
33
(4) replaced by a substantially younger employee with equal or inferior qualifications.
34
Rose, 902 F.2d at 1421. Proof of the replacement element is not always required, however. Where the discharge results from a reduction in work force, the plaintiff may show "through circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination." Id. Such an inference can be established by showing the employer had a "continuing need for his skills and services in that his various duties were still being performed." Id. (quoting Leichihman v. Pickwick Int'l, 814 F.2d 1263, 1270 (8th Cir.), cert. denied, 484 U.S. 855, 108 S. Ct. 161, 98 L. Ed. 2d 116 (1987)); see also Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993) (prima facie case established by proving others not in employee's protected class were treated more favorably).
35
The first three elements of the prima facie case are not contested by Simplot. Regarding the fourth element, Wallis claimed that twelve of the thirteen functions he performed were retained at the corporate level, and that all his duties were assigned to persons younger and less qualified than he. Wallis was not replaced because his position was eliminated; instead, current employees of Simplot assumed Wallis' duties. In this respect, Wallis' claim is more analogous to a reduction in force situation which does not require proof of replacement, but allows alternative proof of an inference of age discrimination. Because very little evidence is required to establish a prima facie case, we conclude he has met this burden.
36
We also find Wallis met his minimal burden of establishing a prima facie case for a Title VII claim. Proof of a prima facie case of retaliatory discharge requires a showing that:
37
(1) he was engaged in a protected activity;
38
(2) he was thereafter subjected by his employer to an adverse employment action; and
39
(3) a causal link exists between the protected activity and the adverse employment action.
40
Yartzoff, 809 F.2d at 1375.
41
Wallis contends his proposed speech, which he intended to give at an annual meeting of Simplot's management personnel and which he shared with Smith, constituted a protected activity.5 Further, he contends he was discharged in retaliation for the proposed speech. The district court held the speech was not a protected activity because it was not critical of Simplot's actions. It read Wallis' proposed speech as merely setting forth perceptions of the company gained directly from employees during a recent facilities tour and providing suggestions to management on how to counter or ameliorate the adverse employee views expressed during the tour.
42
The district court's view of the speech is supportable. When viewed in the context of the tour and Wallis' responsibilities, it can be fairly interpreted as not critical of Simplot, but simply descriptive of problems which employees relayed to Wallis. However, there are some isolated passages which can be read as critical of Simplot, and Smith may have possibly interpreted the speech as critical. Therefore, we disagree with the district court and hold that Wallis established a prima facie case of retaliatory discharge.
43
Accordingly, because Wallis established prima facie cases to support his Title VII and ADEA claims, the burden shifts to Simplot to offer a legitimate, nondiscriminatory reason for Wallis' termination. Simplot offers such a reason. In response to Wallis' claims, Simplot asserts Wallis was not terminated because of his age or in retaliation for the proposed speech. Instead, Simplot claims Wallis' termination was a result of its decision to decentralize the human resources function, and as a result of this decentralization, Wallis' supervisory duties were assumed by others at the corporate level, and the human resources function was moved to the division level. Because Simplot offers this legitimate, nondiscriminatory reason for Wallis' termination, it has carried its burden of production, and the presumptions created by the prima facie cases disappear. See Hicks, --- U.S. at ----, 113 S. Ct. at 2749. This is true even though there has been no assessment of the credibility of Simplot at this stage. Id.; Burdine, 450 U.S. at 254, 101 S.Ct. at 1094.
44
The presumptions having dropped out of the picture, we are left with the ultimate question of whether Wallis has offered evidence sufficient to permit a rational trier of fact to find that Simplot intentionally discriminated against him because of his age or retaliated against him for his proposed speech. See Hicks, --- U.S. at ----, 113 S. Ct. at 2749. In determining whether there is a triable issue of fact, we must consider all the evidence, including that offered to establish the prima facie cases and to rebut Simplot's reason as pretextual together with any other evidence.
45
Wallis' response to Simplot's nondiscriminatory reason is merely that the functions he performed continue to be performed by other Simplot employees and that supervisory duties remained at the corporate level which is the same proof he offered to establish his prima facie case. Wallis offers no additional proof of age discrimination either direct, circumstantial or statistical.6 Further, he offers no additional proof of a retaliatory motive. Wallis' response that other employees assumed his duties merely serves to reinforce the Simplot's explanation for his termination: the company was decentralizing Wallis' function and downsizing by requiring other employees to assume his duties. In essence, Wallis has simply showed that an adverse employment decision was made under conditions that permitted him to invoke a McDonnell Douglas type of presumption of unlawful discrimination. That evidence, although it sufficed to establish a minimal prima facie case, is not enough now that Simplot has offered a nondiscriminatory explanation, and nothing in Wallis' evidence controverts it. Because Wallis failed to present any evidence to refute Simplot's legitimate, nondiscriminatory reason for his discharge, we hold Wallis failed to carry his burden of establishing a triable issue of fact on the ultimate question of whether Simplot intentionally discriminated or retaliated against him.
46
Accordingly, we AFFIRM the district court's grant of summary judgment in favor of Simplot.
*
Honorable William B. Shubb, United States District Judge for Eastern District of California, sitting by designation
1
This court affirms the district court's grant of summary judgment with respect to Wallis' state law claims in a separate, unpublished decision
2
The version of Rule 4(a)(4) in effect at the time of Wallis' appeal stated:
If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party ... under Rule 59 ..., the time for appeal of all parties shall run from the entry of the order denying ... such motion. A notice of appeal filed before the disposition of [such motion] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.
Fed.R.App.P. 4(a)(4) (emphasis added).
3
A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal until the date of the entry of the order disposing of the last such motion outstanding. Appellate review of an order disposing of any of the above motions requires the party, in compliance with Appellate Rule 3(c), to amend a previously filed notice of appeal. A party intending to challenge an alteration or amendment of the judgment shall file an amended notice of appeal within the time prescribed by this Rule 4 measured from the entry of the order disposing of the last such motion outstanding. No additional fees will be required for filing an amended notice
4
Wallis also makes a claim under the Idaho Human Rights Act (IHRA), I.C. Sec. 67-5901, et seq. The Idaho Supreme Court has held the analysis under Title VII applies to claims under IHRA. See Hoppe v. McDonald, 103 Idaho 33, 644 P.2d 355, 358 (1982). See also Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1077 (9th Cir.1986). Accordingly, our decision resolving Wallis' Title VII claim also resolves his IHRA claim
5
Wallis also contends his support of a female employee who brought a sexual harassment claim against a Simplot executive and of another employee who supported her in this claim was a protected activity. We need not resolve this issue, however, because Wallis concedes these events occurred sometime during 1983, 1984 and 1985, and were not in close proximity to his termination
6
After summary judgment on Wallis' ADEA claim, Wallis moved for reconsideration of the judgment under Rule 59. In support of the motion, Wallis' lawyer submitted an affidavit showing the ages of various people terminated by Simplot prior to Wallis' termination. No attempt was made to show why this information was not presented at the summary judgment hearing; Wallis did not claim the evidence was unavailable to him at the time of summary judgment. The district court denied the motion for reconsideration without comment. Implicit in its denial was the rejection of the tardy affidavit. This rejection was well within the district court's discretion. The district court is required only to consider the tardy affidavit if it constituted "newly discovered evidence" within the meaning of Rule 59. See Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir.1987). Evidence is not newly discovered if it was in the party's possession at the time of summary judgment or could have been discovered with reasonable diligence. See id. at 212. We similarly decline to accept the tardy affidavit | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1566711/ | 34 So.3d 741 (2008)
EX PARTE TERRY WAYNE BURT
No. 1071403 (CR-07-0103).
Supreme Court of Alabama.
August 8, 2008.
Decision of the Supreme Court of Alabama Without Published Opinion Cert. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566712/ | 440 S.W.2d 682 (1969)
Adele LITTLE, Appellant,
v.
L. W. BUCKLEY, Appellee.
No. 17258.
Court of Civil Appeals of Texas, Dallas.
April 18, 1969.
*683 Donald D. Koons, of O'Donnell, Koons & Street, Dallas, for appellant.
James T. Berry of Reppeto, Berryman & Berry, Dallas, for appellee.
CLAUDE WILLIAMS, Justice.
This appeal is from a take nothing summary judgment which denied appellant recovery of commissions allegedly due upon an oral contract. In her petition Adele Little alleged that she was a duly licensed realtor; that she maintained an office as a real estate broker and had several associates working with her, including Katherine Hughes. She alleged that L. W. Buckley was engaged in the business of constructing homes in the Dallas area and that Buckley had requested her to secure a purchaser for a home which he had constructed at 4007 Miramar in the City of Dallas. That pursuant to Buckley's request she, and her associate, Mrs. Hughes, showed the property and did secure a prospective purchaser for the property, Mr. and Mrs. Clint Josey, Jr. That upon being advised that the property located at 4007 Miramar had been sold several days previously Buckley advised Mrs. Hughes that if the Joseys desired to do so he would construct them a similar house on a lot of their choosing. Thereupon Mrs. Hughes induced the Joseys to enter into a contract with Buckley for the purposes of constructing a house on another lot purchased by the Joseys at 4008 Miramar. Appellant alleged that it was orally agreed between Mrs. Hughes and Buckley that for and in consideration of her efforts in securing the contract between Buckley and the Joseys that Mrs. Little would receive a commission upon the purchase price of the home, such percentage to be arrived at between Mrs. Little and Buckley directly. She alleged that Buckley built the house for which he received $83,500 and that because her associate performed services generally performed by persons engaged in the same or similar business, and because of the oral contract between Mrs. Little and Buckley she would be entitled to receive the amount of $5,010 commission. In the alternative, *684 Mrs. Little sought recovery of reasonable compensation for services rendered on the basis of quantum meruit.
Buckley answered with a general denial, a special denial that any agreement was made, and that if there was an agreement there was no consideration or that the consideration had failed.
Appellee filed his motion for summary judgment, supported by a portion of the deposition of Mrs. Little. Responding to this motion Mrs. Little filed a sworn controverting answer and attached thereto an affidavit of Mrs. Hughes and also an affidavit of a realtor, Mrs. Porter. The complete deposition of Mrs. Little was considered by the court and ordered sent to this court as a part of the record for review. The trial court sustained the motion for summary judgment and rendered judgment denying any recovery against appellee. Mrs. Little appeals.
SUMMARY JUDGMENT EVIDENCE
The summary judgment evidence, presented most favorably in the light of the contention of appellant, as we are required to do, may be summarized as follows:
Katherine Hughes, in her affidavit, said that she was a duly licensed realtor "doing business as an associate and agent of Adele Little." That during the year 1966 the office of Adele Little and Mrs. Hughes was contacted by Mr. L. W. Buckley relative to acquiring a purchaser for a home which he had constructed at "4005 Miramar". That the office of Adele Little sought to aquire a prospective purchaser and that she, as agent and associate of Mrs. Little, expended approximately six months in locating a prospect, Mr. and Mrs. Clint Josey, Jr., who were willing to purchase the property. That they were advised that the property at "4005 Miramar" had been sold the previous day. She said:
"That thereafter, as an alternative to the selling of the property at 4005 Miramar, Katherine Hughes requested L. W. Buckley to construct a similar home for the Joseys on a lot of their choice, which L. W. Buckley agreed to do. Upon the securing of this agreement in behalf of L. W. Buckley, and in consideration of the introduction of the Joseys to L. W. Buckley * * *, and the agreement between L. W. Buckley and the Joseys to build, the said L. W. Buckley agreed to pay the usual and customary commissions for such charges in the Dallas area which your Affiant knew would not be less than 6 percent."
She further said that the Joseys then acquired a lot of their choice at 4008 Miramar and that Buckley proceeded to erect a house thereupon and was paid the sum of $83,500 by the Joseys. She said:
"That at various times during the negotiations and the bringing together of the seller and purchaser enabled L. W. Buckley to sell the second house and after numerous discussions over commissions, it was understood by both parties a commission was to be paid and further there was no written contract between Mr. L. W. Buckley and Mrs. Adele Little because it is usual and customery for Realtors to deal with builders on parole (sic) agreements."
Rufus Porter, a licensed real estate broker in the City of Dallas, said in his affidavit that, based upon twenty-three years' experience in the real estate business in Dallas, that he was personally acquainted with the usual and customary practices existing in Dallas during 1967 between home builders and realtors; that it is the usual and customery practice that agreements relative to the listing for sale of property between such parties be in the nature of parol agreements; that it is the usual and customary procedure between realtors and home builders that when a realtor secures and actually furnishes a prospective purchaser of a home or structure to be built upon the lot of the purchaser's choice, that the realtor would customarily expect to receive a commission for acquiring the *685 prospect who ultimately enters into a contract with the builder to erect a structure.
Appellant, Adele Little, testified in her deposition that she has been a licensed real estate broker for approximately eight years and that she operates her place of business in Dallas which is solely owned by her. She said that she had "associates" who worked under her direction and that she was responsible for their acts. One of her "associates" or "representatives" or "agents" was Mrs. Katherine Hughes. She referred to Mrs. Hughes throughout her deposition as her "representative" or "associate" or "agent". She said that Mrs. Hughes first contacted Mr. and Mrs. Clint Josey, Jr. in the early part of 1966 for the purpose of helping them find a home. She said that she personally had several dealings with the Joseys but most of the transactions were handled by Mrs. Hughes who was the "agent who was showing the property." She said that she had known Mr. Buckley ever since she had been in the real estate business. In describing what happened leading up to the Buckley-Josey deal, she said that her agent, Mrs. Hughes, had showed the Buckley house across the street from the lot that they eventually bought but that before the Joseys could buy it the house had been sold to someone else. Immediately Mrs. Hughes tried to get the Joseys to build upon another lot and they finally decided upon one at 4008 Miramar. She said that all during this time "we were in communication with Mr. Buckley." Mrs. Hughes persuaded the Joseys to buy the lot and have the existing house torn down and also to have Mr. Buckley to build them a new one. She emphasized that the preliminary negotiations were carried on by Mrs. Hughes, the Joseys and Mr. Buckley. When asked when was the first time she had any direct communication with Mr. Buckley or the Joseys concerning the purchase of the property at 4008 Miramar she said:
"The first time that Mr. Buckley and I had any discussions was after many discussions between Mrs. Hughes and Mr. Buckley concerning whether this would be a three or six per cent commission. So the only time I had any discussion with Mr. Buckley was when Mr. Buckley and I were resolving that it would be six and not three."
She said that Mr. Buckley came to her office and it was there that "we agreed on the six per cent." At that time the Joseys had already purchased the lot at 4008 Miramar but Mr. Buckley had not signed the contract with the Joseys to erect the new house. She said that Mrs. Hughes had sold the Joseys on the idea of Mr. Buckley building their new house and that they did not know Mr. Buckley until she introduced them. She said:
"There was never any question in our mind about Mr. Buckley and the commission until Mr. Buckley brought it up, but there was only one person who Mrs. Hughes was trying to sell, and it was Mr. Josey, and her entire efforts were spent to this; number one, to sell them on the idea of building a house about which Mr. Josey had been allergic; and since they liked the house of Mr. Buckley, that he should certainly be the contractor they use."
Mr. Buckley raised the question about commission, and said that he thought Mrs. Little should only get three per cent. Mrs. Hughes and Mrs. Little were contending for the usual six per cent. Mr. Buckley contacted Mrs. Little before he drew the contract with the Joseys and asked Mrs. Little to go over to the Joseys and discuss with them the fact that the six per cent commission would be added. Mrs. Little refused to do so but said to him: "Let us go over to the Joseys and write the contract, discuss your profit and my commission." Mr. Buckley would not do this and it was agreed that he would draw the contract and add the six per cent commission due Mrs. Little. She quoted Mr. Buckley as saying, "You trust me * * *. It's a gentleman's agreement that I will *686 pay you six per cent and I will write the contract when I get the figures." Later Mr. Buckley refused to pay the six per cent and when she asked him what amount he had in mind he said "Seven hundred dollars."
Mrs. Little testified:
"Q What did you personally do to earn this five thousand dollars that you claim you're entitled to?
A Me, personally?
Q Yes.
A Imy agent introduced the client and sold the job.
Q In other words, whatever services were performed in return for this alleged five thousand dollars, they were performed by Mrs. Hughes, is that correct?
A Yes, right. She was the selling agent."
She testified that Mr. Buckley told her that the six per cent commission would be payable at the time of closing. She agreed for him to prepare the contract because she trusted him. She testified that it was the custom of the real estate trade that whenever a realtor brings a builder and prospective purchaser together that the real estate agent is entitled to six per cent commission from the builder.
OPINION
Appellant assails the judgment in two points of error contending (1) that the summary judgment evidence discloses the existence of an issue of fact concerning the alleged parol contract between Mrs. Little and Buckley; and (2) that the record reveals an issue of fact to support appellant's alternative plea based upon the equitable doctrine of quantum meruit. Having carefully examined this record in the light of the well established rules of judicial review of summary judgments we sustain both of appellant's points and reverse the judgment.
Only recently this court has had occasion to reannounce the rule that when a party elects to file a motion for summary judgment pursuant to Rule 166-A, Vernon's Texas Rules of Civil Procedure, it assumes an extraordinary burden. It must show by competent summary judgment evidence that there was no genuine issue as to any material fact pertinent to the cause of action and that it was entitled to the judgment prayed for as a matter of law. Risinger v. Fidelity & Deposit Co. of Maryland, 437 S.W.2d 294 (Tex.Civ.App., Dallas 1969); Plantation Foods, Inc. v. City of Dallas, 437 S.W.2d 396 (Tex.Civ.App., Dallas 1969); Johnson v. Floyd West & Co., 437 S.W.2d 298 (Tex.Civ.App., Dallas 1969); and Page v. Baldon, 437 S.W.2d 625 (Tex.Civ.App., Dallas 1969).
Judicial resolution of the question of whether the moving party has discharged its burden thus imposed by law requires the application of landmark rules promulgated by our Supreme Court and itemized by us in Johnson v. Floyd West & Co., supra. These rules enjoin us the determine if there are issues of fact to be tried and not to weigh the evidence or determine the credibility of the witnesses and thus try the case on the affidavits and depositions. We must also view the evidence in a light most favorable to the party opposing the motion and if there are any doubts as to the existence of a genuine issue such must be resolved against the party making the motion. All conflicts in the evidence are disregarded and all evidence which tends to support the position of the party opposing the motion is accepted as true. Evidence which favors the moving party's position is not considered unless it is uncontradicted and if such uncontradicted evidence is from an interested witness it cannot be considered as doing more than raising an issue of fact unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony.
When we perform a critical analysis of the summary judgment evidence, summarized *687 above, in the light of these rules it becomes quite apparent that appellee Buckley has failed to carry his burden of establishing the nonexistence of issuable facts and of demonstrating that he is entitled to the judgment, as a matter of law. The record falls short of constituting clear and satisfactory proof that no agreement existed between Mrs. Little's office and Buckley. Appellee places great stress upon certain portions of Mrs. Little's testimony as given in her deposition but when the entire deposition is reviewed we are confronted with conflicts which must be resolved by a trier of fact. Thus in one instance Mrs. Little apparently testifies that her personal agreement with Buckley for the six per cent commission came into being after the agreement between Buckley and the Joseys. So appellee argues that there is an entire absence of consideration. However, in the same deposition Mrs. Little testifies that the agreement whereby Buckley either expressly or impliedly promised to pay commission was made during numerous discussions between Buckley and Mrs. Hughes, Mrs. Little's agent or representative. The record, in this state, creates a doubt or uncertainty which must be resolved against Buckley.
Appellee concedes in his brief that there is some evidence to support appellant's contention concerning the agreement between Buckley and "Little's agent". However, he argues that such contention of agency is at variance with the pleadings. While there may be some question concerning the sufficiency of appellant's pleadings in this connection, yet our Supreme Court has held that when the affidavits or other summary judgment evidence disclose facts which render the position of the moving party untenable summary judgment should be denied regardless of defects which may exist in the pleadings of the opposite party. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1956). See also Gonzales v. Texas Employers' Ins. Ass'n, 408 S.W.2d 521 (Tex.Civ.App., Eastland 1966, writ ref'd n.r.e.).
Aside from the question of express oral agreement to pay commission we think that the record is sufficient to create an issue of fact on the theory of quantum meruit. The affidavit of Porter, the affidavit of Mrs. Hughes, as well as the deposition testimony of Mrs. Little, all support this theory of recovery.
Appellant's points of error are sustained and the judgment of the trial court is reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/998348/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALI KIA,
Plaintiff-Appellant,
v.
No. 98-2399
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-98-170)
Submitted: March 16, 1999
Decided: March 30, 1999
Before WIDENER, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Karl H. Goodman, KARL H. GOODMAN, P.A., & ASSOCIATES,
Baltimore, Maryland, for Appellant. Frank W. Hunger, Assistant
Attorney General, Michael P. Lindemann, Assistant Director, Ethan
B. Kanter, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ali Kia appeals the district court's order dismissing his complaint
for declaratory relief for lack of subject matter jurisdiction. We
affirm.
This case involves Kia's efforts to obtain a determination of his
application for naturalization. Under 8 U.S.C. § 1447(b) (1994), a nat-
uralization applicant who has not received a determination on his
application within 120 days of his examination for naturalization by
the Immigration and Naturalization Service (INS) is authorized to file
a request in the district court for a hearing. The district court "has
jurisdiction over the matter and may either determine the matter or
remand the matter, with appropriate instructions, to the Service to
determine the matter." 8 U.S.C. § 1447(b).
On October 17, 1997, the INS interviewed Kia regarding his appli-
cation for naturalization. More than 120 days later, on March 27,
1998, Kia filed a complaint in the district court for declaratory judg-
ment of his naturalization pursuant to § 1447(b). On April 15, 1998,
while the complaint was pending in the district court, the INS denied
Kia's naturalization application based upon his inability to satisfy the
English literacy requirements. On July 6, 1998, the INS moved to dis-
miss the complaint as moot. The district court granted the motion and
dismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(1).
We review dismissals for lack of subject matter jurisdiction de
novo. See Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996).
Kia first contends that the INS' failure to make a decision on natural-
ization with 120 days along with the filing of his complaint in the dis-
trict court pursuant to 8 U.S.C. § 1447(b) precluded the INS from
rendering a decision on his application without a remand and order
from the district court. We agree with the district court that the plain
2
language of § 1447 suggests the district court requires an unreviewed
application in order to make a determination, and that the INS' denial
of naturalization shortly after Kia filed suit mooted the case and
deprived the court of jurisdiction. See Sze v. INS, 153 F.3d 1005 (9th
Cir. 1998) (dismissing appeal of action brought under 8 U.S.C.
§ 1447(b) for lack of jurisdiction due to naturalization of plaintiffs
while action was pending).
Kia next takes issue with the INS' denial of his application for nat-
uralization, challenging the determination that he failed to meet the
English literacy requirement. Because the disposition of Kia's natu-
ralization application is not properly before the court, we decline to
address this issue.
Finally, Kia maintains that the district court erred in assuming that
upon dismissal of this action, he could appeal the denial of naturaliza-
tion to the district court under 8 U.S.C. § 1421 (1994). Kia notes that
the thirty-day time frame for the initial administrative appeal has
expired and claims the INS intentionally moved to dismiss after expi-
ration of the appeal period in order to prevent him from obtaining
relief. We find these contentions meritless. An appeal of the denial of
naturalization was indeed available to Kia, and he evidently chose not
to contest that determination. See 8 U.S.C.§ 1447(a) (1994); 8 C.F.R.
§§ 336.1-2, 336.9 (1998). Moreover, the record discloses that Kia was
properly notified of the appeal period, and that he could reapply for
naturalization at any time.
We accordingly affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566609/ | 161 F.2d 973 (1947)
GIBSON
v.
UNITED STATES.
No. 10401.
Circuit Court of Appeals, Sixth Circuit.
June 2, 1947.
Appellant not represented.
Vincent Fordel, of Detroit, Mich. (John C. Lehr and Vincent Fordel, both of Detroit, Mich., on the brief), for appellee.
Before HICKS, SIMONS and MARTIN, Circuit Judges.
HICKS, Circuit Judge.
On June 13, 1941, appellant entered a plea of guilty to an indictment for a criminal offense in the United States District Court for the Southern District of Ohio and was placed on probation for three years. On the 12th day of March, 1943, his probation was revoked and set aside and upon his plea of guilty he was sentenced to imprisonment for a period of five years. While serving this sentence in the Federal Correctional Institution at Milan, Michigan, he committed an assault upon a fellow prisoner and was indicted therefor on February 7, 1946, in the District Court for the Eastern District of Michigan. He plead guilty and was sentenced to imprisonment for six months, the sentence to commence after the expiration of the five year sentence.
On February 8, 1946, the Good Time Forfeiture Board recommended to the Warden at Milan, Mich., that the good time which appellant had earned on the five year sentence be forfeited and the Warden imposed the forfeiture on February 12, 1946.
On September 24, 1946, appellant filed in the District Court for the Eastern District of Michigan a petition for a writ of habeas corpus. On November 4, 1946, the court held a hearing upon the petition *974 and denied it. There was no appeal from the judgment denying the writ and we need not pursue that matter further.
On November 27, 1946, appellant filed in the District Court a petition against Lemuel F. Fox, Acting Warden, United States Correctional Institution, Milan, Mich., for a declaratory judgment. The relief sought was an interpretation of the following sentence found in Title 18 U.S.C.A. § 710, to wit: "When a prisoner has two or more sentences, the aggregate of his several sentences shall be the basis upon which his deduction shall be estimated."
The ultimate effective relief sought is an order requiring the Warden to discharge appellant from imprisonment. The Warden is in effect a representative of the United States and there is grave doubt whether the Declaratory Judgment Act is applicable. There is nothing in the Act, Title 28 U.S.C.A. § 400, to indicate that the Government has consented to be sued. See Love v. United States, 8 Cir., 108 F.2d 43; Yeskel v. United States, D.C., 31 F. Supp. 956.
But this to one side, "no actual controversy" appears now to exist between appellant and the Warden. Having forfeited all his good time on his five year sentence on February 12, 1946, he will not have completed this five year sentence until March 12, 1948, or, upon the date when the good time earned by him between those dates would terminate that sentence. See United States ex rel. Rowe v. Nicholson, 4 Cir., 78 F.2d 468. That date of course is an indefinite date. He will under the statute be entitled to such good time earned by him at the rate of eight days for each month, provided his "record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment. * * *" (See Sec. 710, supra.)
But even when the allowance of good time terminates his imprisonment upon the five year sentence, he must then undergo imprisonment upon the six months' sentence for a separate offense until any allowable good time for that period has terminated it. This period is also of course indefinite and contingent upon the record of appellant's conduct.
As we understand it, petitioner's claim is that if and when he enters upon imprisonment upon the six months' sentence he would be entitled to a basis of eight days' deduction for good time for each month, for he will have an aggregate of two sentences in excess of five years, one following the other. This contention has full support in Sweetney v. Johnston, Warden, D.C., 50 F. Supp. 326, and is an added inducement to good behavior. But we are not authorized to enter a judgment discharging appellant. He has not exhausted the procedure afforded by Title 18 U.S.C.A. § 711. See Brown v. Johnston, Warden, 9 Cir., 91 F.2d 370, 372. There is obviously no merit in appellant's contention that he is undergoing double punishment for the same offense. See Pagliaro v. Cox, Warden, 8 Cir., 143 F.2d 900.
The order of the District Court denying appellant's petition for a declaratory judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566611/ | 440 S.W.2d 68 (1969)
James O. STEAMBARGE, Appellant,
v.
The STATE of Texas, Appellee.
No. 42050.
Court of Criminal Appeals of Texas.
April 23, 1969.
*69 Raeburn Norris, Houston, for appellant.
Jules Damiani, Jr., Dist. Atty., R. L. Wilson, Asst. Dist. Atty., Galveston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ONION, Judge.
The offense is destroying property belonging to another (Article 1350, § 1(a) Vernon's Ann.P.C.); the punishment assessed by the jury, three years' confinement in the Texas Department of Corrections, probated.
Article 1350, § 1(a), supra, reads as follows:
"It shall be unlawful for any person to wilfully injure or destroy, or attempt to injure or destroy, any property belonging to another, of any kind whatsoever, without the consent of the owner and lienholder, if any, thereon."
Omitting the formal parts, the indictment in this cause reads as follows:
"* * * did then and there unlawfully and willfully attempt to injure and destroy and did willfully injure and destroy certain property belonging to another, to-wit, one (1) straight chair of the value of Fifty Dollars ($50.00), one (1) table of the value of Fifty-Five Dollars ($55.00), one (1) table of the value of Eighteen Dollars ($18.00), one (1) lamp of the value of Thirty-Five Dollars ($35.00), one (1) lamp of the value of Thirty-Seven Dollars and Fifty Cents ($37.50), two (2) hassocks of the value of Twelve Dollars ($12.00) each, one (1) vase of the value of Fifteen Dollars ($15.00), one (1) glass figurine of the value of Thirty-Nine Dollars ($39.00), belonging to Gale Van Hoy without the consent of the said Gale Van Hoy, the owner thereof."
Initially, the appellant complains that the trial court erred in overruling his motion to quash the indictment since (a) the allegations are duplicitous in that in the same count the offense of an attempt to injure and destroy as well as the completed offense is alleged, and (b) it does not allege the manner or "how" appellant allegedly attempted to injure and destroy and did injure and destroy the items enumerated.
First, we note that the indictment in the case at bar is in substantial conformity with the form set forth in Willson's Criminal Forms, 7th Ed., Vol. 7, Sec. 1863, p. 417, with the exception that the value of each article of property is here separately alleged. Such additional allegations have been held unnecessary. Lacy v. State, Tex.Cr.App., 412 S.W.2d 911.
*70 It is clear that the indictment does not charge more than one offense. The provisions of Article 21.24, Vernon's Ann.C.C.P., that an indictment may not charge more than one offense does not prohibit alleging several ways in which an offense was committed or charging more than one offense based upon the same incident or transaction. See Vannerson v. State, Tex.Cr.App., 408 S.W.2d 228; Rose v. State, Tex.Cr.App., 427 S.W.2d 609; Breeden v. State, Tex.Cr.App., 438 S.W.2d 105 (February 5, 1969).
In 30 Tex.Jur.2d, Indictment and Information, § 40, p. 605, it is said:
"Duplicity is the joinder of two or more distinct offenses in the same count, or the joinder in the same count of two or more phases of the same offense where the punishment is different. * * *
"Whether or not offenses are to be treated as distinct depends on whether they are embraced within the same general definition and punishable in the same manner. If they are, then they are not distinct offenses and may be charged in a single count."
In the case at bar it is observed that under the provisions of Article 1350, § 1(a), that the offenses here are embraced within the same general definition and punishable in the same manner and we perceive no error in the indictment in this regard.
We further note that only the "completed offense" was submitted to the jury in the court's charge.
We overrule Section (a) of appellant's first ground of error.
Prior to the 1951 amendment of Article 1350, supra, while an indictment need not have excluded the idea that it is covered by some other provision of the penal code, Adams v. State, 47 Tex. Crim. 35, 81 S.W. 963, it was held that the nature of the injury should be stated so it might be seen whether or not the injury came within the offenses "otherwise provided for." Todd v. State, 39 Tex. Crim. 232, 45 S.W. 596.
It is to Todd v. State, supra, that appellant directs our attention with reference to his claim that there was no allegation in the indictment as to manner and means.
At the time of the Todd case, the statute in question (Art. 791, P.C.1895) read as follows:
"If any person shall wilfully and mischievously injure or destroy any growing fruit, corn, grain or other like agricultural product, or if any person shall wilfully or mischievously injure or destroy any real or personal property of any description whatever in such manner as that the injury does not come within any of the offenses otherwise provided for by this Code, he shall be fined not exceeding one thousand dollars; provided that when the value of the property injured is fifty dollars or less, then he shall be fined not exceeding two hundred dollars." (emphasis supplied)
In Todd this Court said, "We believe * * * that the nature or character of the injury should be averred. This is a part of the definition of the offense, and should be stated, in order that appellant may know the particular accusation charged against him so as to meet it. In this case the particular character of injury, according to the proof, consisted in befouling, discoloring, and defacing the floor of said room. This, however, was not stated. It should have been done. If the nature and character of the injury had been stated in the indictment, then it could be seen whether or not the injury came within the definition of `any other offense' covered by statute, and the question as to the validity of the information in this respect could be presented to the court by an exception. We hold that the indictment was defective, and that the same should have been quashed. The judgment is accordingly reversed, *71 and the prosecution ordered dismissed."
In Uresti v. State, 167 Tex. Crim. 189, 319 S.W.2d 340, a similar contention was presented. There it was urged that the phrase in the indictment "by striking, knocking or breaking" was not sufficiently explicit to put the accused on notice of the offense charged against him. There this Court, however, refused to consider the matter since it was not shown that the motion to quash the indictment was called to the trial court's attention and no fundamental defect in the indictment was observed.
It is observed, however, that Article 1350 § 1(a) as amended in 1951 and as now appears by virtue of the 1957 amendment, does not include the phrase "in such manner as that the injury does not come within any of the offenses otherwise provided for by this Code." Since this phrase is no longer a part of the definition of the offense, we do not deem Todd v. State, supra, is here controlling. Nor do we deem the provisions of Sec. 2 of Article 1350 as calling for a different conclusion. Those provisions are contained in a separate section of the act and do not form a part of the definition of the offense.
In 30 Tex.Jur.2d, Indictment and Information, Sec. 39, p. 585, it is written:
"The state in its accusatory pleading is not required to allege the particular mode or means employed in the commission of an offense, except when this is of the essence of the offense charged."
In view of the 1951 and 1957 amendments to Article 1350, supra, we hold that the indictment in this case is sufficient to charge the offense of which appellant was convicted and that the court did not err in overruling appellant's motion to quash the indictment.
Ground of error #1 is overruled.
Next, appellant complains of the court's failure to charge the jury on the defensive theory of accident in response to his written objection and special requested charge timely presented.
The record reflects that while drinking "quite a bit" of beer at a Houston night club on January 11, 1967, appellant became incensed when he learned the complaining witness Van Hoy had allegedly made remarks concerning appellant's beating of his (appellant's) wife. Returning to Dickinson he aroused his estranged wife and forced her to accompany him to the complaining witness' home in the early morning hours because he was "just mad as hell." After the complainant's wife admitted the couple, appellant proceeded to assault his wife and kick and smash the furniture. When the complaining witness appeared he was attacked by appellant, chocked and thrown upon a tier table smashing it and breaking the lamp thereon. In response to Mrs. Van Hoy's pleas appellant stated, "I'll break any G.D. thing I want to." The complainant fled from the house and returned with 3 peace officers who had to forcibly subdue the appellant.
The evidence showed that each article of property listed in the indictment was demolished and destroyed and the proof supported the values alleged.
We have examined the record, including the testimony of appellant and his wife, and do not find the evidence such as to support the submission of the issue of accident. The trial court's failure to so charge was not error.
Ground of error #2 is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566612/ | 161 F.2d 601 (1947)
WAGNER
v.
HUNTER.
No. 3447.
Circuit Court of Appeals, Tenth Circuit.
May 8, 1947.
Rehearing Denied June 4, 1947.
*602 John H. Tippit, of Denver, Colo., for appellant.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
HUXMAN, Circuit Judge.
This is an appeal from an order discharging a writ of habeas corpus and remanding petitioner to the custody of respondent, Walter A. Hunter.
Petitioner was indicted in the United States District Court for the Northern District of Alabama, Southern Division, in Criminal Case No. 11,353. The indictment was filed September 9, 1943. On October 4, 1943, petitioner waived his right to appear for arraignment in the Southern Division of the court at Birmingham, and asked leave to plead to the indictment at Jasper in the Jasper Division of the court. Leave being granted, he entered a plea of not guilty. Thereafter he was tried and found guilty by a jury for the Northern District of Alabama, Southern Division, at Birmingham, Alabama. He was represented at the trial by counsel of his own choosing. Following his conviction, he appeared before the trial court with his own attorney, and received the sentence which he is now serving. A notice of appeal was docketed in the United States Circuit Court of Appeals for the Fifth Circuit, but the appeal was not perfected and was subsequently dismissed.
In the habeas corpus action instituted in the court below, petitioner set up numerous grounds in support of his contention that the judgment and sentence imposed on him are void. In general, he asserted that the indictment was obtained by fraud and that his conviction was obtained by the government knowingly using perjured testimony; that he was denied the right of counsel at the time of his arraignment at Jasper; and that when the case was transferred to the Jasper Division for arraignment, the Southern Division lost jurisdiction of the case and was without jurisdiction thereafter to hear and try the case.
Petitioner was accorded a lengthy, full and complete hearing in the court below. In his appeal to this court, he sets up twenty-nine assignments of error. They largely consist of a restatement, in a confused way, of the points above outlined.
There is a complete lack of any showing that the indictment was procured by fraud and this part of the appeal needs no further consideration.
Concerning his asserted denial of his right to be represented by counsel at the time of his arraignment at Jasper, it is sufficient to say that the recitals of the court affirmatively show that his right to counsel was explained to him, that he was specifically asked if he desired counsel, and replied that he did not want counsel. Without exception we have held that the absence of fraud, the records of a court import absolute verity and may not be impeached by extrinsic evidence.[1]
There is a complete lack in record of any showing which would remotely tend to support the assertion that perjured testimony was knowingly used by the prosecuting attorneys in the trial of the case. Taking petitioner's own testimony at par, the most that can be said for it is that it shows that some of the witnesses gave false testimony. But even if this be true, it does not void the judgment. The vice which will vitiate the judgment of a court is the knowing, wilful and intentional use of perjured testimony in a trial to secure a conviction.[2]
The final contention which merits consideration is the asserted lack of jurisdiction of the Southern Division at Birmingham to try the case. As noted above, the case was transferred to the Jasper Division at the request of petitioner, for arraignment, and was thereafter transferred back *603 to the Southern Division at Birmingham for trial. Petitioner contends that when the case was transferred to Jasper, the Southern Division lost jurisdiction and could not thereafter try the case. There was no general transfer of the case to the Jasper Division. All there was was an appearance there by petitioner, at his request, for arraignment.
The power to transfer a case from one division of the court to another rests largely within the discretion of the court having full jurisdiction over the entire district. In Rosecrans v. United States, 165 U.S. 257, 17 S. Ct. 302, 305, 41 L. Ed. 708, the Supreme Court said: "So far as the mere transfer of the place of trial from one division to another, it would seem, in the absence of express prohibition, to be within the competency of the court having full jurisdiction over the entire district, and certainly presents no ground of error when it is not at the time challenged, and the trial proceeds without objection." The jurisdiction of the judge who tried the case at Birmingham, as well as the jurisdiction of the judge who presided at the arraignment at Jasper in the Jasper Division was coextensive with both divisions.
In Gee Lung v. United States, 9 Cir., 111 F.2d 640, it was held that the question of transfer of a case for trial within the district rested entirely in the discretion of the court, and can be reviewed only for an abuse of such discretionary power. As pointed out, there is no showing that there was a general transfer of this case from the Southern Division to the Jasper Division. Furthermore, at the trial of the case, petitioner was represented by counsel of his own choosing. No objection was made to the jurisdiction of that court to hear the case. Under these circumstances, even if there should have been some irregularity in the transfer of this case in that no formal order was entered, petitioner has waived his right to object thereto, if such right existed. It would not be fatal to the jurisdiction of the court that tried him and would not constitute grounds for release by habeas corpus.
We find no error in the proceedings in the court below, and the judgment appealed from is therefore affirmed.
NOTES
[1] Thomas v. Hunter, 10 Cir., 153 F.2d 834; Bennett v. Hunter, 10 Cir., 155 F.2d 223.
[2] Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791, 98 A.L.R. 406; Casebeer v. Hudspeth, 10 Cir., 121 F.2d 914. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566627/ | 161 F.2d 607 (1947)
CLAY
v.
UNITED STATES.
No. 11784.
Circuit Court of Appeals, Fifth Circuit.
May 16, 1947.
Arthur A. Moreno, of New Orleans, La., for appellant.
Sewall Key, Acting Asst. Atty. Gen., Newton K. Fox, Sp. Asst. to the Atty. Gen., both of Washington, D. C., Herbert W. Christenberry, U. S. Atty., and Robert Weinstein, Asst. U. S. Atty., both of New Orleans, La., for appellee.
Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.
LEE, Circuit Judge.
In her income tax return for the year 1940, appellant reported as community income the income from certain of her separate properties. The Commissioner ruled the income appellant's separate income, taxable to her, and levied a deficiency assessment. Appellant *608 paid the assessment and filed a claim for refund; upon payment being refused, this suit was brought to recover the amount of the claim. The court below sustained the Commissioner, and appellant prosecuted this appeal.
The sole question is whether income from separate property of the taxpayer, where property and income were excluded from the community by prenuptial contract, constitutes, when the property is administered by the husband, community income, one-half of which is taxable to appellant, or separate income, taxable in full to appellant.
On December 21, 1939, prior to their marriage, Louis House Clay and Mrs. Stuart Sanderson, widow of David F. Dixon, residents of New Orleans, Louisiana, entered into an agreement. The pertinent parts of this agreement recite:
"Whereas a promise of marriage exists between them, which is to be duly solemnized and celebrated according to law shortly after the execution of this act, they have in consequence thereof entered with each other into the following stipulations as regulating the conjugal community that will result from their contemplated marriage, towit: [Emphasis added.]
"(1) There shall be a community of acquets and gains between the contracting parties from the date of the celebration of their said marriage to each other, which said community of acquets and gains shall embrace all future acquisitions and shall embrace only said future acquisitions, all of their separate property herein specified and set forth to be and remain distinct and separate property and to form no part whatsoever of the said community of acquets and gains:
"(2) The debts contracted by each party hereto previous to the marriage to be entered into between them are to be paid by the party who shall have contracted same and without the property of the other party being in anywise liable for payment thereof;"
A description of the separate properties owned by each was followed by this provision with respect to the taxpayer: "(5) All property and effects of Mrs. Stuart Sanderson, widow of David Frank Dixon, * * * set forth and described hereinabove and owned by her at the time of the celebration of the intended marriage, together with all property and effects to be acquired thereafter and during the existence of said contemplated marriage, are hereby declared to be her separate and paraphernal property, and she does hereby expressly reserve unto herself the entire and complete administration and control of her separate property, both movable and immovable, whether owned by her or hereafter acquired, in any manner whatsoever, and she does hereby expressly reserve unto herself the complete and free enjoyment, control and use of all of the revenues, income, produce, interest, and appreciation in value thereof."
The income in question is largely made up of dividends from stocks listed in the prenuptial agreement as taxpayer's separate property. The contention is made that following the marriage her husband administered the separate properties of the taxpayer, and, hence, under the Louisiana law, the income from said properties fell into the community of acquets and gains existing between them. R.C.C. art. 2386. The court below found for the taxpayer with reference to the administration of her separate property by her husband, but held that, under the prenuptial agreement, the fact of the husband's administration was without legal significance; that the community of acquets and gains was subject to the modifications of the prenuptial agreement and that, under that agreement, the wife had retained complete administration and control of her separate property and had expressly reserved unto herself the complete and free enjoyment, control, and use of all of the revenues therefrom; that the provisions of such contract were not subject to change by the parties subsequent to their marriage; and that, therefore, the income in question was the taxpayer's separate income.
Here, the taxpayer urges that: the recital of the agreement that properties owned by each of the contracting parties prior to marriage should remain the property of each; the recital that these properties would be under the administration of the respective parties; the recital that a community of acquets *609 and gains should exist between them; and the recital that the community should embrace all future acquisitions are all recitals of the provisions of the law itself. It is argued that the prenuptial contract merely states the result flowing from the marriage with respect to properties then owned and to be thereafter acquired; and that, as the contract contained no provision against the operation of the Louisiana law with respect thereto, the income of the wife from her separate property fell into her separate estate only so long as she had the administration and control; and, when such ceased and her husband took over, the income thereafter fell into the marital community under the provisions of the general law.
The preamble to the prenuptial agreement stated that its stipulations should regulate "the conjugal community that will result from their contemplated marriage." The first article of the Civil Code dealing with the marriage contract provides with respect to antenuptial agreements: "In relation to property, the law only regulates the conjugal association, in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals, and under the modifications hereafter prescribed." R.C.C. art. 2325. (Emphasis added.)
The modifications thereinafter prescribed are that the parties may not contract in order to alter the regular order of descent, or provide against the power of a husband as the head of the family, or attempt to vary "from the prohibitory dispositions of this Code." R.C.C. arts. 2326 and 2327.
Article 2329 then follows with the statement that a prenuptial agreement can be altered by the husband and wife jointly before the celebration of the marriage, but it cannot be altered after the celebration. In dealing with the community, the Code provides: "2332. Community of acquets or gains Modification or abrogation by agreement. The partnership, or community of acquets or gains, needs not to be stipulated; it exists by operation of law, in all cases where there is no stipulation to the contrary. [Emphasis added.]
"But the parties may modify or limit it; they may even agree that it shall not exist."
"2424. Modification of legal community by contract. Married persons may, by their marriage contract, modify the legal community, as they think fit, either by agreeing that the portions shall be unequal, or by specifying the property, belonging to either of them, of which the fruits shall not enter into the partnership."
Reading the provisions of articles 2325, 2329, 2332, and 2424, together, the conclusion is inescapable that the Louisiana law "only regulates the conjugal association, in default of particular agreements." Where no agreement is entered into prior to marriage in Louisiana, the marriage by operation of law creates a "legal community." Where a prenuptial agreement is entered into a "contractual community" is created. Hanley v. Drumm, 31 La.Ann. 106, 110.
In Deshautels v. Fontenot, 6 La.Ann. 689, the court had before it the question whether a child born to a female slave owned by the wife prior to her marriage was her separate property or belonged to the community between her and her husband. Their marriage took place in 1806, prior to the adoption of the Code of 1808. Under the law at the time of the marriage, a child of a female slave, who was separately owned by the wife, became community property; by the adoption of the Code of 1808, such child, under that Code, became the separate property of the wife. The child was born after adoption of the Code, and the court held that the change in the law made by the Code governed. In discussing the matter, the court, after calling attention to the fact that no prenuptial contract had been entered into, said the matter of the regulation of the community had been left to the operation of the law, subject to such changes as might be made from time to time by the legislature. The court said: "* * * In the absence of an agreement of the parties, the correct view to take of their contract [of marriage], is, that they submitted the regulation of their marital rights to the existing laws, subject to such changes by general laws, as might be adopted by the legislative power of the government, * * *."
By stipulating in prenuptial contract what was community and what was *610 separate property, the taxpayer and her husband regulated the legal results of the marriage. The provisions with respect to property rights similar to those of the existing law do not bring the contract under the operation of that law. The regulations prescribed in the prenuptial agreement irrevocably governed the community and separate rights. Any change made by legislative power would have no effect thereon. The absence of a provision that the general laws of Louisiana should regulate the community made inoperative those laws in community regulation. Thus the parties created a community no statutory change could alter.
Articles 2334, 2385, 2386, and 2402 of the Civil Code define what property is separate and what community.[*] These articles are restrictive and mandatory only where there is no prenuptial agreement.
"* * * it is said that art. 2371 [now article 2402] prescribes and specifies of what the community is composed. That it is restrictive and mandatory. That article regulates and defines the `legal community' not *611 the conventional community. It provides for the case where there is no agreement of parties, when they have been silent. It has no reference to the cases foreseen by articles 2305 [now 2325] and 2393 [now 2424], where the parties have modified by agreement the extent and character of the conjugal partnership.
"* * * it is said the parties by their subsequent acts and conduct have shown that it was not their intention to make this $4,000 community property. The answer to this is, that marriage contracts can not be changed or altered after marriage, even by formal agreement, much less by indirection, by acts and declarations. Their contract was reduced to writing. It can not be varied by what was said before at the time of, or after its confection * * *." (Emphasis added.) Hanley v. Drumm, 31 La.Ann. 106, 110. See also Desobry v. Schlater, 25 La. Ann. 425, and Succession of Hollander, 208 La. 1038, 24 So. 2d 69.
We agree with the court below that the income in question was governed by the prenuptial agreement and that, under the prenuptial agreement, it was the separate income of the wife.
While a discussion of it is not necessary to this decision, we are not in accord with the finding of the court below that the stocks from which the income was derived was under the administration of the taxpayer's husband. He was not a director in any of the corporations issuing the stocks, and, while officers of the corporations consulted him from time to time with respect to policy, his advice was not binding upon them. The officers were free to accept or reject it as they saw fit. The administration of the corporations was in the hands of the officers and directors, not of the taxpayer's husband. He attended stockholders' meetings with an express power of attorney from his wife to act for her and in her behalf. His appearance for her at stockholders' meetings was, in legal effect, her appearance. "* * * It is well settled that the wife may administer her paraphernal property through the agency of the husband, and that she may avail herself of his assistance if he is willing to render it, provided he act under her authority, and merely as her proclaimed agent. Such acts, though performed by the husband, are the acts of the wife. `Qui facit per alium, facit per se.' She has all the power of a feme sole in regard to the management of her separate property, including the power to employ agents. See [Barataria & L.] Canal Co. v. Field, 17 La. 421, 426; Jordan v. Anderson, 29 La.Ann. 749; Miller v. Handy, 33 La.Ann. 160." (Emphasis added.) Colvin v. Johnston, 104 La. 655, 663, 29 So. 274, 277.
Again, in Miller v. Handy, 33 La.Ann. 160, 163, the Supreme Court said:
"The Code emphatically declares that `the wife has the right to administer personally her paraphernal property without the assistance of her husband.' Rev.C.C. 2384.
"The terms, `without assistance,' as used in this article, mean, unquestionably, without his control, without the necessity of being thereunto authorized by him, as is the case with many of her acts. It is not incompatible with her personal administration that she should avail herself of the assistance of her husband, if he is willing to render it, provided he act under her authority and merely as her proclaimed agent. Such acts, though performed by him, are still the acts of the wife, under the maxim `Qui facit per alium, facit per se.'" (Emphasis added.) Cf. Simoneaux v. Helluin, 27 La.Ann. 183, and Reynolds v. Rowley, 2 La.Ann. 890, 893.
The judgment appealed from is affirmed.
NOTES
[*] "2334. Separate and common property of spouses. The property of married persons is divided into separate and common property.
"Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.
"The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.
"Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
"Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. But when the title to community property stands in the name of the wife, it can not be mortgaged or sold by the husband without her written authority or consent. [As amended, Acts 1912, No. 170; 1920, No. 186.]"
"2385. Wife failing to administer paraphernal property Management by husband. The paraphernal property, which is not administered by the wife separately and alone, is considered to be under the management of the husband."
"2386. Fruits of paraphernal property Ownership Reservation by wife. The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by a written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a notary public and two witnesses and duly recorded in the conveyance records of the parish where the community is domiciled.
"If there is no community of gains, each party enjoys, as he chooses, that which comes to his hand; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them. [As amended, Acts 1871, No. 87; 1944, No. 286, § 1.]"
"2402. Property forming community Personal injuries to wife. This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; `provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.' [As amended, Acts 1902, No. 68.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566593/ | 161 F.2d 852 (1947)
HOOKER
v.
NEW YORK LIFE INS. CO.
No. 9170.
Circuit Court of Appeals, Seventh Circuit.
May 8, 1947.
Rehearing Denied June 10, 1947.
Wendell J. Brown and Joseph A. Dubbs, both of Chicago, Ill., and Ferdinand H. Pease, of New York City, for appellant.
Herbert M. Lautmann, Isaac E. Ferguson, John J. Faissler and Henry S. Moser, all of Chicago Ill., for appellee.
Before EVANS, MAJOR and MINTON, Circuit Judges.
MAJOR, Circuit Judge.
This appeal is from a summary judgment in favor of the plaintiff and against the defendant in an action predicated upon the double indemnity provision of a life insurance policy. The policy was issued June 3, 1938, upon the life of George K. Hooker in the sum of $10,000, his father, John P. Hooker, being the beneficiary. The annual premium was $315.20 which included $16.80 for the double indemnity. The face amount of the policy has been paid by the defendant and it is the double indemnity, that is the additional $10,000, which is sought to be recovered in this suit. The double indemnity provision, so far as here material, provides:
"* * * upon receipt of due proof * * * that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * *; provided, however, that such double indemnity benefit shall not be payable if the insured's death resulted, directly or indirectly, from * * * war or any act incident thereto."
The sole question for decision is whether "insured's death resulted directly or indirectly, from * * * war or any act incident thereto." Obviously, a decision requires a determination of what was meant and intended by this so-called exclusion clause, as well as its application to the circumstances responsible for the insured's death.
There is no question on the record as to the facts. It is important, however, that they be related and kept in mind. The insured at the time of his death (May 19, 1943) and previous thereto was a captain in the United States Marines, assigned to Company "E," Third Tank Battalion, Third Marine Division, which was a part of the *853 21st Regiment of the United States Marines. On the date of the fatal accident this regiment was stationed in New Zealand and was engaged in war training maneuvers over an area of several square miles, about one mile from the bivouac area near Auckland. On the second or third day of the maneuvers Captain Hooker, while playing the role of a scout, was captured by the "enemy" (Company "E," Second Battalion, 21st Marines), and turned over to a patrol composed of about six members of Company "E," to be taken as a "prisoner" to their command post. On this return trip, while the patrol had stopped for rest, Captain Hooker, taking the guards by surprise, made a break to escape. In his effort to do so he ran about 100 yards with the guards in pursuit, when suddenly in the chase he leaped over a fence, breaking through bushes which were later found to cover the edge of a cliff about 60 or 75 feet deep. He fell over the cliff and was discovered below by the chasing patrol. He was semi-conscious and kept repeating such phrases as "have to get away" and "can't be captured." The accident happened about 2:30 p. m. and he died a few hours later from the injuries sustained in the fall. He was on official duty at the time the accident occurred.
Defendant requests that we take judicial notice of the facts of the existence and progress of World War II, which no doubt we may appropriately do. In connection with such matters, defendant sets forth in some detail the various battles and activities which had taken place prior to the insured's death, which we think unnecessary to relate. Plaintiff urges that we should also take judicial notice that the places and areas mentioned by the defendant were from two to six thousand miles distant from the maneuver area in New Zealand where the insured was accidentally injured.
Plaintiff's contention that the insured's death did not result, directly or indirectly "from * * * war or any act incident thereto" is based upon an extremely narrow and restricted meaning to be attributed to those words. In his brief he gives numerous dictionary definitions of the word "war" and concludes that "war" "in its ordinary and natural meaning, connotes an occurrence in course of active engagement between fighting forces." Consistent with this contention he states: "In a broad sense, of course, the insured as a captain in the Marine Corps was a participant in the war from the time of his enrollment until the time of his death. All of his activities, except perhaps while on leave, were part and parcel of the war program. But all such activities, however, did not constitute engagement or involvement in `war' or `act incident thereto,' within the meaning of the war exclusion clause of the double indemnity coverage."
In other words, he contends that "war" must be limited to actual combat and that an "act incident thereto" must be confined to an "act" performed in connection with actual combat duty. With this meaning thus attributed to "war or an act incident thereto," the argument is made that insured's death did not result therefrom. On the other hand, defendant concedes that all accidents occurring during the insured's military service are not excluded. Its position, however, is that the facts and circumstances surrounding the insured's injuries and resultant death show that such injuries were the result of "war or an incident thereto."
The parties have sought to fortify their respective contentions by the citation and discussion of innumerable cases. After studying them, we are satisfied that no good purpose could be served in attempting to review them all. We shall, therefore, confine ourselves to a few of the cases upon which emphasis is placed by the parties.
The only case called to our attention involving the same exclusion clause which the court applied to facts similar to those of the instant case is Eggena v. New York Life Ins. Co., 236 Iowa 262, 18 N.W.2d 530, decided by the Supreme Court of Iowa. In that case the insured was engaged in military training at Camp Chaffee, Arkansas. He was riding a government tank which was proceeding in a training convoy to a bivouac area. As the tank started across a bridge, the right track crashed through the bridge railing and fell to the stream bed below, causing the death of the insured from skull fracture. In that case *854 as here, the sole question was whether the death of the insured resulted directly or indirectly from war or any act incident thereto. The court, after discussing numerous cases, among other things stated (18 N.W.2d 534): "A clause excluding liability in the event death results directly or indirectly from war, we are satisfied, must apply to a member of the military forces, a member of an army tank crew, on active duty, while in the line of duty, acting under orders from superior officers and carrying out a military assignment as a part of his training during the prosecution of war. The death of insured was the direct result of an act incident to war. * * * We can conceive of no part of a soldier's duties while an active member of a military force, except actual combat, which is more directly traceable to war than the performance of the duties in which deceased was engaged at the time of the fatal accident. This would be the common understanding of an injury caused by war and it was so reported by insured's superior officer. It was a result of war, and as such the exclusionary clause applied."
Plaintiff in his brief states: "The fallacy of the Eggena case is that it does not limit the war exclusion clause of defendant's policy to engagement or involvement in war, but incorporates therein activities or occurrences accounted for by the existence of a state of war, even though such activities or occurrences do not of themselves form part of the conflict or hostilities."
Plaintiff's criticism of the Eggena case is another illustration of his contention that the exclusion clause must be limited to injuries sustained in actual combat. He also seeks to impair the holding of that case by arguing that three cases cited do not sustain the result reached. These cases are Stankus v. New York Life Ins. Co., 312 Mass. 366, 44 N.E.2d 687; Coxe v. Employers Liability Assurance Corp., 2 K.B. 629, and Vanderbilt v. Travelers Ins. Co., 235 N.Y. 514, 139 N.E. 715, affirming 112 Misc. 248, 184 N.Y.S. 54. While these cases are not precisely in point, we think they lend support to the decision, and in any event they are of no benefit to plaintiff's instant contention.
In the Stankus case [312 Mass. 366, 44 N.E.2d 688], the exclusion clause provided for death resulting "directly or indirectly, from * * * (d) war or any act incident thereto," as in the instant case. The insured was a member of a crew and was lost at sea when his vessel was sunk by a torpedo. At the time of insured's death the United States was not a participant in the then existing war and the plaintiff contended that the word "war" as used in the exclusion clause was not applicable under such circumstances. The court, in deciding against the plaintiff, stated (44 N.E.2d 687, 688): "The term `war' is not limited, restricted or modified by anything appearing in the policy. It refers to no particular type or kind of war, but applies in general to every situation that ordinary people would commonly regard as war. There is nothing in the policy that indicates that the word was used in any vague, indefinite or ambiguous sense. * * * We hold that the clause exempting the defendant from liability where death is caused by war is not restricted in its operation to a death that has resulted from a war being prosecuted by the United States."
In the Coxe case, the exclusion clause relieved the insurance company of liability for death "caused by, arriving from or traceable to * * * war." The insured, a captain, was run over by a railroad train. The company of which the insured was commander had been assigned to protect the railroad. The accident occurred when the insured was at night visiting the men under his command. The court held that the insured's death was caused by war and denied recovery. The point of this case is that the insured was not engaged in actual combat but in an activity incident to the prosecution of the war.
In the Vanderbilt case, the contract excluded death "resulting `directly or indirectly, wholly or partly from * * * war.'" The insured was a passenger on the British steamer Lusitania and was drowned when that ship was sunk by torpedoes fired from a submarine of the German government. Here, as in the Stankus case, the plaintiff sought to escape the exclusion clause on the ground that the United *855 States was not at war at the time of the insured's death. The court held that the act was one of war within the meaning of the exclusion clause and exonerated the defendant company.
In Selenack v. Prudential Ins. Co. of America, 160 Pa.Super. 242, 50 A.2d 736, 737, the court considered a situation similar to the instant case. The insured was in command of an armored tank engaged in demonstration. While returning to his post at Fort Knox, Kentucky, the tank, to avoid a collision, was driven off the highway and overturned, resulting in the insured's death. The exclusion clause excepted death resulting "from having been engaged in military or naval service in time of war." While the exclusion clause is not the same as that of the instant case, it was contended by the plaintiff that it applied "only to combatant service." The court in rejecting plaintiff's contention cited and discussed a number of cases, among which is the Eggena case, supra, and as to this case stated (50 A.2d 738): "The court held, and properly so, that the death of insured was the direct result of an act incident to war and recovery was denied on that ground."
The court also reviewed the opinion of the District Court in the instant case (Hooker v. New York Life Ins. Co., 66 F. Supp. 313) and concluded that it was against the "clear intent of plain excluding language."
Another case called to our attention is that of Clarke v. New York Life Ins. Co. (not reported), decided by the Court of Common Pleas, County of Sumter, South Carolina. Accidental death resulting "from war or any act incident thereto" was excluded. The insured while on active duty was killed while making a flight in an airplane. The court decided that the exclusion clause was applicable and in so doing stated: "In my opinion his death did result from war or some act incident thereto. I don't think we should confine that to the battlefield or to actual combat. It is necessary in the prosecution of the war for troops in this country to carry on duties. We could not divide the line right at the battle front. I could not say that if this had taken place in England, for example, it would not be a result of the war; and I think that a soldier who performs his war duties on the home front is participating in the war just as a soldier on the battlefield."
Plaintiff places his chief reliance upon Mattes v. Merchants Reserve Life Ins. Co., 221 Ill.App. 648 (reported only in abstract form although we have been furnished with the complete opinion), and the cases therein cited. In that case the insured was in the military service and while so engaged met his death at Camp Logan, Texas, while attempting to quell a riot between colored troops and white civilians. The policy contained a provision declaring it to be void if the insured "shall engage in the military or naval service in time of war." Although not plain from the opinion, it appears that the policy also contained an exclusion clause relieving the insurer of liability if death resulted "from service in war." The court held the insurer liable apparently on the theory that the insured's death did not result from his war service.
Three cases were cited by the Illinois court, to which we shall now refer inasmuch as they are so strongly relied upon here. Such cases are Kelly v. Fidelity Mutual Life Ins. Co., 169 Wis. 274, 172 N.W. 152, 4 A.L.R. 845; Redd v. American Central Life Ins. Co., 200 Mo.App. 383, 207 S.W. 74, and Malone v. State Life Ins. Co., 202 Mo.App. 499, 213 S.W. 877. The action in the Kelly case was upon a single indemnity policy with a provision exempting the insurer from liability if death resulted "as a result, directly or indirectly, of engaging in such service or work [military or naval service]." [169 Wis. 274, 172 N.W. 153] The insured was accidentally killed in France during the first World War while supervising the construction of sawmills. In the discharge of such duties he was killed while riding a motorcycle, traveling from one sawmill to another. The insurer was held liable on the theory that the accident occurred under circumstances "which were not in any way peculiar to the military service." The court emphasizes that one in civilian life might well have met with the same character of misfortune.
*856 The Redd case was also an action upon a single indemnity policy. Under the application the policy was void upon "Active service in the Army," and also exempted the insurer from liability "In case of death from service in war." The insured died from pneumonia at a training camp in Kansas. In sustaining the insurer's liability the court held that the insured at the time of his death was not engaged in "active" military service. In other words, the court drew a distinction between service in the army and "active" service therein.
In the Malone case [202 Mo.App. 499, 213 S.W. 880], the insurer was relieved of liability in case "the insured shall engage in any military or naval service in time of war * * * in event of the death of the insured * * * as a result of such service." The insured was killed while stationed at Jefferson Barracks, Missouri, by "accidental gunshot wound at the hands of a fellow soldier." The court in sustaining liability held that military service alone was not sufficient to relieve the insurer of liability and that there was nothing in the record to show that the insured's death was the "result of his military service."
All these cases, so we think, are distinguishable from the instant case both upon the language of the exclusion clause and the facts responsible for death. It may be conceded, so we think, that a plausible argument can be made that death resulting from pneumonia, accidental shooting and perhaps from riding a motorcycle even though in performance of a military duty was not the result of military service for the reason that death resulting under such circumstances is as likely to happen to a civilian as to one in military service. Thus it is pertinent to note that liability in all these cases is predicated upon the theory that the injury was not the result of war or military service. In other words, the injury was as likely to have occurred in non-military service. This is in marked contrast to the instant situation where notwithstanding the injury was sustained as a result of military service it is contended that such injury is not excluded because it did not occur in actual combat.
Finally, we refer to Johnson v. Mutual Life Ins. Co. of New York, 154 Ga. 653, 115 S.E. 14, 15, a case now much relied upon by plaintiff. This was an action upon a double indemnity policy which excluded liability "in the event of the insured's death as the result of military or naval service in time of war," and also "if such death be caused directly or indirectly, wholly or partly, by * * * war, or any act incident thereto." It will be noted the latter phrase is similar to that of the instant case. The insured, a few days after the policy was issued and while in the military service, was being transported with other troops from one training camp to another. While enroute he had his head projecting from a window and was struck and killed. The court pointed out that the policy did not relieve the insurer of liability merely because death resulted in the service but, as in the other cases to which we have referred, predicated its holding of liability upon the theory that the insured's death was not the result of his military service and was not caused by war or an act incident thereto. Again the court emphasizes that it was an accident which might befall soldier and civilian alike. The court also points out, "It was not shown that he was even being transported to the scene of any war," and indicates that such proof would have shown that death resulted as "an incident to war."
The provisions of an insurance contract must be understood and accepted in their plain, ordinary and popular sense. Bergholm, et al. v. Peoria Life Ins. Co. of Peoria, Ill., 284 U.S. 489, 492, 52 S. Ct. 230, 76 L. Ed. 416. See also Williams v. Union Central Life Ins. Co., 291 U.S. 170, 180, 54 S. Ct. 348, 78 L. Ed. 711, 92 A.L.R. 693. Applying this rule to the instant situation, we think there is no escape from the conclusion that the insured's death resulted from "war or an act incident thereto." To think, as plaintiff would have us do, that war as used and intended by the parties was confined to combat service is to attribute to the word a meaning that is unnatural and unreal. Combat service is only the culmination of the myriad separate and independent acts all of which are an essential part of war. When a person enters the military service of his country which is engaged in war with an enemy country, every *857 act performed in training and preparation for actual combat service under the command of military authority is a necessary and essential part of the war. And we are definitely of the view that a soldier's engagement in such war cannot logically be made to depend upon a situation either in time or distance to the point where bullets are being exchanged with the enemy. Military training, especially in time of war, serves the highly important purpose of preparing the soldier that he may better destroy the enemy, as well as defend himself when he reaches the front line. To say that during this course of preparation he is neither in the war nor performing an "act incident thereto" borders on the preposterous. The millions of men who rendered military service in the recent war both at home and abroad undoubtedly would be shocked and astounded if informed that they were not in the war because they did not reach the ultimate goal of combat service. And the thousands of men who failed to reach the combat zone but who sustained injuries and wounds during the course of their training would likewise be astounded and shocked if informed that they were not engaged in war and that their injuries were not sustained as a result thereof or an "act incident thereto."
Numerous hypothetical injuries have been cited and many others could be conjured to which the exclusion clause might not be applicable. As to some, no doubt, a plausible argument can be made that such is the case. Generally, as shown by the cases, they may be classified as injuries not peculiar to the military service but those equally likely to occur in civilian life. In other words, they are not the result of military service or war. We need not attempt, however, to draw the line between those which are excluded and those which are not, and neither do we need to consider or decide hypothetical or imaginary cases. Our duty is to decide the question presented on the facts of this case and not some other.
The circumstances surrounding the unfortunate accident which befell insured point unerringly to the conclusion that he was engaged in "an act incident to war." The total objective of his military service was to prepare himself and those under his command to aid his country in winning the war. Solely for the accomplishment of this objective he and those under his command were stationed in New Zealand, a place designated for their training. They were engaged in an activity under military command as one of the necessary steps in the conduct of the war. The insured was in New Zealand because of war and his activities were because of war and a part of war. The activities in which he was engaged and which resulted in his death were in no wise common to a civilian. Certainly such activities must have been incident to something. If not war, what was it? As we view the matter, his death was clearly an incident of war. The plain, unambiguous language of the exclusion clause as applied to the facts of the instant situation requires a reversal of the judgment.
The judgment of the District Court is therefore reversed and remanded, with directions to proceed in accordance with the views herein expressed.
MINTON, Circuit Judge (dissenting).
I cannot agree with the Court's opinion in this case. That insurance contracts are to be construed most strongly against the insurance company needs the citation of no authority. I do not think that death resulted in the instant case directly or indirectly "from * * * war or any act incident thereto." I think that the insured met his death as an incident of training for war. It would have been simple enough for the defendant to have added to the limiting clause "or an act incident to training for war." This it did not do. The majority very obligingly supplies it for the defendant, thus expanding the exclusion provision by construction to cover every one in service who is engaged in training.
I quote the majority opinion: "When a person enters the military service of his country which is engaged in war with an enemy country, every act performed in training and preparation for actual combat service under the command of military authority is a necessary and essential part of the war. * * * To say that during this course of preparation he is neither in the war nor performing an `act incident thereto' borders on the preposterous." *858 This position is far more extreme than the defendant claimed on oral argument or in its brief. I quote from the brief:
"* * * the defendant could have written a provision that the Company would not be liable for the double indemnity benefit if a fatal accident resulted directly or indirectly from service in the armed forces in time of peace or in time of war.
"The defendant has never claimed that such were the terms of the double indemnity provisions pertaining to war or an act incident thereto * * *."
When our country is at war, we are all in the war in a broad sense; but we are not all in service. One who has not completed his training can hardly be said to be engaged in war or any incident thereof. Certainly an incident of training for war is not the same thing as an incident of war. The provision of the policy should not be construed to include as incidents of war what are only incidents of training for war, unless we are prepared to say all acts incident to training for war are also incident to war. Such a liberal construction of the policy is unwarranted.
Furthermore, I think that we are bound by the law as declared by any court of the State of Illinois, in the absence of more convincing evidence as to what the law is. Fidelity Union Trust Co., et al., Executors v. Field, 311 U.S. 169, 61 S. Ct. 176, 85 L. Ed. 109.
The law in Illinois is best indicated in Mattes v. Merchants Reserve Life Insurance Co., 221 Ill.App. 648, cited and commented upon by the majority in its opinion. It would indicate to me that the courts of Illinois would sustain liability in the instant case and not follow the Iowa case of Eggena v. New York Life Ins. Co., 236 Iowa 262, 18 N.W.2d 530. The Court in the instant case, commenting upon the Mattes case, said the insurer was held liable "apparently on the theory that the insured's death did not result from his war service." I think the Illinois courts have clearly indicated that all persons in service in time of war and on duty when killed are not to be considered as having met their death as a result of war or war service. It seems to me the courts of Illinois would not go the length of holding that anyone killed while in training in service would be excluded from coverage by the contract under consideration.
I would give the defendant nothing by construction that the plain words of the policy did not spell out. If the provision did not plainly exclude the insured from coverage, I would say he was covered. It seems to me the contract is not so plain, and it requires construction favorable to the defendant, extending the scope of the policy far beyond the ordinary meaning of the words used, to reach the conclusion reached by the Court. The defendant is not entitled to such a construction. To me it seems a strained construction in favor of the defendant to say that an incident of training for war is the equivalent of an incident of war. People jump over cliffs and into hidden dangers in life outside the armed service, and certainly every one in service who is in training is not excluded by the provision in question. I would affirm the judgment of the District Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566643/ | 34 So. 3d 217 (2010)
Mary Lisa YAWT, Peter Michael Yawt and Nancy Jane Yawt, Appellants,
v.
Russell E. CARLISLE, as Trustee of the Peter Yawt Remainder Trust of June 17, 1969, William Webb, as Successor Trustee of the Peter Yawt Revocable Trust dated January 22, 2002, and Sandra Dee Yawt, Appellees.
No. 4D09-1993.
District Court of Appeal of Florida, Fourth District.
May 12, 2010.
*218 Stephen L. Zimmerman of Zimmerman, Zimmerman & Miceli, P.A., Pompano Beach, for appellant.
Stephen M. Carlisle of Stephen M. Carlisle, P.L., Fort Lauderdale, for Appellee-Russell E. Carlisle, and Larry F. Witte of Witte & Craig, P.A., Pompano Beach, for Appellee-William Webb, and Gary L. Rudolf of Rudolf & Hoffman, P.A., Fort Lauderdale for Appellee-Sandra D. Yawt.
TAYLOR, J.
Appellants, beneficiaries of a land trust, appeal a post-judgment order granting appellees' motion to amend the final judgment and approving a new agreement for the sale of trust property. We agree that for the relief sought, appellees were required to file either a new action or supplement pleadings pursuant to Florida Rule of Civil Procedure 1.110(h). We therefore reverse and remand for further proceedings.
This case involves a proposed sale of trust property. The sole trust asset is a trailer park. Appellees, the trustee and one beneficiary (Sandra Dee Yawt), wanted the sale to be approved by the court, while appellants, the other three beneficiaries, opposed the sale. The case began as an action filed by the trustee to terminate the trust and establish and enforce a lien on the property for the payment of fees. Appellee Yawt filed a counterclaim and cross-claim, essentially seeking to have herself appointed as successor trustee and authorized to sell the property. Appellants defaulted as to the main claim filed by the trustee.
On August 11, 2008, the trial court entered an order granting appellees' joint motion for authority to sell the trust's real property. On November 12, 2008, the trial court entered its Final Judgment on Default. It awarded the trustee $150,000 in fees to be paid from the trust upon the sale of the subject property. A lien in that amount was placed on the property. The final judgment approved the trustee's final accounting and authorized the trustee "to complete the sale of the Wilton Manors Property to PGH Holdings, under the purchase and sale agreement authorized by the Court by order dated August 11, 2008."
After the final judgment was entered, the purchaser for the property received *219 the results of its environmental inspection of the property and declined to close under the approved agreement. The trustee and potential purchaser negotiated and entered into a new contract, which significantly reduced the purchase price and extended the closing date. Appellees sought court approval or ratification of the new agreement by filing an unsworn "Petition for Approval of Amended Contract." It alleged, inter alia:
4) In performing due diligence and environmental inspections of the property, it has been discovered that certain negative environmental factors exist which will require that remediation will be performed to bring the property into a state where it can be properly developed.
5) Due to the significant cost of this remediation along with other factors, it has been necessary for the parties to enter into an amended contract, which reduces the purchase price previously approved by the Court. All parties to the original contract have executed the amendment to the contract which is attached as Exhibit "A" to this agreement.
The petition indicated that it was served on appellants by mail on March 31, 2009.
The trial court held a hearing on the petition on April 14, 2009. Appellants were represented by counsel at this hearing. Counsel for appellees argued that appellants, as "defaulted defendants," had no standing unless or until they got relief from their defaults. Counsel for appellants, Stephen Zimmerman, argued that the final judgment did not reserve jurisdiction for the court to approve a new agreement; appellees thus needed to file a new action, or at a minimum, supplemental pleadings, with service on appellants, and afford appellants an opportunity for discovery and an evidentiary hearing on the relief they sought. He argued as follows:
MR. ZIMMERMAN: ... the default was disposed of pursuant to the final judgment. The petitioning parties are now asking for additional relief, something that was not asked for in the complaint and was not with the judgment and therefore the default if it existed and if it was entered properly cannot prevent our clients from asserting their position in this case because they're not in default of the current proceeding.
The current proceeding that's before the Court right now was initiated by a motion in a case that's already closed and then by only a couple of days notice without even a chance to respond. We're not even having an evidentiary hearing, we're just having attorneys argue about this, so it's entirely inappropriate for the Court to dispose of this matter in a summary way like this without an evidentiary hearing, without a new case being filed, without a pleading.
THE COURT: What would be the purpose of an evidentiary hearing, what are we going to establish?
MR. ZIMMERMAN: Establish whether this is a fair price for this property. I mean, the Court is just relying upon attorneys coming in here and talking. We think this is not a fair price for this property....
Over appellants' objection, the trial court entered an order granting the petition for approval of the amended contract.
Because this appeal solely concerns issues of law, our review is de novo. See Baker & Hostetler, LLP v. Swearingen, 998 So. 2d 1158, 1161 (Fla. 5th DCA 2008). Appellants rely upon the provisions in Florida Rule of Civil Procedure 1.110(h) for their argument that appellees needed to file subsequent or supplemental pleadings for the relief they sought. This rule provides as follows:
*220 When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment shall be designated a supplemental complaint or petition. The action shall then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process. This subdivision shall not apply to proceedings that may be initiated by motion under these rules.
Fla. R. Civ. P. 1.110(h).
The Committee Note to this rule states, in pertinent part:
Subdivision (h) is added to cover a situation usually arising in divorce judgment modifications, supplementary declaratory relief actions, or trust supervision.... The last sentence exempts post judgment motions under rules 1.480(c), 1.530, and 1.540, and similar proceedings from its purview.
Fla. R. Civ. P. 1.110(h), Committee Note, 1971 Amendment.
Appellants argue that appellees failed to comply with this statute and that the trial court erred in granting relief based on their mere filing of a petition. They sufficiently preserved this issue for appeal, as they similarly argued below that the case was not procedurally ripe because appellees did not file a new pleading or afford them an opportunity for discovery and an evidentiary hearing.
Appellees argue that appellants should not be allowed to participate in this case since they did not move to have their defaults set aside. In so arguing, they rely on the general principle that a default terminates the defending party's right to further defend, except to contest the amount of unliquidated damages. See Donohue v. Brightman, 939 So. 2d 1162, 1164 (Fla. 4th DCA 2006).
However, as we explained in Board of Regents v. Stinson-Head, Inc., 504 So. 2d 1374, 1375 (Fla. 4th DCA 1987), a party who obtains a default judgment is only entitled to the relief sought in its complaint and any further relief must be sought by application and notice to the defendant. In that case, the plaintiff filed a declaratory judgment action. Id. at 1374. After the defendant defaulted, the trial court entered a default final judgment which exceeded the scope of the original pleadings. Id. at 1375. We reversed, quoting Trawick's discussion of defaults:
The party seeking affirmative relief may not be granted relief that is not supported by the pleadings or by substantive law applicable to the pleadings. A party in default may rely on these limitations. If the party seeking affirmative relief wants to assert a new additional claim, it must be served on the party in default in the same manner as the initial pleading and he must be given an opportunity to defend against the claim. The effect of the admissions made by the entry of a default is for purposes of the pending action only.
Id. (quoting H. Trawick, Trawick's Florida Practice and Procedure § 25-4 (1986 ed.)) (emphasis omitted). See also Freeman v. Freeman, 447 So. 2d 963, 964 (Fla. 1st DCA 1984).
Because appellees have sought different relief than that originally pled, they were required to re-serve appellants in the same manner as they did originally and give them a new opportunity to respond, unfettered by the original default. The defaults were moot once the requested relief changed, i.e., approval of a different contract. Contrary to appellees' contention, the reservation in the final judgment *221 to enforce the lien was not broad enough to encompass the relief sought herein.
Reversed and Remanded.
STEVENSON and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566654/ | 440 S.W.2d 691 (1969)
CITY OF HOUSTON, Appellant,
v.
PLANTATION LAND COMPANY, Appellee.
No. 227.
Court of Civil Appeals of Texas, Houston (14th Dist.).
March 5, 1969.
Rehearing Denied April 9, 1969.
*693 Wm. A. Olson, City Atty. Clifton E. Speir, Fred Spence, Senior Asst. City Attys. Houston, for appellant.
Will Sears, David Beale, Sears & Burns, Virgil Childress, Childress, Port & Crady, Houston, for appellee.
TUNKS, Chief Justice.
On September 5, 1968, the City of Houston filed a Statement in Condemnation with the Judge of the County Civil Court at Law No. 1 of Harris County, Texas. The property sought to be acquired by such condemnation was a fill easement to furnish lateral support to a street. The owners of the land in question are Plantation Land Company, a corporation, and Mrs. Oledia M. Hodges. The proceeding so filed was given the identification "Administrative No. 1759." Special commissioners were appointed and sworn, a hearing set for October 24, 1968 and the owners were given notice.
On October 23, 1968, the owners filed a separate suit in the County Civil Court at Law No. 1 of Harris County designating the City of Houston and the appointed commissioners defendants. By this suit the owners sought a temporary and permanent injunction to prevent the defendants from proceeding with the condemnation of, and taking possession of, their property under the proceedings identified as Administrative No. 1759. The basis upon which the owners sought such injunctive relief was an allegation that the City had not, in good faith, attempted to agree with them on the value of the land and the damages that would result from the taking. After a hearing the trial court granted the owners' petition for temporary injunction. The City has appealed.
The Harris County Civil Court at Law No. 1 is a legislative court. It is given jurisdiction over matters of eminent domain. Article 1970-110d, Vernon's Ann. Tex.Civ.St. That is to say, controversies in eminent domain are within the scope of the judicial power which it is given by the statute. The court, however, may not exercise that judicial power until its jurisdiction is invoked in the manner required by law. State v. Olsen, (Tex.Sup.Ct.), 360 S.W.2d 398.
In addition to the judicial power of the Harris County Civil Court at Law No. 1, it is, by the above cited statute, given "administrative and ministerial jurisdiction" in matters of eminent domain. This administrative jurisdiction is invoked by the filing, by a condemnor having power of eminent domain, of a petition for condemnation in proper form and the service of notice. City of Houston v. Kunze, 153 Tex. 42, 262 S.W.2d 947. Article 3264, V.A.T.S. The judicial power of the court in eminent domain is invoked by the timely filing of objection to the award of the special commissioners. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935.
The question with which we are presented by this appeal is: May the county court try the issue of good faith negotiation in a separate suit for injunction filed by the owners, or must that issue be tried when the county court's judicial jurisdiction is invoked by the filing of an objection to the Commissioners' award?
The City of Houston, in its statement of condemnation, recited all of the facts necessary to invoke the administrative condemnation jurisdiction of the trial court, including a recitation that it had been unable to agree with the owners as to value and damages. The sufficiency of the statement of condemnation, itself, is not questioned. The owners' petition for injunction is based solely on the allegations that the City had not negotiated in good faith before filing its statement.
Good faith negotiation by the condemnor with the land owner is a prerequisite *694 to the condemnor's exercise of its power of eminent domain. On the trial of the case a finding on sufficient evidence that the condemnor has not so negotiated will defeat its right to acquire the property. Lapsley v. State, Tex.Civ.App., 405 S.W.2d 406, writ ref., n.r.e.
Article 3266, V.A.T.S., at Sec. 6, provides that a party dissatisfied with the commissioners' award may file objections with the judge and "thereupon" after service, "the cause shall be tried and determined as in other civil causes in the county court." Such language is suggestive of the conclusion that the court's jurisdiction to try the issue of good faith negotiation, one of the issues of the civil cause, is invoked by the filing of the objection to the award.
In Pearson v. State, supra, at p. 937, the Court, after quoting sections 6 and 7 of Art. 3266, said, "The jurisdiction of the court over such matters is special and depends upon the provisions of Art. 3266 quoted above * * *."
The cause of Rabb v. LaFeria Mut. Canal Co., 62 Tex. Civ. App. 24, 130 S.W. 916, err. ref., was an appeal from an order dissolving a temporary injunction in the district court. Rabb, claiming to be the owner of a tract of land, filed a trespass to try title suit against the canal company in the district court. The canal company then filed a condemnation proceeding in the county court. Special commissioners were appointed, held a hearing and made an award to which objection was filed. The canal company then moved the district court to dissolve a temporary injunction previously granted preventing its entering the property. Rabb, by supplemental petition filed in the district court, alleged that the injunction should not be dissolved because of the invalidity of the condemnation proceeding for the reason, among others, "of the absence of the fact * * * that condemnor and the landowner had been unable to agree on the damages." The district court dissolved the injunction in part and the owner appealed. The Court of Civil Appeals affirmed. At p. 918, the Court said:
"* * * It is correctly stated in the brief of appellant that, under the statute, neither the county judge, upon the filing of the statement with him, nor the commissioners, upon the hearing with regard to the damages, can inquire into the truth of the facts upon which this jurisdiction is invoked, but that this cannot be done until the hearing in the county court of the appeal from the award of the commissioners. This appeal is now pending and is yet to be heard, so that, up to the time the motion to dissolve the injunction was heard in the district court, the condemnation proceedings were, as found by the district judge, in all respects legal and regular."
In City of Dallas v. Crawford, Tex.Civ. App., 222 S.W. 305, writ dismd., in discussing whether negotiation as to value and damages was necessary before filing a statement of condemnation under the then effective statute, Art. 6506, Revised Civil Statutes of 1911, the Court said:
"* * * It has been held that neither the county judge nor the commissioners appointed to assess damages can inquire into the truth of the statements contained in the written application. Such inquiry would be proper only upon a hearing in the county court on appeal from the commissioners."
It is true that at the time of the decision in the Rabb case and the Crawford case, different statutes with reference to procedure in eminent domain were in effect, but there was no substantial difference, relevant to the question here involved, between those statutes and the ones now in effect.
In White River Municipal Water District v. Walker, Tex.Civ.App., 370 S.W.2d 945, no writ hist., the Water District filed a condemnation proceeding in the county court. The commissioners hearing was had and the damages awarded were deposited *695 with the county clerk. The owners filed objections. The owners then filed suit in the district court alleging that the condemnation was invalid because the district was attempting to take more land and a greater interest than was necessary to carry out the purpose for which it was created. The trial court granted a temporary injunction. The Court of Civil Appeals reversed and dissolved the injunction. The Court said:
"It is undisputed the condemnation proceedings were regular and that the statutory procedural steps were properly carried out. It is therefore apparent that the condemnation petition and the subsequent procedural steps taken were sufficient to invoke the jurisdiction of the County Court of Crosby County to hear and determine the issue of condemnation, unless the condemnation proceedings were in fact void * * * The questions presented here are proper matters to be litigated in the pending condemnation proceeding." (Emphasis added).
By the enactment of the eminent domain statutes, the legislature had established an expeditious procedure whereby possession of property may quickly be had for its application to public use. It would be inconsistent with the public policy so expressed in those statutes to permit the owner to delay the condemnor's right to take possession of property by the trial, in another judicial proceeding, of one of the very issues for the trial of which those statutes provide a procedure.
We hold that the trial court erred in granting the temporary injunction because its jurisdiction to try the issue of good faith negotiation was not properly invoked by the landowners' filing of their suit for temporary injunction.
The judgment of the trial court is reversed and the temporary injunction ordered by it is dissolved.
On Motions for Rehearing
Each party in this case has filed a motion for rehearing. The appellant, City of Houston, in its motion has asked that we reform the judgment of this Court so as to render judgment in its behalf on the bond posted by appellee as a condition to the granting of the temporary injunction in its favor.
The trial court required the appellee, who was plaintiff there to post a bond in the amount of $1,000 as a condition to the temporary injunction which we have dissolved. The appellant, in the prayer in its brief, asked that we not only dissolve the temporary injunction, but also that we render judgment in its favor for the face amount of the bond. That request was based upon the second paragraph of Rule 684, Texas Rules of Civil Procedure which paragraph is in the following language:
"Where the temporary restraining order or temporary injunction is against the State, a municipality, a State agency, or a subdivision of the State in its governmental capacity, and is such that the State, municipality, State agency, or subdivision of the State in its governmental capacity, has no pecuniary interest in the suit and no monetary damages can be shown, the bond shall be allowed in the sum fixed by the judge, and the liability of the applicant shall be for its face amount if the restraining order or temporary injunction shall be dissolved in whole or in part. The discretion of the trial court in fixing the amount of the bond shall be subject to review. Provided that under equitable circumstances and for good cause shown by affidavit or otherwise the court rendering judgment on the bond may allow recovery for less than its full face amount, the action of the court to be subject to review."
The temporary injunction granted in this case was one from which the City may have sustained monetary damages which can be shown. In the usual situation the purpose of requiring a bond as a condition *696 to the granting of a temporary injunction is to secure the payment to the party against whom the injunction is issued, the amount of the monetary damages which it sustains as a result of the injunction, and costs, in the event the injunction is subsequently held to be wrongfully issued and is dissolved. Bowlen v. Bowlen, Tex.Civ. App., 1 S.W.2d 355, no writ hist. The determination of the amount of those damages, if any, must be made by a proper procedure in a trial court.
The apparent purpose of the second paragraph of Rule 684 is to require the payment of a fixed amount, in the nature of a penalty, only in those situations in which a governmental entity is wrongfully enjoined, but sustains no monetary damage. Such a situation might exist where a city was enjoined from issuing a permit or from enforcing an ordinance.
The record before us does not show whether the City of Houston has or has not sustained any monetary damage because of the issuance of the temporary injunction which we have dissolved. If the City has not sustained such damages, we are of the opinion that the appellee and its surety should not necessarily be held liable for the face amount of the bond. It is obvious that a trial judge would, in determining the amount of the bond given to secure monetary damages, take into consideration an entirely different set of facts than those which he would consider in fixing the amount of a bond payable, in the event of dissolution of the injunction, as a penalty. Rule 684, to provide for this situation, permits the judge rendering the judgment on the bond to render judgment for less than the face amount of the bond if equitable circumstances suggest such action. Thus, the determination of the amount, if any, for which appellee and its surety should be held liable upon its bond is a matter for determination by a trial court and is not a matter for original proceeding in this Court. The trial court's determination of this matter is, by the language of the rule itself, made subject to review.
The appellee's motion for rehearing relates to matters of which we have disposed in our original opinion.
Both motions for rehearing are overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566668/ | 161 F.2d 30 (1947)
LOWREY
v.
UNITED STATES.
No. 13444.
Circuit Court of Appeals, Eighth Circuit.
April 28, 1947.
Writ of Certiorari Denied June 16, 1947.
*31 C. Floyd Huff, Jr., of Hot Springs, Ark., and Drew Bowers, of Pocahontas, Ark., for appellant.
R. S. Wilson, U. S. Atty., of Van Buren, Ark., and David R. Boatright, Asst. U. S. Atty., of Fort Smith, Ark. (Charles A. Beasley, Jr., Asst. U. S. Atty., of Fort Smith, Ark., on the brief), for appellee.
Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.
Writ of Certiorari Denied June 16, 1947. See 67 S. Ct. 1737.
JOHNSEN, Circuit Judge.
Appellant was convicted, on a jury-waived trial, (1) of possessing 91 gallons of distilled spirits in containers (8 ten-gallon kegs and 11 one-gallon jugs) to which no stamps had been affixed, "denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits," as required by 26 U.S.C.A.Int. Rev.Code, § 2803, and (2) of concealing distilled spirits (the 91 gallons of whisky) removed from an unknown distillery, without payment of liquor taxes, to a place other than an internal-revenue bonded warehouse, in violation of 26 U.S.C.A.Int. Rev.Code, § 2913. He was given a general sentence of three years in prison and a fine of $1,000.
The principal contention urged for reversal is that the trial court erred in denying appellant's motion, made before trial or hearing, to quash the search warrant, under which the contraband liquor *32 was seized, and to suppress the evidence thus obtained, which was used on the trial to convict. The basis of the contention is that the affidavit was insufficient to permit issuance of the search warrant, because it did not contain a particular or special description of the property which it was desired to seize.
The affidavit was one executed by an Alcohol Tax Unit Investigator named Cummings. It was on a printed form bearing the caption "Affidavit of Search Warrant (Standard Form)." The form contained a recitation, "That the facts tending to establish the grounds of this application and the probable cause of affiant's believing that such facts exist are as follows:" Here was inserted a statement by Cummings that on the day preceding the execution of the affidavit he had watched a taxicab containing two negroes drive up to appellant's home; that he observed one of the negroes carry from the house a paper carton and place it in the trunk compartment of the taxicab; that the negroes immediately thereafter got back in the taxicab and drove away; that he and another Alcohol Tax Unit Investigator named Gibson kept the taxicab under constant observation until they stopped it and searched it; that in its trunk compartment they found a paper carton, in which there were 6 one-gallon jugs "containing non-tax paid distilled spirits," which was the only carton in the taxicab; and that the taxicab had not made any stop from the time it left appellant's home until it was halted by Cummings and Gibson and searched.
The form contained another recitation, "That he [the affiant] has good reason to believe and does believe that in and upon certain premises [here was inserted a description showing the location of appellant's home and covering the house, the garage and the other outbuildings on the premises] there have been and now are located and concealed certain property used as the means of committing a felony in violation of the Statutes of the United States, to-wit:" the space following this recitation being left blank in the affidavit. The form also contained a general prayer, "that a Search Warrant may issue authorizing a search of the aforesaid premises in the manner provided by law."
The affidavit thus set out as its principal foundational fact that 6 one-gallon jugs of "non-tax paid distilled spirits" had been seen being carried from appellant's house and taken away by two negroes in a taxicab. It further stated that Cummings believed that the house and outbuildings contained "certain property used as the means of committing a felony in violation of the Statutes of the United States." It requested a search warrant authorizing a search of the premises in the manner provided by law. The possession of unstamped distilled spirits and the concealment of non-tax paid distilled spirits, such as the affidavit showed had been located on the premises, constituted felonies under 26 U.S.C.A.Int.Rev. Code, §§ 2803, 2913. The only import which the contents of the affidavit reasonably could have in the situation, it seems to us, was to indicate that Cummings believed (and the basis for his belief) that there were non-tax paid distilled spirits on appellant's premises and that this was what he desired to search for and seize. The warrant issued by the commissioner on the affidavit authorized a search of the premises for "non tax paid distilled spirits" possessed and concealed in violation of "Section 2803 and 2913 of the Internal Revenue Code."
Appellant does not contend that the search warrant itself was insufficient in either form or content. His argument, as heretofore indicated, simply is that Cummings did not specifically or directly state in the affidavit that what he desired to search for was "non-tax paid distilled spirits," and that the affidavit therefore must be held to be insufficient. He says that the Fourth Amendment expressly requires that the affidavit set out a particular or special description of the property to be seized.
The second clause of the Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Italics ours.) From the subject matter of the provision, the punctuation and the *33 context, the italicized language would appear to be a prescription for the search warrant, rather than one specifically or directly for the affidavit, as appellant contends. Cf. United States v. Wroblewski, 7 Cir., 105 F.2d 444, 446. The only part of the provision expressly dealing with the affidavit is the preceding phrase, "but upon probable cause, supported by Oath or affirmation."
It cannot therefore be said that the Fourth Amendment in terms has made any prescription for the form or content of the affidavit for a search warrant other than that the affidavit or affidavits must show probable cause for issuance of the warrant. And, other than that the affidavit must establish the grounds for issuing the warrant, there also is no express prescription with respect to it in Rule 41, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, which now governs the issuance of search warrants (except in the case of some inconsistent statute "regulating search, seizure and the issuance * * * of search warrants in circumstances for which special provision is made.") Rule 41(c) provides: "A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched."[1]
Probable cause for the issuance of a search warrant, on the grounds authorized in Rule 41(b), is then the only prescription for the affidavit under the Fourth Amendment and the Rules of Criminal Procedure. The lack of prescription for any particular or special statement in the affidavit would seem reasonably, as in the case of a pleading, to have significance on the formality required in setting out the information to show probable cause. Of course, probable cause for the issuance of a search warrant necessarily implies, not simply that there are reasonable grounds to believe that some violation of law exists, but that there is a violation in respect to some property located on some premises or on some person each of which can be unmistakably identified, so as to be capable of being particularly described in the warrant, from the information in the affidavit. Cf. Dumbra v. United States, 268 U.S. 435, 441, 45 S. Ct. 546, 69 L. Ed. 1032.
But in order to make the property to be seized or the place or person to be searched identifiable as a basis of probable cause and warrant information, it can hardly soundly be argued that there necessarily must be a special sentence of separate or repetitive description in the affidavit. In testing the sufficiency of the affidavit, it is entitled to be read as a whole. It would therefore seem to be enough that the affidavit contain within its four corners the information necessary to justify and to enable the search warrant to be issued, and that its statements and recitations unequivocally establish, whether directly or by inescapable import, the significance and relationship of the information shown.
In the present case, Cummings's statement that he had seen 6 one-gallon jugs of "non-tax paid distilled spirits" being carried from appellant's house and taken away by two negroes in a taxicab, with the further recitation that Cummings believed that the house and outbuildings contained "certain property used as the means of committing a felony in violation of the Statutes of the United States", and with the request for the issuance of a search warrant authorizing a search of the premises in the manner provided by law, could not possibly in our opinion convey any other implication or understanding to anyone reading *34 the affidavit than that a search warrant was being sought in order to search appellant's premises for what Cummings had described in the affidavit as "non-tax paid distilled spirits."
As a matter of fact, it is not contended here that the affidavit could possibly have any other import. The argument merely is that such an inescapable import could not properly be the basis for the issuance of a search warrant, but that it was necessary for the affidavit to have stated in specific terms that what Cummings had described in it as "non-tax paid distilled spirits" was in fact what he sought the warrant to search for and seize.
If any other import reasonably had been possible from the affidavit than that the property for which the search warrant was being requested was "non-tax paid distilled spirits," as described in the affidavit, the affidavit, of course, would not have been sufficient. But that, as we have said, is not the situation. Or, if the commissioner had had to go outside the affidavit in order to complete the warrant, the affidavit equally would have been insufficient. Cf. Poldo v. United States, 9 Cir., 55 F.2d 866, 868. That, again, is not the present situation.
And so it seems to us, as heretofore indicated, that, on the facts and recitations of the affidavit and their inescapable import, the trial court cannot be said to have erred in denying appellant's motion to quash and suppress because the affidavit did not contain a direct or special statement that the property for which the search warrant was sought was "non-tax paid distilled spirits," which term or description was contained in the affidavit in stating probable cause.
The second contention for reversal is that the trial court erred also in refusing to quash the warrant and suppress the evidence on the additional ground in appellant's motion that "the allegations as to probable cause as set out in the Affidavit * * * were not true for the reason that the Affiant, Cummings, could not have made the observation of the package being placed in the taxicab of the Negroes as set out in his Affidavit and at the same time have kept the said taxicab under constant observation during the time as alleged by the Affiant in his Affidavit." The court allowed the parties to introduce evidence on this question and at the conclusion of the testimony made a finding that "Cummings did in fact see the events which he related in his affidavit" and that "the statements contained in Cummings's affidavit were true and correct."
Assuming for the sake of the contention that, but without here considering whether, the question was one on which it was proper to receive testimony, appellant is not entitled to have the finding reviewed on this appeal. The question of fact presented was resolved on conflicting and substantial evidence, and such evidence may not be re-weighed by an appellate court. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c; Kincade v. Mikles, 8 Cir., 144 F.2d 784, 787; Wilson v. Shuman, 8 Cir., 140 F.2d 644, 647.
Appellant's third contention is that the trial court further erred in refusing to sustain appellant's motion to quash and suppress because the facts set out in the affidavit could not constitute probable cause for concluding that there were "non-tax paid distilled spirits" upon appellant's premises. We think the commissioner could legitimately conclude that there were reasonable grounds to believe that appellant's house contained "non-tax paid distilled spirits" from the facts set out in Cummings's affidavit that a taxicab drove up to the house, which was located about 2¼ miles out in the country; that the two negro occupants of the taxicab came away from the house with 6 one-gallon jugs; and that the jugs were found to contain "non-tax paid distilled spirits" when the taxicab was stopped and searched after it left appellant's premises and had returned to the highway.
Substantially similar facts were held to constitute probable cause for the issuance of a warrant to search for "nontax paid [distilled spirits]" in Beal v. United States, 65 App.D.C. 10, 79 F.2d 135, 136. In that case, a negro was seen coming from the defendant's premises with a sack and a box, which he dropped upon discovering the presence of the officer, and which on examination were found to contain 18 one-half gallon jugs of "nontax paid whisky". *35 Cf. also Herson v. United States, 65 App. D.C. 86, 80 F.2d 529.
There is, of course, no formula for testing the question of reasonableness in relation to probable cause, other than that, "if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant." Dumbra v. United States, supra, 268 U.S. at page 441, 45 S.Ct. at page 549, 69 L. Ed. 1032. "Each case [necessarily] is to be decided on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 158, 75 L. Ed. 374.
Appellant's final contention is that the trial court erred in denying his motion to dismiss each of the counts of the indictment on the ground that neither of them sufficiently showed the locality where the offense charged in it was committed. Count I laid the venue of its offense as having occurred "in the Hot Springs Division of the Western District of Arkansas, and within the jurisdiction of this Court". The counties of the State included in the Hot Springs Division of the Western District of Arkansas were fixed by 54 Stat. 302, 28 U.S.C.A. § 144. Count II similarly laid the venue of the offense there charged as having occurred in the Hot Springs Division of the Western District of Arkansas, but it further added, in connection with its charge that the concealed "non-tax paid distilled spirits" had been removed from some unknown distillery to a place other than an internal-revenue bonded warehouse, that appellant's residence was "located at about two and one-fourth miles southeast of Hot Springs, Arkansas, in Garland County."
As to Count II, there is no possible basis for arguing that the venue of the charged offense is not sufficiently shown. And as to Count I, we think the charge that the crime was committed "in the Hot Springs Division of the Western District of Arkansas" was alone sufficient to make the indictment good against a motion to dismiss for insufficient statement of venue.
Failure of an indictment to state the county of the state where the offense was committed does not make the indictment fatally defective under the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687. Against a motion to dismiss, it is sufficient that the indictment show that the offense was committed within the territorial jurisdiction of the court before which the indictment was returned. That this is the spirit and intent of the Criminal Rules is indicated by the Appendix of Forms,[2] which have been given an official illustrative status by Rule 58. Such precision and detail as were held necessary to charge an offense in Jarl v. United States, 8 Cir., 19 F.2d 891; Corcoran v. United States, 8 Cir., 19 F.2d 901; Partson v. United States, 8 Cir., 20 F.2d 127; Turk v. United States, 8 Cir., 20 F.2d 129, upon which appellant relies, are no longer required. "The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged", and "The court for cause may direct the filing of a bill of particulars." Rule 7(c) and (f).
The judgment is affirmed.
NOTES
[1] The Espionage Act of June 15, 1917, 40 Stat. 228, 18 U.S.C.A. § 611 et seq., had contained a provision, 18 U.S.C.A. § 613, that no search warrant should be issued under its provisions, "but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched." Under this provision, the property to be searched for was apparently required to be particularly or specially described in the affidavit. Cf. Weinberg v. United States, 2 Cir., 126 F.2d 1004, 1006, 1007. But Rule 41, Federal Rules of Criminal Procedure, has expressly been made to supersede this provision of the Espionage Act. See Rule 41(g).
[2] Thus, "Form 5. Indictment for Internal Revenue Violation" provides:
"In the District Court of the United States for the .......................... District of ..................... Division
United States of America) | No. ........
v. > (26 U.S.C.A.
John Doe | § 2833)
"The grand jury charges:
"On or about the ...... day of ...., 19.., in the ...... District of ......., John Doe carried on the business of a distiller without having given bond as required by law.
"A True Bill.
...............
"Foreman.
.............................
"United States Attorney." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566682/ | 161 F.2d 102 (1947)
HOOPER-HOLMES BUREAU, Inc.,
v.
BUNN.
No. 11689.
Circuit Court of Appeals, Fifth Circuit.
April 25, 1947.
*103 Bart A. Riley and A. C. Dressler, both of Miami, Fla., for appellant.
Dewey Knight, of Miami, Fla., for appellee.
Before SIBLEY, WALLER, and LEE, Circuit Judges.
LEE, Circuit Judge.
Appellee, plaintiff below, filed suit against appellant, defendant below, in a Florida State court for slander, based upon three mercantile reports made by the defendant on plaintiff. The defendant removed the cause to the court below. The amended complaint alleged that the defendant had maliciously published libels that brought plaintiff into occupational disrepute. On this appeal the defendant relies upon the defense of qualified privilege rather than the defense of the truth of the published matter. The court denied defendant's motion for a directed verdict both at the close of plaintiff's case and at the close of defendant's case. The jury rendered a verdict of $2,500. This appeal is from a judgment entered thereon.
The defendant is engaged in the business of making reports to insurance companies and prospective employers on the financial standing, health, character, and reputation of applicants for insurance, credit, or employment, and upon claimants under insurance policies. The defendant makes reports pursuant to a specific request from a client previously designated by its national office and delivers the report in confidence to the client. The defendant never publishes reports in any other manner.
In April, 1937, after a dispute had arisen between plaintiff and the Miami manager, plaintiff severed his employment with the Peninsular Life Insurance Company as a salesman of industrial insurance. Plaintiff testified that after his "resignation" the Prudential Life Insurance Company, the Gulf Life Insurance Company, and other companies in Miami refused him employment. He took employment outside the insurance field at less remunerative tasks. In 1938 he went to work for one I. D. Padorr as a salesman and solicitor in his photographic business.
In 1940 he applied to the Maccabees, a fraternal order writing insurance. After this application, Johnson, the Miami manager of the Maccabees, showed him a portion of a report issued by the defendant. This report recited that the plaintiff was discharged by the Peninsular Insurance Company for dishonesty. After Bunn denied the truth thereof, Johnson, upon his own recommendation, obtained employment of Bunn with the Maccabees. One Cohen, employed as an inspector in the office of the defendant in Miami had prepared this and the two subsequent reports. Shortly afterwards, Bunn tried to prove to Cohen the falsity of this first report, but Cohen replied that, because plaintiff had struck Padorr, a friend of Cohen, he would fix it so that the plaintiff would never be able to get a job so long as he lived in Miami.
On April 11, 1940, the Maccabees received a second report from the defendant, requested for the purpose of permitting the plaintiff to obtain insurance from the Maccabees. This report, in addition to the statement that the Peninsular had discharged plaintiff for dishonesty, stated that Padorr *104 had discharged the plaintiff for unsatisfactory service. In April, 1940, plaintiff applied to the Guaranty Life Insurance Company, at its office in Miami, for employment. The Guaranty Life requested from defendant a report on plaintiff. This report, dated April 26, 1940, and made by Cohen, in addition to the derogatory statements found in the previous two reports, stated that Bunn's services with the Maccabees were not altogether satisfactory. The Guaranty Life refused employment to plaintiff. The reason for its refusal does not appear in the record. After the refusal of Guaranty Life, Cohen told the plaintiff that as long as he applied for a job Cohen would put a bad report against him, and that "we have" instructed Johnson to get rid of him.
These three reports on plaintiff were ordered through the defendant's Miami office. The defendant claims that Cohen was one of five or six inspectors in the Miami office at the time these reports were delivered. The plaintiff contends that Cohen was the only employee of the defendant in the Miami office besides one Clark, the manager.
Cohen himself never sent out the reports directly to the clients but delivered them to Clark. Clark testified that he checked each report for content and clarity before he mailed them to the clients. Clark did not testify that he did anything to check the accuracy of the reports.
Since the jury upon conflicting evidence on the falsity of the reports necessarily found for the plaintiff and the defendant has not attacked the verdict, we may assume the falsity of the reports on this appeal.
The three reports made by the defendant to its two clients, the Maccabees and Guaranty Life, in regard to plaintiff's qualifications for employment and for insurance were privileged communications.[1] Plaintiff to recover for damages caused by defamation in these privileged reports must prove the publication was made from express malice.[2]
As its first point, the defendant argues that the court below erred in refusing its motion for a directed verdict because the evidence was insufficient to show express malice on the part of the defendant. In support of this motion the defendant further argues: that the alleged malice of Cohen, who was not acting within the scope of his employment, cannot be imputed to the employer in the absence of authorization, notice, or ratification. On oral argument before this court the defendant for the first time puts a new twist to this motion: it now claims that, as a matter of law, the personal malice of Cohen cannot be imputed to the defendant irrespective of the question of scope of employment because Cohen's superior rather than Cohen himself read the report and mailed the report. In support of the motion, the defendant at the trial further contended that the only evidence attempting to prove malice on the part of the defendant is the uncorroborated testimony of the plaintiff with respect to alleged conversations with a subordinate employee of the defendant relating to past, closed transactions which were hearsay and should not have been admitted.
A corporation may be liable for libel by its servants.[3] The defamatory statements made by a servant speaking within the scope of his employment but with a bad motive subjects the corporation to liability.[4] The defamatory statements made by a servant only for his own purposes, although made during a transaction in which the servant is acting for the corporation, does not subject the corporation to liability.[5] A servant under a duty to gather information on the wrongful conduct of another person subjects his corporation to liability for *105 malicious statements made in connection with his employment and with a purpose to serve it.[6] An act may be done within the scope of employment although done in part to serve the purpose of the servant.[7]
Discussing the master's responsibility for torts committed by his servant, the Supreme Court of Florida, in Western Union Telegraph Co. v. Michel, 1935, 120 Fla. 511, 163 So. 86, 88, said: "The rule is well settled that the master is responsible for the torts committed by his servant in the scope or range of his employment. He is also liable for those committed in a slight deviation or departure from his business, but when the deviation or departure of the servant amounts to an abandonment of the master's business and the undertaking of an enterprise or mission of his own without the master's consent, knowledge, or approval, and having no relation to the master's business, then the master cannot be held liable for torts so committed. * * *"
The trial court correctly refused to grant defendant's motion for a directed verdict on the first ground urged. Whether Cohen was acting within the scope of his employment and whether his malice may be imputed to his employer in the absence of authorization, notice, or ratification, were jury questions. "A corporation is liable in an action for slander or other tort, although the act may have been ultra vires and foreign to the objects of its creation, and this liability extends to the tortious acts of its servants done in its service, and whether such acts were committed by the servants in the service of the corporation or solely for their own purposes, or whether the corporation authorized or participated in the tortious act are questions of fact for the jury, * * *."[8]
While the court's charge differed from our views of the law of libel, we will not overturn the judgment for that reason because the defendant has abandoned all his objections to that charge in his brief.
Of all the reported cases, Interstate Transit Lines v. Crane, 10 Cir., 1938, 100 F.2d 857, 862, comes nearest to the instant facts.[9] Plaintiff lost his job with the Burlington Transportation Company when a certain surety company refused plaintiff's application for a surety bond on account of previous claims paid by the surety company to the defendant. Gleason, one of defendant's city passenger agents, had reported certain alleged defalcations on the part of the plaintiff, previously employed as a ticket salesman under Gleason, to one Hall, defendant's auditor. Hall, without examining any of the records containing the false accusations, forwarded them to the surety company. The court held that from the failure of Gleason and another employee to investigate the reports, the jury could infer malice. The court said: "In Conrad v. Allis-Chalmers Mfg. Co., 228 Mo.App. 817, 73 S.W.2d 438, it was urged that there was no liability `as to the corporate defendant' as `such defendant neither knew of, authorized, or ratified the act of defendant Voorhees as its agent in writing' the letter. [Page 450.] The appellate court held against said contention as to such corporate defendant's liability as `the act of the defendant was the act of the corporation,' the court saying: `The corporate defendant's liability does not rest upon an express authorization of the particular act in question or upon immediate knowledge or ratification by it of such act, but upon the fact that the defendant Voorhees was acting for it in the conduct of its business within the authorized line of his employment. Under such circumstances, it not only became liable *106 for defendant Voorhees' act, but liable with Voorhees, * * *."
The Interstate Transit Lines v. Crane case effectively dispels the reliance that the defendant on the instant appeal places on the case of Solow v. General Motors Truck Co., 2 Cir., 64 F.2d 105. The Tenth Circuit in Interstate Transit Lines v. Crane said:
"In Solow v. General Motors Truck Co., 2 Cir., 64 F.2d 105, the agent who was guilty of malice was held not to be acting within the scope of his authority.
"In the instant case, Gleason had reason not only to know that the data that he furnished auditor Hall would be passed on to the Surety Company, but also in effect induced the data to be passed on."
Since the testimony of the plaintiff on the statements of Cohen was introduced into evidence to show the malice with which Cohen made his reports rather than to evidence any facts asserted by Cohen, the hearsay rule was inapplicable.[10] The court below correctly refused to grant defendant's motion for a directed verdict on the second reason given.
As its second point the defendant argues on this appeal that "the evidence completely failed to prove that Bunn's refusal of employment by insurance companies was `procured' or `induced' by the Bureau." The defendant who is liable for a libel actionable per se is liable for harm caused thereby to the reputation of the person defamed, or, in the absence of proof of such harm, for the harm which normally results from such defamation.[11] The plaintiff in his complaint alleged that the defendant caused six insurance companies to refuse him employment by falsely reporting to said companies the libelous matters. While the plaintiff testified that six insurance companies refused him employment, the record shows only that the Guaranty Life Insurance Company had seen one of these reports. No evidence exists as to why the Guaranty Life Insurance Company refused him employment, but the jury could have inferred that the disparaging report was the cause of the refusal.
On this appeal the defendant does not contend that the trial court should have permitted it more time to obtain the deposition of Cohen. The record shows that the defendant had already obtained a postponement of the trial for four months to get the deposition of Cohen and that prior to trial it had asked for a further continuance. At the trial, however, its counsel did not press for a further continuance but asked for a charge that absence of testimony of Cohen should not be considered prejudicial to it. While the court so charged, the court said: "The fact is that plaintiff's counsel gave him all the time he was entitled to but he did not get it, so he is in a sweat-box now. He is forced to try this case without him." The granting of a continuance by the trial court is purely a discretionary matter. Since defendant does not now argue that it did not have ample time to get Cohen's testimony, and since the record shows no reason why the defendant did not have ample time to get the testimony, this court should not interfere with the trial court's refusal to grant a further continuance.
The judgment appealed from is affirmed.
SIBLEY, Circuit Judge (dissenting in part).
I think there should be a new trial. We all agree that the three reports on Bunn were privileged communications and privately made, and that there could be no recovery unless they were made both falsely and with actual malice. We agree too that the malice of the employee Cohen will make his corporate employer liable if he acted within the scope of his employment in issuing the false statements. There is no contention that any corporate officer, nor even Clark the Manager of the Miami office who employed Cohen and actually mailed out the reports, knew they were not true or had any ill will towards Bunn. Cohen was a mere investigator, who reported to Clark *107 what he found out about people on whom reports were requested. He was in the army of the United States in Europe when the case was tried, and further delay to get his evidence was denied. The defendant corporation was without evidence as to where Cohen got his information about Bunn, or as to Cohen's state of mind toward Bunn. The only evidence on that is what Bunn said Cohen said; and in my opinion it is very weak and hardly credible, but that was a jury question. I must take it that Cohen had ill-will towards Bunn. Nevertheless justice has missed its mark by the jury giving $2,500 as smart money, or punitive damages, contrary to law.
No actual damages were proven. The first report, made to the Maccabees when Bunn applied to them for employment, did no harm, for he got the employment and held it several years, and as long as he wished. The second report was also to the Maccabees when Bunn applied to them for insurance. He obtained the insurance. The third report was to Guaranty Life Insurance Company when he applied to them for a job. There is no proof at all that the report had anything to do with his not getting it, or that it was a better job than he then had with the Maccabees. There was no broadcasting of the false reports. No one ever saw them except the addressees, save that Bunn himself purloined the first from his employer's desk.
This utter lack of proof of loss of money or general repute did not, however, entitle appellant to a directed verdict, for Bunn could recover something to vindicate his right. But not $2,500 against this personally innocent corporation. The trial centered on Cohen's malice and the effect of it in making a case against the corporation. It had the effect of destroying the privilege of the communications, and rendering the corporation liable for compensatory damages, but did not make it liable for punitive damages, there being no authorization or ratification of Cohen's malicious acts. Cohen alone would be liable for punitive damages. Aetna Life Ins. Co. v. Brewer, 56 App.D.C. 283, 12 F.2d 818, 46 A.L.R. 1499; Lake Shore & M. S. R. Co. v. Prentice, 147 U.S. 101, 13 S. Ct. 261, 37 L. Ed. 97. There is nothing to the contrary in the Florida decisions.
Now the suit expressly claimed compensatory and punitive damages thrice repeated. The judge nowhere in his charge gave any instruction whatever on what damages were recoverable. The jury naturally thought both could be given if Cohen was acting in the scope of his authority. While the appellant made no request for instructions on the point, I think the failure to say anything was a fundamental fault in the charge, which has borne fruit in a verdict not justified by the law and the evidence. "It is the duty of a court, in its relation to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try, by admitting only such evidence as is proper in such issues, and rejecting all else; by instructing them in the rules of law by which that evidence is to be examined and applied; and finally when necessary by setting aside a verdict which is unsupported by evidence or contrary to law;" Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780. Norfolk & Western Ry. Co. v. Holbrook, 235 U.S. 625, 35 S. Ct. 143, 59 L. Ed. 392. "It is the duty of the trial judge of his own motion and without request to correctly instruct the jury as to the proper measure of damages." Burns v. Pennsylvania R. Co., 233 Pa. 304, 82 A. 246, 248, Ann.Cas.1913B, 811; 64 C. J., Trial, § 557. The motion for a new trial ought to have been granted, and discretion was abused in not granting it.
NOTES
[1] Restatement of the Law, Torts, § 595; see Putnal v. Inman, 1918, 76 Fla. 553, 80 So. 316, 3 A.L.R. 1580; Briggs v. Brown, 1908, 55 Fla. 417, 46 So. 325.
[2] Montgomery v. Knox, 1887, 23 Fla. 595, 3 So. 211; Restatement, Torts, § 604; Briggs v. Brown, 1908, 55 Fla. 417, 46 So. 325.
[3] Restatement, Agency, § 247 and comment "b"; see Baker v. Atlantic Coast Line R. Co., 1939, 141 Fla. 184, 192 So. 606.
[4] See Restatement, Agency, § 247, Comment "c"; 14A C.J. 776, § 2848; 19 C.J.S., Corporations, § 1280.
[5] See Restatement, Agency, § 247, comment "c".
[6] Restatement, Agency, § 247, comment "e".
[7] Restatement, Agency, § 236.
[8] Britt v. Howell, 1935, 208 N.C. 519, 181 S.E. 619, 620.
[9] Minter v. Bradstreet, 174 Mo. 444, 73 S.W. 668, Sup.Ct. of Mo., Div.No.2, Feb. 24, 1903, is the nearest case involving a "commercial agency." The holding of that case is not in point because the court found that the managing officers of the defendant either knew or had reason to know of the falsity of the statements reported to them by a reporter who had personal malice toward the plaintiff. In Froslee v. Lund's State Bank of Vining, 1915, 131 Minn. 435, 155 N.W. 619, the Supreme Court of Minnesota has dictum to the effect that ill feeling between the defendant's cashier and plaintiff would evidence malice in the publication of a false financial report on the plaintiff by the defendant.
[10] Wigmore on Evidence, Vol. 6, § 1790, p. 239; Vol. 2 § 396, pp. 349, 350. See Sylvester v. State, 1903, 46 Fla. 166, 35 So. 142.
[11] Briggs v. Brown, 1908, 55 Fla. 417, 46 So. 325; Piplack v. Mueller, 1929, 97 Fla. 440, 121 So. 459; Restatement, Torts, § 621. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566675/ | 34 So. 3d 1248 (2009)
Ex parte ALABAMA PEACE OFFICERS' STANDARDS AND TRAINING COMMISSION and R. Alan Benefield, individually and in his capacity as executive secretary of the Alabama Peace Officers' Standards and Training Commission.
(In re Doby Vines and Joey Vines v. R. Alan Benefield et al.).
1051667.
Supreme Court of Alabama.
September 30, 2009.
*1249 Troy King, atty. gen., and Joseph D. Steadman, deputy atty. gen., of Dodson & Steadman, P.C., Mobile, for petitioners.
Robert D. Drummond, Jr., Fairhope, for respondents.
PARKER, Justice.
The Alabama Peace Officers' Standards and Training Commission ("APOSTC") and its executive secretary, Chief R. Alan Benefield, are defendants in an action brought by brothers Doby Vines and Joey Vines, former part-time employees at Southwest Alabama Police Academy ("SWAPA"). In the trial court, APOSTC and Benefield filed a motion for a summary judgment, asserting that they were immune from liability. The trial court denied the motion. APOSTC and Benefield now petition this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss with prejudice all the claims against them. We grant the petition.
I. Background and Procedural Posture
This case arises from the termination on January 24, 2003, of the Vineses' part-time employment with SWAPA, which resulted from an APOSTC directive authorizing the dismissal of all SWAPA part-time employees. The Vineses filed a complaint in the Montgomery Circuit Court on January 5, 2005, naming as defendants Benefield and Gary Branch, president of Faulkner State *1250 Community College,[1] in their individual and official capacities, and APOSTC. The Vineses sought restoration of their employment, wages, and benefits, and both compensatory and punitive damages from Benefield in his individual capacity, alleging that he and Branch had conspired among themselves to deny the Vineses their employment, wages, and benefits. They also claim that APOSTC did not have the authority to order their dismissal. The claims against Branch were subsequently dismissed. See supra note 1.
On June 9, 2006, APOSTC and Benefield filed a motion for a summary judgment, asserting the defense of immunity. The trial court did not address the issue of immunity when it entered its August 8, 2006, judgment denying their summary-judgment motion. APOSTC and Benefield now seek review of the denial of the motion for a summary judgment.
II. Standard of Review
"`While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.' Ex parte Rizk, 791 So. 2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: `(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala.2001)."
Ex parte Nail, 879 So. 2d 541, 543 (Ala. 2003).
"This case is before us on a petition for the writ of mandamus. The petition cites Ex parte Rizk, 791 So. 2d 911, 912 (Ala.2000), for the proposition that `[w]hile the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.' We confine our interlocutory review to matters germane to the issue of immunity. Matters relevant to the merits of the underlying tort claim, such as issues of duty or causation, are best left to the trial court.... See Ryan v. Hayes, 831 So. 2d 21, 32 (Ala.2002) (recognizing that the defense of immunity should, as a general rule, be determined as a threshold issue, thereby avoiding `development of unnecessarily restricted principles of tort law driven by the need to accommodate principles of State-agent immunity')."
Ex parte Hudson, 866 So. 2d 1115, 1120 (Ala.2003).
III. Analysis
APOSTC and Benefield's immunity defense was presented in the brief in support of the motion for a summary judgment. The order entered by the trial court denying the motion failed to address the immunity issue. The petition for writ of mandamus asks this Court to review whether the trial court erred in denying APOSTC and Benefield's motion for a summary judgment in which they asserted immunity as a defense.
*1251 A. State Immunity
Section 14, Ala. Const.1901, states "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." This Court has ruled that "[a] suit against a State agency, or against State agents in their official capacities, is a suit against the State.... State agents enjoy absolute immunity from suit in their official capacities." Burgoon v. Alabama State Dep't of Human Res., 835 So. 2d 131, 133 (Ala.2002).
1. APOSTC
Section 36-21-41, Ala.Code 1975, creates the Alabama Peace Officers' Standards and Training Commission. It is undisputed that the statutorily created commission is an agency of the State of Alabama. Accordingly, a suit against APOSTC is prohibited as a suit against the State. The trial court, therefore, erred in denying the motion for a summary judgment in favor of APOSTC. Burgoon, 835 So.2d at 133 ("A trial court must dismiss an action against a State agency or against a State agent acting in an official capacity at the earliest opportunity.").
2. Benefield in his official capacity
The Vineses' demands for prospective restoration of employment, wages, and benefits depend upon the official scope of Benefield's authority. In their opposition to Benefield's motion for a summary judgment, the Vineses attached Benefield's affidavit, in which he states: "The only action I took with respect to the termination of Joey and Doby Vines was to communicate to Faulkner State University[[2]] APOSTC's decision to terminate them, and this action was taken in my official capacity as Executive Secretary of APOSTC." The trial court erred in not entering a summary judgment on the claims against Benefield in his official capacity based upon State immunity. See Burgoon, supra.
B. State-Agent Immunity
A State agent does not enjoy absolute immunity when acting in his individual capacity. This Court has recognized limitations on State-agent immunity. In Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000), a plurality of the Court restated the law of State-agent immunity:
"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"....
"(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
"....;
"(b) allocating resources;
"(d) hiring, firing, transferring, assigning, or supervising personnel; or
"....
"Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
"....
"(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."
In Ex parte Butts, 775 So. 2d 173 (Ala. 2000), a majority of this Court adopted the *1252 Cranman restatement of the rule governing State-agent immunity. Thus, State-agent immunity "`does not protect State officers and employees under circumstances where a plaintiff alleges that they acted "willfully, maliciously, illegally, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of the law." Phillips [v. Thomas, 555 So. 2d 81, 83 (Ala.1989)].'" Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1209 (Ala. 2006) (quoting Ex parte Alabama Dep't of Transp., 764 So. 2d 1263, 1268 (Ala.2000)).
More than mere allegation is required, however, and this Court has prescribed the procedures to determine the applicability of the limitations on State-agent immunity under a given set of facts when such misconduct is alleged:
"This Court has established a `burden-shifting' process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So. 2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So. 2d 685, 689 (Ala.1998). `A State agent acts beyond authority and is therefore not immune when he or she "fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist."' Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000))."
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala.2006)(emphasis added).
In their response in opposition to APOSTC and Benefield's motion for a summary judgment, the Vineses argued that there existed "genuine issues of material fact such that judgment in favor of [APOSTC and Benefield] is not appropriate at this time." As discussed above, the defense of immunity may be rebutted by a showing that the State agent's conduct meets the exceptions to State-agent immunity as provided by Cranman. The Vineses addressed the immunity issue by asserting that "Benefield ... in [his] individual capacit[y has] acted willfully, in bad faith, beyond [his] scope of authority and/or under a mistaken interpretation of law."
The demands for compensatory and punitive damages for certain of Benefield's conduct in his individual capacity require more than the mere conclusory statements offered by the Vineses.
"In our review of [the plaintiff's] affidavit, we are mindful that we should view all facts stated in her affidavit most favorably to the plaintiff, but we are also mindful that `[s]ummary judgment is not prevented by "conclusory allegations" or "speculation" that a fact issue exists. Bare argument or conjecture will not satisfy a [nonmovant's] burden to offer facts to defeat the motion.' Riggs v. Bell, 564 So. 2d 882, 885 (Ala.1990) (citations omitted). This Court has reiterated this principle frequently since Riggs, citing that case: McGarry v. Flournoy, 624 So. 2d 1359, 1361 (Ala.1993); Crowne Invs., Inc. v. Bryant, 638 So. 2d 873, 878 (Ala.1994) (`[M]ere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party's burden to offer facts or to defeat the motion.'); Blackburn *1253 v. State Farm Auto. Ins. Co., 652 So. 2d 1140, 1142 (Ala.1994); Huff v. United Ins. Co. of America, 674 So. 2d 21, 24 (Ala.1995); and Reid v. Jefferson County, 672 So. 2d 1285, 1290 (Ala.1995) (`[the nonmovant's] statements are conclusory. Thus, those statements do not constitute substantial evidence and, therefore, do not warrant submitting [his] claim to the jury'). This Court has stated: `[A party opposing a summary-judgment motion] must present facts, not merely inferences based upon belief, that counter facts offered in support of the motion.' Davis v. Ford Motor Credit Co., 599 So. 2d 1123, 1125 (Ala.1992)."
Brown ex rel. Brown v. St. Vincent's Hosp., 899 So. 2d 227, 238-39 (Ala.2004). The Vineses had the burden of presenting evidence indicating that Benefield acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority when he performed the duties associated with "hiring, firing, transferring, assigning, or supervising personnel." Cranman, 792 So.2d at 405. The Vineses, with their conclusory allegations, failed to meet their burden. Therefore, the trial court should have granted the motion for a summary judgment as to Benefield in his individual capacity based upon the prima facie showing he made of State-agent immunity.
Moreover, as stated previously, the Vineses offered no evidence indicating that Benefield was more than a mere agent for APOSTC, the entity that directed the termination of the Vineses' employment. Consequently, the Vineses have not offered substantial evidence indicating that Benefield acted willfully, in bad faith, beyond his authority, or under a mistaken interpretation of law when he reported the decision of APOSTC to terminate the employment of all SWAPA part-time employees, including the Vineses.
IV. Conclusion
Consequently, the petition for the writ of mandamus is granted and the writ issued; the trial court is directed to dismiss the claims against APOSTC and against Benefield in his official capacity, because, based on State immunity, the trial court acquired no subject-matter jurisdiction over them, and to enter a summary judgment as to the claims against Benefield in his individual capacity.
PETITION GRANTED; WRIT ISSUED.
COBB, C.J., and LYONS, STUART, SMITH, BOLIN, and SHAW, JJ., concur.
WOODALL and MURDOCK, JJ., concur in the result.
MURDOCK, Justice (concurring in the result).
I concur in the result. See Ex parte Sawyer, 984 So. 2d 1100 (Ala.2007) (Murdock, J., concurring in the result).
NOTES
[1] Branch was sued in his capacity as president of Faulkner State Community College, which provided classroom space, facilities-related services, and payroll services to SWAPA. In response to Branch's petition, this Court issued a writ of mandamus directing the dismissal of all claims against Branch. See Ex parte Branch, 980 So. 2d 981 (Ala. 2007).
[2] "Under a `joint-use agreement' ... Faulkner State [Community College] allowed SWAPA to operate on its property, provided class-room space and facilities-related services, and provided payroll services to SWAPA." Ex parte Branch, 980 So.2d at 983. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566698/ | REBEL ELECTRIC, L.L.C.
v.
JACOBS BUILDERS, INC., RANDALL G. WILKINS AND JULIE RAE WILKINS
No. 2009 CA 1821.
Court of Appeals of Louisiana, First Circuit.
April 14, 2010.
PHIL E. MILEY, Baton Rouge, LA Counsel for Plaintiff/Appellee Rebel Electric, L.L.C.
LARRY M. ROEDEL, CARLTON JONES, III, Baton Rouge, LA, Counsel for Defendant/Appellant, Jacobs Builders, Inc.
STEVEN B. LOEB, YVONNE R. OLINDE, Baton Rouge, LA, Counsel for Defendants/Appellees, Randall G. Wilkins and Julie Wilkins.
BEFORE: WHIPPLE, HUGHES, AND WELCH, JJ.
NOT DESIGNATED FOR PUBLICATION
HUGHES, J.
This is an appeal from a default judgment based on the contention that the judgment was insufficiently supported by the pleadings and the evidence. For the reasons that follow, we vacate in part and affirm in part.
FACTS AND PROCEDURAL HISTORY
In March of 2006 Jacobs Builders, Inc. ("Jacobs") agreed to construct a commercial building on property owned by Randall Wilkins and Julie Wilkins (collectively "Wilkins") for the price of $465,000.00. Rebel Electric, L.L.C. ("Rebel") was hired by Jacobs as a subcontractor for the project. Jacobs received $405,290.00 from Wilkins, but abandoned the job without completing the building or paying all of the subcontractors.
Suit was filed on September 26, 2008 by Rebel against Jacobs and Wilkins, seeking to recover the amount of $25,705.00, representing the unpaid balance of labor and materials furnished by Rebel on the building project. Wilkins filed an answer on March 10, 2009, which asserted a cross claim against Jacobs for indemnity in accordance with LSA-R.S. 9:4802(F).[1] Wilkins further alleged that the failure of Jacobs to perform the work under the contract resulted in property damages, delay damages, increased fees and expenses, and costs to complete and remediate the work. Wilkins also sought civil penalties against Jacobs, including attorney fees and litigation costs, under LSA-R.S. 9:4814.
On April 16, 2009 a default judgment was rendered on the main demand in favor of Rebel and against Jacobs in the amount of $25,705.00. This judgment was not appealed.
On May 18, 2009 a default judgment was rendered on the cross claim in favor of Wilkins and against Jacobs granting the indemnity claim, as well as awarding $25,705.00 in penalties (pursuant to LSA-R.S. 9:4814(C)), plus $12,436.98 as reasonable attorney fees, along with court costs and interest.[2]
On July 1, 2009 Jacobs filed answers to Rebel's main demand and to the cross claim of Wilkins. On July 17, 2009 Jacobs filed a devolutive appeal of the May 18, 2009 judgment. On appeal, Jacobs asserts the following assignments of error:
1. The trial court improperly rendered judgment in favor of the Wilkins awarding penalties and attorney fees under [LSA-]R.S. 9:4814 since the Wilkins[es] are not within the class of persons entitled to bring such a claim and absent any evidence to support any elements of such a claim.
2. The trial court improperly rendered judgment ordering Jacobs Builders to indemnify the Wilkins[es] for any other persons or entities who assert claims arising from the Wilkins[es'] project without any evidence regarding such claims or whether the claims fall within the scope of [LSA-]R.S. 9:4802(F).
LAW AND ANALYSIS
Penalties and Attorney Fees
In the first assignment of error, Jacobs contends that the award of penalties and attorney fees to the owner Wilkins on the basis of LSA-R.S. 9:4814 exceeded the authority granted in that statute, which provides:
A. No contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims to sellers of movables or laborers due for the construction or under the contract. Any seller of movables or laborer whose claims have not been settled may file an action for the amount due. including reasonable attorney fees and court costs, and for civil penalties as provided in this Section.
B. When the amount misapplied is one thousand dollars or less, the civil penalties shall be not less than two hundred fifty dollars nor more than seven hundred fifty dollars.
C. When the amount misapplied is greater than one thousand dollars, the civil penalties shall be not less than five hundred dollars nor more than one thousand dollars, for each one thousand dollars in misapplied funds.
D. A contractor, subcontractor, or agent of a contractor or subcontractor who is found by the court to have knowingly failed to apply construction contract payments as required in Subsection A shall be ordered by the court to pay to plaintiff the penalties provided in Subsection B or C, as may be applicable, and the amount due to settle the claim, including reasonable attorney fees and court costs.
(Emphasis added.)
Jacobs asserts that the plain language of this statute authorizes penalties and attorney fees only in favor of a "seller of movables" or a "laborer" who has a claim "due for the construction or under the contract." The owner Wilkins in whose favor judgment was rendered is neither a seller of movables nor a laborer. Jacobs cites to this court jurisprudence holding that when a statute authorizes the imposition of a penalty, it is to be strictly construed: GuiUory v. Lee, XXXX-XXXX, p. 37 (La. 6/26/09), 16 So. 3d 1104, 1130; Cosman v. Cabrera, XXXX-XXXX, p. 10 n.7 (La. App. 1 Cir. 10/23/09), ___ So.3d ___, ___ n.7; and Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Board of Nursing ex rel. Louisiana Department of Health and Hospitals, XXXX-XXXX, pp. 19-20 (La. App. 1 Cir. 12/23/08), 4 So. 3d 854, 869, writs denied, XXXX-XXXX, XXXX-XXXX (La. 4/13/09), 5 So. 3d 163. Jacobs further cites Spine Diagnostics as holding that the doctrine of strict construction requires that these penal statutes and their provisions be given a genuine construction according to the fair import of their words, taken in their usual sense, in connection with the context and with reference to the purpose of the provision. See Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Board of Nursing ex rel. Louisiana Department of Health and Hospitals, XXXX-XXXX at pp. 19-20, 4 So.3d at 869. We agree.
After reviewing LSA-R.S. 9:4814, we conclude that, plainly read, Paragraph (A) provides a right of action only to a "seller of movables" or a "laborer." Thus, only a "seller of movables" or a "laborer" would be a "plaintiff who would be entitled to recover the penalties and attorney fees authorized in Paragraph (D). Inasmuch as a strict construction of the statutory remedy is proper, we must consider the remedy enumerated in the statute to be the only remedy authorized by the legislature; that remedy then is exclusive. See Wright v. DeFatta, 244 La. 251, 260-61, 152 So. 2d 10, 14 (1963). Accordingly, the trial court's award of penalties and attorney fees in this case was erroneous and is hereby vacated.[3]
Indemnity for Claims of "Other" Persons/Entities
In its second assignment of error, Jacobs contends the trial court erred in rendering a default judgment that ordered indemnity for claims asserted by "any other persons or entities," to the extent such claims were not made by Rebel, as such indemnity would exceed the scope of the pleadings. Further, Jacobs asserted that no evidence had been presented to show that Wilkins has been subjected to a claim by anyone other than Rebel.
Louisiana Code of Civil Procedure Article 1703 provides: "A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy." This article is essential to prevent the judgment by default from going beyond the scope of the prayer. A defendant may decide not to defend as to a particular prayer for relief, whereas he would defend if relief beyond the prayer were available. If a judgment by default should exceed the amount demanded in the petition, it would be null to the extent of the excess. LSA-C.C.P. art. 1703, Comment. See also Howard v. A & M Construction Company, 93-1013, p. 10 (La. App. 1 Cir. 4/29/94), 637 So. 2d 575, 580; Mooring Financial Corp. 401 (K) Profit Sharing Plan v. Mitchell, XXXX-XXXX, pp. 4-5 (La. App. 4 Cir. 6/10/09), 15 So. 3d 311, 315-16.
In this case, Wilkins' cross claim against Jacobs for indemnity alleged that "in the event it is determined that Rebel has any valid claim and did suffer any damages to which the law allows a remedy, Jacobs is solely liable for the payment of any and all such amounts which may be determined to be owed to Rebel." Wilkins' prayer for judgment, contained in the cross claim, likewise sought indemnity only for "any and all amounts assessed against Wilkins arising from the claims of Rebel." Thus, Wilkins' cross claim only sought indemnity as to the claims asserted by Rebel and did not assert a claim for indemnity as to any claims by any other persons or entities.
Nevertheless, with respect to the claim for indemnity, the default judgment provided as follows:
IT IS HEREBY . . . ORDERED, ADJUDGED AND DECREED that [Jacobs] shall, pursuant to [LSA-]R.S. 9:4802(F), fully indemnify [Wilkins] for any and all amounts which may be assessed against Wilkins arising from the claims of [Rebel] and/or any other persons or entities who assert claims arisins from the construction project subject of these proceedinss [sic], and [Jacobs] shall be solely liable for the payment of any and all such amounts which may be determined to be owed to [Rebel] in this case.
(Emphasis added.)
In awarding indemnity to Wilkins for the claims of "any other persons or entities who assert claims arising from the construction project subject of these proceedings," the trial court's default judgment exceeded the amount demanded in the cross claim; therefore, this portion of the default judgment is null and is hereby vacated, in part, to the extent indemnity is granted as to any claims other than those asserted by Rebel against Wilkins. In all other respects, the judgment is affirmed.
CONCLUSION
For the reasons assigned, we vacate, in part, and affirm, in part, as indicated herein, the May 18, 2009 default judgment rendered by the trial court in favor of Randall G. Wilkins and Julie Rae Wilkins, and against Jacobs Builders, Inc. The parties shall bear their own costs.
VACATED IN PART; AFFIRMED IN PART.
NOTES
[1] Louisiana Revised Statute 9:4802(F) provides, in pertinent part: "A contractor shall indemnify the owner for claims against the owner arising from the work to be performed under the contract."
[2] The default judgment further stated that "[a]ll other claims are preserved," which presumably encompassed the claim of Wilkins for property damages that was not addressed by the default judgment.
[3] We note that the contract between Jacobs and Wilkins, filed into evidence at the default confirmation hearing, contains no provision authorizing the award of attorney fees upon default by a party thereto. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646146/ | 9 So.3d 624 (2009)
DALE
v.
STATE.
No. 2D07-5793.
District Court of Appeal of Florida, Second District.
May 22, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/707636/ | 70 F.3d 6
UNITED STATES of America, Appellee,v.Sheldon HANSEL, Defendant-Appellant.
No. 458, Docket 95-1226.
United States Court of Appeals,Second Circuit.
Submitted Oct. 31, 1995.Decided Nov. 7, 1995.
Moroslav Lovric, Assistant U.S. Attorney for the Northern District of New York, Binghamton, NY (Thomas J. Maroney, U.S. Attorney for the Northern District of New York, Syracuse, NY), for Appellee United States of America.
Sheldon Hansel, Lexington, KY, pro se.
Before: VAN GRAAFEILAND, JACOBS and PARKER, Circuit Judges.
PER CURIAM:
1
Defendant-appellant Sheldon Hansel pled guilty to eight counts of making false statements to the Commodity Credit Corporation (the "CCC"). Hansel demonstrates that his indictment on counts seven and eight was brought outside the applicable statute of limitations. Hansel's attorney, however, never objected on that ground, and Hansel was convicted and sentenced on all eight counts. Hansel contends that his counsel's failure to inform him that counts seven and eight were time-barred constituted ineffective assistance of counsel, and therefore that his subsequent waiver of the time-bar defense, evidenced by his plea of guilty to all charges without objection, was not voluntary.
2
We reverse Hansel's conviction on counts seven and eight, remand this case to the district court for resentencing, and, because appellant's remaining arguments are meritless, we affirm his conviction on counts one through six.
BACKGROUND
3
Hansel was a farmer who participated in the United States Department of Agriculture's Acreage Reduction Program (ARP) from 1989 to 1992. The ARP is an agriculture price-support program that provides "deficiency payments" to farmers who agree to leave cropland fallow. Each year, participants in the ARP enter into contracts with the CCC, the federal agency that administers the program and makes the deficiency payments. From 1989 through 1992, Hansel represented to the CCC that he would not produce certain crops on specific parcels of land, in return for which he received deficiency payments totaling $19,328.35. In fact, Hansel had no title, ownership rights or lease rights to the land he claimed to own.
4
Hansel was indicted on August 17, 1994 for making eight false statements to the CCC between April 1989, and June 1992, in violation of 15 U.S.C. Secs. 714 and 714m(a) and 18 U.S.C. Sec. 2. Hansel was represented by counsel, and pled guilty to all eight counts on November 10, 1994. There was no plea agreement. On April 6, 1995, Hansel was sentenced to sixteen months imprisonment on each count, to be served concurrently, two years of supervised release, $19,328.34 in restitution, and a $400 special assessment. Judgment was entered on April 25, 1995, and Hansel filed a timely notice of appeal on April 28, 1995.
5
There is no doubt that counts seven and eight of the indictment were deficient because they were brought outside the applicable five year statute of limitations. Hansel contends that his attorney did not inform him of the time-bar defense, that he would not have pled guilty had he known that he had an absolute defense, and that his waiver of the time-bar defense, therefore, was not knowing and voluntary.
6
Hansel also raises several objections to the grand jury proceedings, none of which warrant extensive consideration.
DISCUSSION
7
I. Statute of Limitations.
8
Under 18 U.S.C. Sec. 3282, "[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." See also United States v. Knoll, 16 F.3d 1313, 1318 (2d Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 574, 130 L. Ed. 2d 490 (1994). No other statute furnishes a different limitations period for cases brought under 15 U.S.C. 714m, and Hansel's conduct therefore is subject to the general federal five year limitation.
9
Count seven charges Hansel with illegal conduct occurring "[i]n and around July of 1989," and count eight with conduct occurring "[i]n and around April of 1989." Hansel's indictment was not filed until August 26, 1994, more than five years after the conduct alleged, and counts seven and eight therefore were brought outside the statute of limitations.
10
The government argues that Hansel waived his statute of limitations claim through counsel by not raising it prior to pleading guilty. The statute of limitations, of course, is an affirmative defense that must be raised to be preserved. United States v. Walsh, 700 F.2d 846, 855-56 (2d Cir.), cert. denied, 464 U.S. 825, 104 S. Ct. 96, 78 L. Ed. 2d 102 (1983). Furthermore, "a defendant cannot raise the issue of limitations after pleading guilty to the offense in question." Id. at 855 (citing United States v. Doyle, 348 F.2d 715, 718 (2d Cir.), cert. denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84 (1965)). Therefore, Hansel is precluded from raising the limitations defense in this Court.
11
Hansel's appellate argument, however, is that his counsel was ineffective in failing to raise the statute of limitations defense to counts seven and eight. In order to prevail on an ineffective assistance of counsel claim, "the defendant must show that counsel's representation fell below an objective standard of reasonableness," and that the defendant was prejudiced as a result of such conduct. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S. Ct. 2052, 2064-65, 2067, 80 L. Ed. 2d 674 (1984); see also Kieser v. New York, 56 F.3d 16, 18 (2d Cir.1995). As to the conduct of counsel, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (internal quotation marks omitted). As to prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
12
The conduct of Hansel's attorney "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. While counsel's tactical decisions command a high degree of deference, see id. at 689, 104 S. Ct. at 2065. Hansel's counsel's failure to object to the time-barred counts is unaccountable in the circumstances, and cannot "be considered sound trial strategy." In particular, counsel's decision cannot be justified by considerations related to the negotiation of a plea agreement, because Hansel pled without the benefit of one. Hansel's prejudice is that he pled guilty to two time-barred counts that would have been dismissed, if his attorney had acted competently. Hansel's counsel was therefore ineffective under Strickland, and Hansel's Sixth Amendment right to counsel was thereby impaired. Hansel's waiver of the time-bar defense cannot be deemed knowing and intelligent: we may assume that he would not have pled guilty to counts that he knew to be time-barred. Accordingly, we reverse Hansel's convictions on counts seven and eight of the indictment.
13
II. Grand Jury Claims.
14
Hansel's other objections are without merit. Hansel's objection to the presence of a government attorney during the grand jury proceedings fails, because Rule 6(d) of the Federal Rules of Criminal Procedure expressly states that government attorneys may "be present while the grand jury is in session." Also meritless is Hansel's claim that his right to challenge grand jury qualifications was violated because the names of the grand jurors were not revealed to him. A party requesting disclosure of secret grand jury minutes must make "a strong showing of particularized need," which Hansel has not made. United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 103 S. Ct. 3133, 3148, 77 L. Ed. 2d 743 (1983). Furthermore, any error in the grand jury proceedings must be considered harmless in light of Hansel's guilty plea. United States v. Hefner, 842 F.2d 731 (4th Cir.), cert. denied, 488 U.S. 868, 109 S. Ct. 174, 102 L. Ed. 2d 144 (1988).
CONCLUSION
15
For the foregoing reasons, the district court's judgment of conviction on counts one through six is affirmed. The district court's judgment of conviction on counts seven and eight is reversed, and the case is remanded for resentencing. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1566767/ | 161 F.2d 143 (1947)
NATIONAL LABOR RELATIONS BOARD
v.
SCULLIN STEEL CO.
No. 13442.
Circuit Court of Appeals, Eighth Circuit.
April 25, 1947.
*144 Marcel Mallet-Prevost, of Washington, D. C., Attorney, National Labor Relations Board (Gerhard P. Van Arkel, General Counsel, Morris P. Glushien, Associate *145 General Counsel, A. Norman Somers, Asst. General Counsel, and Thomas C. Marshall, Attorney, all of Washington, D. C., on the brief), for petitioner.
James E. Garstang, of St. Louis, Mo. (George A. McNulty and Carter, Bull, Garstang & McNulty, all of St. Louis, Mo., on the brief), for respondent.
Before GARDNER, THOMAS and RIDDICK, Circuit Judges.
GARDNER, Circuit Judge.
This matter is before us on a petition to enforce a cease and desist order of the National Labor Relations Board.
The order is based upon findings that respondent, in violation of Section 8(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(1), interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157, and gave assistance to the Independent Steel Workers Organization, and, in violation of Section 8(3) and (1) of the Act, discriminated against certain employees because they were active on behalf of outside unions or because they opposed the Independent Steel Workers Organization. The order required respondent to cease and desist from its unfair labor practices, from recognizing the Independent as the representative of any of its employees and from giving effect to any contract with the Independent unless and until the Independent should be certified as such representative by the Board; to withdraw and withhold any recognition from Independent Steel Workers Organization as the representative of any of its employees for the purpose of dealing with respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; to reinstate with back pay certain employees discriminated against, and to post appropriate notices.
Respondent is a Missouri corporation with its principal office and place of business at St. Louis, Missouri, where it is engaged in the manufacture, sale and distribution of under carriages for railroad cars, steel castings, and other miscellaneous products.
Prior to the organization of the Independent Steel Workers Organization there had been two successive organizations of employees of respondent, but on December 11, 1941, pursuant to stipulation, the Board entered its order requiring respondent to cease and desist giving effect to a contract theretofore entered into between the then existing union and respondent, and on February 14, 1942, this court entered an order enforcing the Board's order.
Early in 1941 the employees of respondent commenced organization of the Independent, and on December 10, 1941, respondent was advised by letter from the Regional Director of the National Labor Relations Board that Steel Workers Organizing Committee had filed a charge alleging company domination of the Independent. These charges were subsequently withdrawn. On February 3, 1942, a consent election agreement was entered into, pursuant to which an election was held under supervision of the Board on February 12, 1942. Subsequently objections were filed to the election which the Board sustained. A second election was held under the supervision of the Board, and on May 6, 1942, the Regional Director issued a report finding that the Independent had been elected as the representative of respondent's employees, 868 votes being cast for the Independent and 285 votes against it. Following notification to respondent by the Regional Director, negotiations were entered into between Independent and respondent resulting in a contract covering wages and working conditions. The contract by its terms became effective for one year beginning August 2, 1942, but contained an automatic renewal clause, by operation of which the contract was in effect at the time of the hearing. In August 1944, respondent began deducting Independent dues from the wages of Independent members who signed voluntary authorization cards for such deductions. This arrangement followed a request by Independent for such deductions.
The Board found that following the formation and certification of Independent respondent gave assistance to that organization by remarks of its supervisory employees in apposition to the C.I.O. and the *146 A.F. of L., and in favor of the Independent, by permitting solicitation of Independent membership during working hours, while enforcing its no solicitation rule where outside unions were involved, by discriminating against employees who were active in behalf of outside unions or who opposed the Independent. The Board found that, "Although we are of the opinion that the respondent's conduct in these respects is insufficient to constitute domination of the Independent within the meaning of Section 8 of the Act, we are satisfied, and we find, that by such conduct the respondent unlawfully assisted the Independent and interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that because of the illegal assistance by the respondent, the contract between it and the Independent was invalid."
As already observed, in its order to cease and desist the Board required respondent to cease giving effect to its contract with the Independent.
In resisting the petition to enforce petitioner's cease and desist order respondent contends that: (1) the board was not warranted in ordering respondent to cease and desist from recognizing the Independent Steel Workers Organization as the representative of its employees; (2) that there is no substantial evidence to support the Board's finding that respondent unlawfully assisted the Independent Steel Workers Organization in violation of Section 8(1) of the Act; (3) that if such assistance were rendered it would not effectuate the termination of the contract between respondent and Independent; (4) there is no substantial evidence to support the Board's finding that respondent discriminated against Modie Shaw and Charles B. Starks because of the union affiliations or activities of said employees.
Prior to entering into the contract with Independent that union had been certified as the representative of respondent's employees. It was then determined that Independent was not dominated by respondent. As a result of the hearing in the present proceeding the Board again found that Independent was not dominated by respondent. The acts found by the Board to be violative of the Labor Relations Act in giving assistance to Independent all occurred after Independent had been certified as the representative of respondent's employees and after the contract between respondent and Independent had been executed. The Board found that respondent, following the disestablishment of prior unions, "had wiped the slate clean" and that "the respondent did not recognize the Independent or enter into bargaining relations with it until the Regional Director, after investigating charges of company domination filed by the S.W.O.C., and after conducting a consent election, notified the respondent that the Independent had been elected as the bargaining agent of respondent's employees." The Independent was therefore recognized as a lawful and proper labor organization.
Section 7 of the Act provides that, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection."
One of the most important rights, guaranteed to employees is that of collective bargaining through representatives of their own choosing. Section 8 of the Act forbids an employer to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7. The purpose of the Act was to compel employers to bargain collectively with their employees to the end that employment contracts binding on both employer and employee should be negotiated. N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126. There is imposed upon the employer the obligation to bargain with his employees collectively, and included within this obligation is the duty to sign a written contract if the parties reach an agreement which the Board by appropriate order may enforce. H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309 There is no claim and the Board did not find that the contract here under review was invalid on its face, nor is there any *147 claim that the contract had been terminated by any agreement of the parties. By this contract Independent became the bargaining agent of respondent's employees in a designated unit, having been selected as such by a majority of the employees. The authority of the Independent as a bargaining agent could, we think, be terminated only by the agreement of the parties or by operation of law. The Board found that the parties were in such relations to each other as to entitle them to enter into this contract, and it is found that that relation still exists.
The Board, under Section 10 of the Act, 29 U.S.C.A. § 160, had power to require an offending employer "to cease and desist from such unfair labor practice, and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies" of the Act. This power is not, however, unlimited. The Board is not authorized to break some other law as a means of enforcing the provisions of this act. Southern Steamship Co. v. N. L. R. B., 316 U.S. 31, 62 S.Ct. 100, 86 L.Ed. 479; N. L. R. B. v. Fansteel Corporation, 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; Consolidated Edison Co. v. N. L. R. B., supra. Here the Board violates the contract of agency entered into by competent parties for a lawful purpose. The employees had the right to designate Independent as their bargaining agent. The Board issued its certificate and it became incumbent upon respondent to recognize Independent as the representative of its employees. Valley Mould & Iron Corporation v. N. L. R. B., 7 Cir., 116 F.2d 760. If there were doubt as to whether Independent remained the choice of the employees the Board had authority to settle that question by requiring an election, but this it did not do. In Consolidated Edison Co. v. N. L. R. B., supra [306 U.S. 197, 59 S.Ct. 219], the Supreme Court considered an order of the Labor Board which in effect invalidated contracts entered into between the representative of the employees and the employer. Observing that the Act gave no express authority to the Board to invalidate contracts with independent labor organizations and that the authority, if it existed, must rest upon the provisions of Section 10(c), which authorizes the Board to take such affirmative action as will effectuate the policies of the Act, the court said: "We think that this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order."
In the Edison case, as in the case at bar, the union was not dominated by the employer. The court further said:
"Here, there is no basis for a finding that the contracts with the Brotherhood and its locals were a consequence of the unfair labor practices found by the Board or that these contracts in themselves thwart any policy of the Act or that their cancellation would in any way make the order to cease the specified practices any more effective.
"The Act contemplates the making of contracts with labor organizations. That is the manifest objective in providing for collective bargaining. Under Section 7 the employees of the companies are entitled to self-organization, to join labor organizations and to bargain collectively through representatives of their own choosing. The 80 per cent of the employees who were members of the Brotherhood and its locals, had that right. They had the right to choose the Brotherhood as their representative for collective bargaining and to have contracts made as the result of that bargaining. * * *
"We conclude that the Board was without authority to require the petitioning companies to desist from giving effect to the Brotherhood contracts, as provided in subdivision (f) of paragraph one of the Board's order."
In the instant case there is no relation between the alleged unfair labor practices of respondent and its contract with its employees. As said by the Supreme Court in the Edison case, supra, "Here, there is no basis for a finding that the contracts with the Brotherhood and its locals were a consequence of the unfair labor practices found *148 by the Board or that these contracts in themselves thwart any policy of the Act * * *."
There does not seem to be even a suspicion that the Independent did not remain the choice of the majority of the employees. The Labor Act contemplates the making of such contracts as a means of obviating labor disputes which might result in interfering with interstate commerce. To destroy the contract here does not tend to effectuate the policy of the Act, but to thwart it.
By its cease and desist order respondent was required to cease and desist from "discouraging membership in American Federation of Labor and its affiliated international unions, United Steel Workers of America, District No. 34, C.I.O., or any other labor organization, or encouraging membership in Independent Steel Workers Organization or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment." This in effect is embodied in that part of the order which requires the respondent "to cease and desist in any other manner from interfering with or coercing its employees in the exercise of the right of self-organization, etc." The order follows the findings to the effect that respondent had been guilty of unfair labor practices in these regards.
In considering the acts which the Board found to be unfair labor practices chargeable to respondent, it is important to have in mind that so far as reflected by the record in this proceeding, during the time following the election which resulted in the certification of Independent as the bargaining agent for respondent's employees, the issue as to the right of representation was not a contested nor a debatable one. Rival organizations were not bidding for nor contesting that right and industrial peace reigned in respondent's factory. On November 17, 1941, and again in April, 1943, respondent posted notices clearly indicating that all employees in a supervisory capacity were forbidden to interfere in any manner with the freedom of action and choice of employees in joining or not joining labor organizations or collective bargaining groups. We think we should confine our consideration to the acts of respondent subsequent to the organization of the Independent.
The Board considered two classes of supervisory employees: (1) those concededly occupying supervisory positions, and (2) those characterized as minor supervisors and other employees. As to supervisory employees the Board found that in June, 1943, personnel manager Simmons told employee Melton that there was a union there in the company which he could join, and shortly thereafter general foreman Cain warned Melton that if he did not get that A.F. of L. button off he would be discharged. During the summer of 1943, works manager Walsh sent for employee Jim Austin and told him that he would be discharged if he did not stop being active around there in the A.F. of L., signing up cards on the premises. As to this the Board found that at the same time Independent stewards were openly soliciting memberships during working hours. At about the same time employees Whittaker and Shaw were warned against union activities on company time. In November, 1943, general foreman William Britt, when transferring James Swanagan to another job, told him if he wanted to get along with the boys he should join the Independent. In June, 1944, assistant works manager Otto Hacker assembled a group of employees under him and informed them that the Independent was putting through a raise of wages for them.
Respondent argues that taken as a whole the conversations with Melton do not indicate a threat but friendly warnings to quit soliciting union membership on company time. We do not think the Board was bound to draw that inference. The finding as to Austin is that he was warned against soliciting on the job. Whittaker and Shaw were warned against the same thing. The remarks of Britt to Swanagan were not coercive. Fairly construed they were to the effect that if he wanted to get along with his fellow workers, as distinguished from management, he should join the Independent. As the Independent was the representative of respondent's employees, *149 chosen by themselves without influence from respondent, this could scarcely be said to be in the nature of a threat or coercive. As to the statement that Independent had put through a raise for the employees, it was literally true. It brought about an agreement with respondent for an increase of wages and made joint application to the Labor Board for its approval.
This leaves one remark which might be construed to be threatening the remark made by a supervisory employee to Melton. Over a period of several years, the making of a single unwarranted remark to an employee, in the face of respondent's definite public announcement of its policy, the certification of Independent as the employees' representative, and a record otherwise clear of labor union hostility, is, we think, insufficient to sustain a finding of domination or interference. Humble Oil & Refining Co. v. N. L.R.B., 5 Cir., 113 F.2d 85; Martel Mills Corporation v. N.L.R.B., 4 Cir., 114 F.2d 624; N.L.R.B. v. Mathieson Alkali Works, 4 Cir., 114 F.2d 796; N.L.R.B. v. Whittier Mills Co., 5 Cir., 111 F.2d 474; Quaker State Oil Refining Co. v. N.L.R. B., 3 Cir., 119 F.2d 631; N.L.R.B. v. Clinton Woolen Mfg. Co., 6 Cir., 141 F. 2d 753; Utah Copper Co. v. N.L.R.B., 10 Cir., 139 F.2d 788; N.L.R.B. v. J. L. Brandeis & Sons., 8 Cir., 145 F.2d 556.
As to the minor supervisors whose actions are characterized as unfair labor practices chargeable to respondent, all four of them were members of the bargaining unit and had been approved as eligible to vote by representatives of the C.I.O. and the National Labor Relations Board. These four were instructors Abe Phillips and Frederick Thompson, and lead burners John Scott and Robert Williams. The Board's findings as to these men may be summarized as follows: Abe Phillips had been employed by respondent for thirty-two years, and since September, 1943, had been a core maker instructor, engaged in teaching young or inexperienced core makers how to make cores. He reported to higher supervisory employees the progress being made by new core makers, and he had the right to recommend to the boss whether a new man should be retained on that particular job or whether he should not. Thirty or thirty-five men were under him. John Scott was classified as a lead burner. General foreman Britt was asked to name the foreman under him, and among others he named John Scott and Robert Williams. The Board did not set out the testimony of Britt, but it is as follows:
"On the south side in the south plant I have John Scott on days as my lead burner. On days, 7 to 3, in the south plant I have Alvin Waters.
"Q. Foreman or lead man? A. Foreman over the welders. On nights in the south plant I have Robert Williams, who is lead burner."
Scott had been a burner for about five years. He had supervision over more than thirty burners and chippers on his shift, and he gave them orders what to do, issued passes to employees honored by the guards, permitting them to pass through the plant gates. He shared a locker room with Abe Phillips and one or two others, apart from the room used by employees generally. Robert Williams was assigned to the night shift over about eight burners. Britt remained on duty for about three hours of the night shift and then left instructions with Williams as to what work was to be done during the remainder of the shift. He assigned burners to various jobs in the department, was responsible for deciding as to the length of lunch periods during his shift and for seeing that the work assigned to the shift was completed before the men left to go home. When employee Hingo was transferred to the night shift by Britt, Britt told him that Williams would be his foreman and instructed him to follow Williams' orders. Frederick Thompson had been an instructor of chippers since 1942. He instructed fifteen to twenty employees. William Whitmire, assistant to the general foreman, testified that Thompson reported to him as to whether or not employees were progressing with the work.
The fact that these employees were considered as eligible to vote at the election was tantamount to a ruling that they were not supervisory employees, and they had a right to express their opinion at and prior to the election, and as their status was *150 not changed that right continued subsequent to the election. It would be an anomaly to hold that they were employees entitled to vote for a representative, and then to hold that subsequent to the election respondent should be held liable for remarks made by them as to labor matters. These men may properly be characterized as key men, chosen for their ability from among the employees. It is not shown that additional compensation was paid them. They had no power to hire nor discharge. One was said to have the right to recommend the hiring of new men based upon his observation as to their competency. They were in no sense supervisory employees. N.L.R.B. v. Arma Corporation, 2 Cir., 122 F.2d 153; N.L.R.B. v. Sun Shipbuilding & Dry Dock Co., 3 Cir., 135 F.2d 15. This view is strengthened by the fact that there was a total absence of antagonism between management and employees or their organization.
There remains to consider the finding with reference to discharges of certain employees which the Board found to be discriminatory. These employees were Needham Whittaker, Gennie Melton, Modie Shaw, Charles Starks and James Troupe. Respondent was ordered to offer reinstatement as to all but Troupe who is found to have been reinstated as an employee, but as to all of the others respondent was ordered to make them whole for any loss of pay suffered. Respondent resists enforcement of the order only as to Modie Shaw and Charles Starks.
Modie Shaw was craneman who had worked for respondent since 1916. He joined the C.I.O. in 1941 or 1942, and the A.F. of L. in June, 1943. He solicited membership in the A.F. of L. among employees of respondent. The Board found that Alvie Byrd, a steward of Independent, urged Shaw during working hours to leave the A.F. of L. and join the Independent, or he would be "kicked out." Shaw was warned by instructor Phillips that he would be discharged for being in the A.F. of L. It is observed that neither of these was connected with the management and these incidents may therefore be disregarded. Works manager Walsh sent for Shaw and asked why the men out in the shop were dissatisfied. About two weeks later Walsh again sent for Shaw, and the conversation is testified to by Shaw as follows: "He said to me, `I had you in here about a week ago.' I said, `No, not a week ago, two weeks ago.' He said, `Anyway, I heard about you out there on the union activities. If I hear it again, out you go.' I told him, `I am not practicing union activities in the shop at all.' He said, `You heard what I said.' I replied, `Who told you?' He said, `I don't care who told me, I got it from good information."
On Saturday, September 25th, Shaw was taken off the large crane he customarily operated and was temporarily assigned to a "gantry crane," a smaller crane for the operation of which the pay of one regularly assigned to it is lower than the pay Shaw was receiving for operating the larger crane. Shaw became angry, abandoned his work and walked out of the plant. On the following Monday he returned to the plant but was not permitted to resume work. Shaw admitted that he had made a little mistake on Saturday but was ready to correct it and go back to work. Walsh, however, told him he would have to settle the matter with employee Byrd, an Independent steward, and Egan, his immediate foreman. Shaw inquired whether he could ask the two men to come to Walsh's office but this Walsh refused to permit. Shaw then went to the office of the personnel manager but he was not in and when Shaw announced his name an assistant in the office gave him a "pink slip" and he was paid off. Shaw reported his discharge to Skaggs, a general representative of the A.F. of L. who telephoned personnel manager Simmons and asked for Shaw's reinstatement. Simmons, however, refused because Shaw had walked off the job and quit.
The Board found that Shaw had made a mistake in walking out in anger when assigned to the gantry crane, but justified his reinstatement on two grounds. One of these was that Simmons had once told Shaw, after Shaw had had a quarrel with another employee, that "the thing for him to do when he got in the heat of a dispute or something like that was to come in his office if it happened around the place *151 anywhere." The Board further said that Shaw was "cooling off," as he had been advised to do. The situations, however, are not parallel. Here Shaw was not quarreling with another employee but he was refusing to work as he had been directed to do by his immediate superior. As said by us in N.L.R.B. v. Kopman-Woracek Shoe Mfg. Co., 8 Cir., 158 F.2d 103, 108, "The employer has the undoubted right to direct the employee as to the task to be performed and the manner of its performance."
In N.L.R.B. v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486, 496, we said, "Any employee may, of course, be lawfully discharged for disobedience of the employer's directions, in breach of his contract. N.L. R.B. v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; N.L.R.B. v. Columbia Products Corporation, 2 Cir., 141 F. 2d 687."
There was legitimate cause for Shaw's discharge, and hence, if he were discharged there was no obligation to reinstate him. If it be said that he quit his job, this being without legitimate cause, there would likewise be no obligation to reemploy him. Finally, it is said that the same offense had been committed in the past with less serious consequences and there is cited the case of employee Eldridge. He, however, did not quit and walk off the job. There is also cited the case of an assault by this same employee upon the foundry superintendent for which he was only laid off for a few hours. Other offenses, however, have but a remote bearing and it is manifest from the record that the examiner so held, for in the course of the examination concerning the incident referred to the examiner said, "So far as I am concerned, it is pointless to go into the matter." It was not therefore fairly developed so that the two incidents and the discipline administered can not be fairly compared. Circumstances may entirely change the aspect of a given situation, and one supervisory employee may view one offense with a more serious eye than another so that the penal factor enters into each independent situation. It seems sufficient in the Shaw matter to observe that he quit, and having walked off the job respondent was not obliged to rehire him, but, as above observed, whether it be held that he quit of his own volition or was discharged, the result would seem to be the same as in either event there would be no obligation to reinstate.
Charles Starks was employed in November, 1939, and worked as a crane operator. He was quite outspoken in behalf of the employees as against the management, but no legitimate reason appears for his discharge. The Board, we think, could under the evidence have properly inferred that his discharge was for no valid reason except to silence the champion of the cause of the workers. To relate the details surrounding his discharge would serve no useful purpose.
The order appealed from will be modified so as to require respondent to cease and desist from discharging or refusing to reinstate any of its employees because of their union affiliations or activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; also to offer to Needham Whittaker, Gennie Melton and Charles Starks immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and to make them and one James Troupe, also improperly discharged, whole for any loss of pay they may have suffered by reason of respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of respondent's discrimination against him to the date of respondent's offer of reinstatement, less his net earnings during said period; also to post appropriate notice at the plant and give written notice to the Regional Director as to what steps respondent has taken in compliance with the order. As so modified the order will be enforced. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566778/ | 34 So.3d 17 (2010)
ROWE
v.
STATE.
No. 4D08-1424.
District Court of Appeal of Florida, Fourth District.
May 25, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567625/ | 579 S.W.2d 95 (1979)
HANNA LUMBER COMPANY, Appellant,
v.
Cleman NEFF, d/b/a Cleman Neff Design Builder, Appellee.
No. 78-280.
Supreme Court of Arkansas, Division 2.
April 9, 1979.
*96 Jones & Segers, Fayetteville, for appellant.
Kelley, Luffman & Matthews, Rogers, for appellee.
HOLT, Justice.
Appellee brought suit against appellant to recover damages allegedly caused by the failure of a truss system manufactured by appellant. The jury awarded appellee $9,500. The court ordered a remittitur of $1,930.57. We first discuss appellant's contention that the court erred in admitting certain checks into evidence to prove damages.
Appellee purchased prefabricated wood trusses from appellant to be used in appellee's *97 construction operations. During construction of a building for which the trusses were purchased, the entire truss system collapsed after a bottom cord broke when one of appellee's workmen stood on it. In support of its proof of damages, over appellant's objection, the court admitted into evidence certain checks signed by appellee or his employee on appellee's bank account. The checks were offered to establish amounts paid by appellee to various parties for building new trusses and repairing damages to the building caused by the failure of the trusses. Some of the checks covered payments on other projects not relevant to the job in the case at bar. The checks (totaling $12,723.23) contained "little notations" on them (totaling $6,304.46). These notations indicated the amount included in each check which was attributable to the job or damages in question. It is these notations to which the appellant objected. It argues that the admission of these checks, with the notations, into evidence violated the hearsay rule of evidence. The appellee responds that the checks fall within the' business record exception to that rule as set out in Ark.Stat.Ann. § 28-1001, Rule 803(6) (Supp.1977).
We agree with appellant that the checks constituted a violation of the hearsay rule. Neither do they fall within the business records exception. There was no showing that the notations were made at the time the checks were written or that it was a regular practice of the business to make such notations. Appellee's testimony as to his damages was based upon these notations; he could not identify the source of the notations; he did not bring his business ledgers or books; and he could not testify from memory as to the work done by the parties to earn the amount noted on the checks. Error is presumed to be prejudicial unless it is demonstrated to be otherwise or is manifestly not prejudicial. Buckeye Cellulose v. Vandament, 256 Ark. 434, 508 S.W.2d 49 (1974). Here we cannot say with confidence that the asserted error was not prejudicial
Appellant also contends that the court erred in not directing a verdict in its favor as there was no evidence that its negligence in constructing the alleged defective trusses or its breach of a warranty was the proximate cause of appellee's damages. We cannot agree with these contentions. On appeal we view the evidence in the light most favorable to the appellee. Green v. Harrington, 253 Ark. 496, 487 S.W.2d 612 (1972). If there is any evidence in favor of the party against whom the directed verdict is sought, it is error for the court to take the matter from the jury. Home v. Mutual Fire Ins. Co. v. Cartmell, 245 Ark. 45, 430 S.W.2d 849 (1968). In St. Louis-San Francisco Ry. Co. v. Bishop, 182 Ark. 763, 33 S.W.2d 383 (1930), in discussing proximate cause, we said: "`It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other, that the conclusion therefrom may be fairly inferred.'"
As indicated, the appellee purchased prefabricated wooden trusses from the appellant. They were manufactured according to preengineered specifications. The truss system collapsed the day following its installation. This occurred when a truss on which appellee's employee was standing broke causing the remaining truss system to fall. According to appellee's evidence, an inspection following the collapse revealed that pin knots went all the way through the trusses which weakened the tensile strength of them. This would affect the capability of the trusses to withstand shifting. The joints showed weather cracking. The weak and defective condition of the trusses was the cause of the collapse of the trusses. Before they fell, a loud "pop" was heard. The trusses did not fall in the same direction, although it was indicated that, if trusses fell due in inadequate bracing, they would topple in the same direction like dominoes. We hold there was sufficient evidence to enable fair-minded men to draw the inference that the negligence of appellant proximately resulted in the injuries to appellee.
*98 In its argument as to breach of warranty, appellant cites Jones v. Atkins, 254 Ark. 472, 494 S.W.2d 448 (1973), as standing for the proposition that a buyer is precluded from recovering consequential damages in a breach of warranty action when the buyer uses the nonconforming goods. A reading of that case shows, however, that the mere acceptance of the goods does not bar a claim for damages due to nonconformity. When it is reasonable to use the goods without inspection, recovery is not precluded. Ark.Stat.Ann. § 85-2-715(2)(b) Comment 5 (Add.1961). Here it was not the policy of the appellee to inspect the trusses when they were delivered inasmuch as they were represented and accepted as structurally sound. Upon delivery, they were stacked and banded together which prevented inspection. A limited inspection could only be made as the prefab material or section (250 to 550 lbs.) was hoisted into place during installation. The installation process itself made it virtually impossible to inspect the prefabricated truss system. In summary, the truss system was manufactured by appellant according to preengineered specifications, stamped and approved by appellant for use. It was accepted and understood by appellee as being reliable or fit for the purpose or use for which the trusses were designed and assembled, i. e., roof support. A cursory inspection would not reveal the flaw in the design or material which proximately caused the collapse of the system. The court did not err in failing to direct a verdict on the basis of lack of evidence of proximate cause on the issue of a breach of warranty.
It is also contended that the court erred in admitting evidence of the cost of replacement trusses, because appellee had not paid for the original trusses, and the court incorrectly gave jury instruction No. 11. With regard to the evidence of the cost of replacement trusses, appellant argues that the evidence was irrelevant and confusing and should have been excluded under Ark.Stat.Ann. § 28-1001, Rules 402 and 403 (Supp.1977). Appellee responds that the evidence was properly admitted, arguing that he, as was his right under Ark.Stat.Ann. § 85-2-608 (Add.1961), revoked his acceptance of the trusses and, under § 85-2-711, "covered" or purchased substitute goods in good faith and without reasonable delay. Thus, the difference in the price of the original trusses bought from appellant and the replacement trusses was the "essence" of what appellee was seeking to recover, as provided for in § 85-2-712. Further, the appellee contends that, if he did not effectively pursue this remedy, the evidence was relevant to the issue of damages for breach of warranty of accepted goods. Finally, he argues that, if the difference in value test is used, the evidence was relevant in determining both the reasonable market value of the trusses if they had been as warranted and the value of the collapsed trusses as salvage.
We agree that the evidence was relevant in determining the amount of damages attributable to a breach of warranty. § 85-2-714 provides that, in a proper case, any incidental and consequential damages stemming from a breach in regard to accepted goods may be recovered. The difference in the cost of the original and replacement trusses could be a proper element of such consequential damages. Accordingly, the court was correct in its admission of the evidence.
As to appellant's argument that the court incorrectly gave Instruction No. 11, we point out that AMI Civil 2d 2221, from which that instruction was formulated, does, as appellee notes, permit the insertion of the elements of damages. However, in the "Note on Use" for that instruction, it is provided that the instruction must be completed by inserting the appropriate element of damage from among AMI 2222 through 2228; there is no provision for the court to insert language such as was used in the instruction here. We have said that it is impermissible to use a substitute instruction in place of an applicable AMI and, if an applicable AMI is not used, the court must state the basis for its refusal to use it. Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W.2d 388 (1972). See also *99 C.R.I. & P.R.R. Co. v. Hughes, 250 Ark. 526, 467 S.W.2d 150 (1971). Here the court gave no reason for its modification of the applicable AMI provisions, and in view of a possible retrial, we cannot agree that the instruction, as given, was not confusing.
The appellant next asserts that the trial court erred in its entry of judgment on the jury's findings inasmuch as the jury's answers to the interrogatories were inconsistent with its general verdict. We need not discuss this contention since it is not likely to happen upon retrial.
For the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
We agree: HARRIS, C.J., and FOGLEMAN and HICKMAN, JJ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1713053/ | 358 So. 2d 782 (1978)
Ex parte James POLLARD.
77-425.
Supreme Court of Alabama.
May 26, 1978.
SHORES, Justice.
WRIT DENIED.
TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566782/ | 440 S.W.2d 696 (1969)
William N. GOULD, Appellant,
v.
The CITY OF EL PASO et al., Appellees.
No. 6006.
Court of Civil Appeals of Texas, El Paso.
April 16, 1969.
Rehearing Denied May 14, 1969.
*698 Fred J. Morton and Paul A. Echols, El Paso, for appellant.
Travis White, City Atty., John C. Ross, Jr. and Wade Adkins, Asst. City Attys., El Paso, for appellees.
OPINION
FRASER, Chief Justice.
As stated in his brief, appellant brought suit to recover contributions in the amount of $1,258.89 made by him through salary deductions to the Firemen, Policemen and Fire Alarm Operators' Pension Fund of El Paso, Texas, while employed as a fireman in El Paso, Texas from on or about December 22, 1960 until May 31, 1966. Appellee filed its Motion for Summary Judgment and, after notice and hearing, the court granted appellee's Motion for Summary Judgment, to which plaintiff in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Eighth Supreme Judicial District of Texas.
It appears that appellant voluntarily terminated his employment, and at the time of such termination was advised for the first time that he would not be able to receive a refund with respect to any of the contributions paid in by him, despite his request that such refund be made.
Appellant has two points of error, which we will consider together, in which he challenges the court's action in granting appellees' motion for summary judgment on the ground that Article 6243b, Vernon's Ann.Tex.Civ.St., is a local law regulating the affairs of the City of El Paso in violation of Article III, Section 56 of the Texas Constitution, Vernon's Ann.St., in that such statute sets up a pension fund applicable to firemen and policemen only in El Paso; and secondly, that said Article 6243b as applied to appellant denies him the equal protection of the law, in violation of Article I, Section 3 of the Texas Constitution, and in violation of Section 1 of the Fourteenth Amendment to the United States Constitution in that the legislative enactment fails to protect contributions made by firemen and policemen in other Texas cities. As set forth in the brief of the appellees the statute in questionArticle 6243bauthorizes the establishment of a pension system and provides how the necessary funds are to be obtained and specifies how and to whom benefits are to be paid. Management of the fund is placed in a Board of Trustees.
We believe that the points of the appellant must be overruled for the following reasons. In the first place, there is nothing in this statute under which the pension is regulated, authorizing the trustees to pay anything to an employee who leaves the City service before he qualifies for a pension. Texas courts have uniformly held that an employee who resigns or is discharged cannot get his contributions back. Reagan v. Board of Firemen, Policemen, etc., 307 S.W.2d 958 (Tex.Civ. App.1957, n.w.h.); Gaines v. Shank, 312 S.W.2d 268 (Tex.Civ.App.1958) (Ref., n. r. e.); Jud v. City of San Antonio, 313 S.W. 2d 903 (Tex.Civ.App.1958, err.ref.). With regard to the appellant's assertion that various constitutional provisions have been violated, we will attempt to treat these matters, although only one such was briefed or assigned to this court, and although this is not a quo warranto proceeding challenging the Board of Trustees to administer the fund, nor a suit to appoint a receiver to wind up the fund, nor a suit by employees to stop the City from making deductions from pay. It is simply a demand for $1,258.89 which plaintiff maintains that he paid into the fund and now wants returned to him. We must observe that even if there had been unconstitutionality present in this controversy, appellant was presumed to know the law and the circumstances *699 and regulations under which he accepted employment as a fireman; and if the money was paid under a mutual mistake of law, it has been held that such a mutual mistake is not a valid ground for recovery thereof. Galveston County v. Gorham, 49 Tex. 279 (1878). We do not find any exceptions to the rule here, such as where payment was made under duress or fraud, or advantage taken through a fiduciary relationship, or even where payment was mistakenly made out of the public treasury. None of these exceptions is pleaded in this case. City of Taylor v. Hodges, 143 Tex. 441, 186 S.W.2d 61. We repeat, there is no evidence that anyone misrepresented anything to appellant, or that any fraud, pressure or duress or overreaching occurred. His rights are fixed by statute, and he is charged with knowledge of it; and the City officials cannot change it or nullify it by failing to explain its provisions.
Now as to the constitutionality of Article 6243b, both state and national, we do not find any such to exist. It has long been held that states may enact population bracket statutes, and the constitutional questions applied thereto have been long decided. As recently as 1968 the Supreme Court, in Smith v. Davis, 426 S.W.2d 827, pointed out that in passing on the constitutionality of a statute, the court begins with the presumption of validity and presumes that the Legislature has not acted unreasonably or arbitrarily; and therefore a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable. The court further emphasizes that the wisdom or expediency of the law is the Legislature's prerogative and not that of the courts, and that there is a strong presumption that the Legislature understands and correctly appreciates the needs of its own people and that its determinations are based upon adequate ground. There are numberless population bracket statutes authorizing city pension plans. The first was passed in 1919. Then the Legislature began passing other population bracket statutes on the same subject. These are in V.A.T.C.S. under the number 6243 followed by letters of the alphabet. Each of these articles, with letters after the numbers, is a complete statute divided into sections. The section applying to El Paso is "b". Since the origin of these statutes, many decisions have been handed down authorizing their application and constitutionality. We do not find that the application here is what is called a "local" law, as other cities could qualify under the same provision. It is elementary that when an appellate court is called upon to revise the ruling of a trial court, it must do so upon the record before that court when such ruling was made. Here we have a summary judgment, with no affidavits filed on either side, and therefore it must be considered on the basis of the pleadings. Therefore it follows that we must decide whether plaintiff's petition, including the amendment, states facts which, if true, would support a holding that Article 6243b is a local or special law. The pleadings mention only that the statute fails to provide a general law applicable to all cities, but applies to El Paso only. We cannot agree with this statement because, to do so, would be to say that a law is void if it does not apply to all cities, and to say that the Legislature cannot classify cities at all, which has long been held a correct prerogative of the Legislature; as, for example, the Supreme Court of Texas, in Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738, held that a pension statute applying to cities of only more than 10,000 population, and, as since amended, applies to cities of 280,000 or more, was valid. It is further pointed out by the Supreme Court, in City of Ft. Worth v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470, 41 S.W.2d 228, that such a statute regulating pensions, etc., at the time of its passage, affecting only one city, is not a local or special statute for the reason that other cities can qualify by population changes. The same case went on to point out that to be repugnant to the constitutional provisions *700 under discussion, the act must be so drawn that by its plain and explicit provisions it is made to apply to only one city in a state, and can never in any contingency apply to any other city. So we believe the law to be well established that when the statute is passed, even though there is only one city that could qualify, if it is possible for other cities to enter that classification, such law is constitutional and not repugnant to any constitution. It is only unconstitutional when it can never apply to any but one city in any possible event. As illustrated in the Bobbitt case, the population bracket was tied down to one particular censusthat of 1920. That census became history, and no other city could ever qualify within the brackets of that statute as the 1920 census had expired. Appellant mentions and compares the El Paso plan to other cities, but we do not find any merit emanating from these comparisons. The Texas law has been enunciated several times to the effect that the presumption is always in favor of the validity of the legislation, and if there could exist a state of facts justifying classification or restrictions complained of, the courts will assume that it existed. Auto Transit Co. v. City of Ft. Worth, 182 S.W. 685 (err.ref.); Reed v. City of Waco, 223 S.W.2d 247 (err.ref.).
The present population bracket for El Paso was put in the statute by amendment passed in 1963. If it should be held void, then the El Paso plan would revert to the 1960 census, which had by its terms brought six other cities into the bracket. It appears, therefore, that Article 6243b was legal and was also valid when the appellant went to work for the City and began to contribute to the fund; and even if appellant's charge that the statute is a local or special law were sustained, it would only knock out the 1963 amendment and leave the original statute in effect. Such a situation would then permit the City of El Paso to operate the pension system as before, and the right of the fund to retain appellant's contribution would be the same, whether the 1963 amendment be valid or not. We will not discuss the constitutionality of these bracket-type statutes any farther, as they have been passed on so many times by both state and federal courts that it is elementary that unless the statute or regulation is such that it could never apply but to one city and locality, it is constitutional. If it could only apply, as in the Bobbitt case, to one city, it could not be constitutional.
We have checked through the appellant's cases but do not find them in point or persuasive, in view of what we have said. With regard to appellant's second point in which he compares the different population-bracket cities and their plans to the one used in El Paso, we do not think it violates any part of the federal constitution. There are different provisions and different percentages paid into the various funds of the various cities, and different times and conditions for retirement; nor do we find merit in appellant's argument that he had a vested right, or a property right, in said fund, permitting him to withdraw his contributions. This matter was definitely set out in the case of Reagan v. Board of Trustees (supra), and Jud v. City of San Antonio (supra). The same reasoning applies to the city's contribution to the fund. Once made, they are not the property of the city, but of the fund, and the city loses control of it as the city's contribution no longer belongs to the city. These provisions enable those in control of the funds to invest them in corporate stocks and other means of investment where city funds cannot constitutionally be invested. Another theory is that the salary paid to appellant or others working in similar capacities is city money, part of which the city places in the fund, and the remainder is paid to the fireman or other employee as his salary.
We have carefully considered appellant's position and brief, as well as the cases cited therein, but we cannot find any legal reason that would justify the city (or even permit it) in withdrawing from the *701 fund controlled by trustees a sum of money to give it to a resigning employee, even though the sum of money represents the amount placed in the fund as a part of the employee's salary. Nor do we find the statute, Article 6243b, which is the one controlling the pension plan in El Paso, to be exclusive in any way. In other words, other cities could, by population changes, qualify under this same provision.
Appellant's points are therefore overruled and the decision of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566816/ | 34 So.3d 342 (2010)
AMSOUTH BANK
v.
Riley Truman SESSIONS and Mark Bryan Sessions.
No. 09-CA-504.
Court of Appeal of Louisiana, Fifth Circuit.
February 9, 2010.
Wayne A. Maiorana, Jr., Joseph E. Fick, Jr., Attorneys at Law, Metairie, LA, for Appellant, AmSouth Bank.
David Greenberg, Adrian F. Lapeyronnie, III, Attorneys at Law, Gretna, LA, for Appellee, Riley Truman Sessions.
Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MARC E. JOHNSON.
SUSAN M. CHEHARDY, Judge.
On appeal, AmSouth Bank seeks review of the trial court's grant of Riley Sessions' exception of no cause of action and dismissal of its case against him. For the following reasons, we reverse and remand.
On April 5, 2002, Riley Truman Sessions ("Riley") and Mark Bryan Sessions ("Mark"), as co-makers, signed a promissory note in the amount of $171,190.28, made payable to AmSouth Bank ("AmSouth"), bearing interest at a rate of 7.625% per annum.[1] In the "General Provisions" clause of the note that Riley and Mark signed, they agreed that "our liability under this Note will be on a `solidary' or `joint and several' basis with one another for all purposes." On May 19, 2006, AmSouth filed suit against Riley and Mark Sessions in the 24th Judicial District Court for the Parish of Jefferson seeking payment of the unpaid balance of the note *343 totaling $65,380.72, plus interest, costs and attorney's fees.
Service was requested on Riley and Mark Sessions at 852 Mystic Avenue, Gretna, Louisiana. On or about July 26, 2006, AmSouth filed A Motion to Appoint Special Deputy to effect service of process on Riley, which was granted. The record does not reflect a return of service from either special deputy appointed to effect service.
Meanwhile, Mark entered into a Consent Judgment with AmSouth Bank agreeing to "judgment herein in favor of the plaintiff, AmSouth Bank and against the defendant, Mark Bryan Sessions, in the principal sum of $65,380.72," plus interest from the date of demand until paid, "plus 25% of principal and interest as attorney's fees, and all costs of these proceedings." Judgment was filed with the court and signed by the trial judge on September 19, 2006. The Consent Judgment specifically reserved AmSouth's rights "to pursue co-defendant(s) for all relief to which [AmSouth] is entitled against that defendant(s) in these proceedings."
On November 24, 2008, AmSouth filed a second Motion to Appoint Special Deputy to effect service of process on Riley, which was granted. Again, the record before us does not reflect a return of service.
On January 30, 2009, Riley filed an exception of no cause of action on the basis that "the promissory note sued upon by AmSouth Bank was merged into a September 19, 2006 judgment rendered by the court, and as a result, the promissory note now sued upon no longer exists as a distinct obligation or litigious right...." On March 23, 2009, after a hearing, the trial judge granted Riley's exception of no cause of action and dismissed AmSouth's "allegations" against Riley with prejudice. In her Reasons for Judgment, the trial judge stated:
The critical issue in this case is whether the Consent Judgment between Mark Bryan Sessions and AmSouth extinguished the obligation evidenced by the original promissory note. Considering the case law cited by defendant, the Court finds that it did. The Consent Judgment reduced the entire remaining balance of the promissory note to a judgment against Mark Bryan Sessions. Therefore, the promissory note ceased to exist as a distinct obligation or litigious right. The Consent Judgment became the new obligation.
Furthermore, based upon the case law cited by defendant, the reservation of rights included in the Consent Judgment has no effect. Once the obligation was reduced to a judgment, AmSouth had no rights left to reserve against Riley Truman Sessions. The obligation under the note was satisfied by the judgment against Mark Bryan Sessions. While the Court felt that the arguments by counsel for AmSouth were persuasive, the Court cannot ignore the clear language of the case law cited by defendant. AmSouth had the right to pursue one or both defendants for the entire sum owed on the note; however, once AmSouth secured a judgment against Mark Bryan Sessions for the entire sum, the obligation under the note ceased to exist as a litigious right. Therefore, AmSouth no longer has a cause of action against Riley Truman Sessions.
AmSouth now seeks relief in this Court.
In Cleco Corp. v. Johnson, 01-0175 (La.9/18/01), 795 So.2d 302, 304, the Louisiana Supreme Court enunciated the standard for reviewing the grant of an exception of no cause of action:
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to *344 anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n, 94-2015 (La.11/30/94), 646 So.2d 885. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial. Barrie v. V.P. Exterminators, Inc., 93-0679 (La.10/18/93), 625 So.2d 1007. In reviewing a trial court's ruling sustaining an exception of no cause of action, the court of appeal and this court should subject the case to de novo review because the exception raises a question of law, and the lower court's decision is based only on the sufficiency of the petition. Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.5/23/83).
On appeal, AmSouth argues that the trial court erred in holding that once a Judgment is issued toward one solidary obligor, the obligation ceases as to all other solidary obligors and/or makers of a promissory note or debt instrument, and that the obligation under the note ceased to exist as a litigious right. In support, AmSouth quotes the language of the promissory note, reiterating that Riley and Mark knew that their liability is "solidary" or "joint and several."
"An obligation is solidary for the obligors when each obligor is liable for the whole performance." La. C.C. art. 1794. Pursuant to La. C.C. art. 1795: "An obligee, at his choice, may demand the whole performance from any of his solidary obligors. A solidary obligor may not request division of the debt. Unless the obligation is extinguished, an obligee may institute action against any of his solidary obligors even after institution of action against another solidary obligor."
This allows for the possibility of separate judgments. La. C.C. art. 1795; Frank's Door & Bldg. Supply, Inc. v. Double H. Const. Co., 459 So.2d 1273 (La.App. 1st Cir.1984). Performance rendered by one of the solidary obligors extinguishes the obligation and "relieves the others of liability toward the obligee." La. C.C. art. 1794. Finally, proof of extinguishment of the obligation is the defendant/obligor's burden. La. C.C.P. art. 1005.
Based on the above principles, our de novo review reflects that, despite having previously obtained the consent judgment against Mark, AmSouth does have a cause of action against the co-maker for the entirety of the joint indebtedness under the law of solidarity. See Bank One v. SWC Corp., 36,043 (La.App. 2 Cir. 8/14/02), 823 So.2d 1060, 1063-1064. Accordingly, we reverse the trial judge's ruling on Riley's exception of no cause of action and remand for further proceedings. Costs of this appeal are assessed against appellee, Riley Truman Sessions.
REVERSED AND REMANDED.
NOTES
[1] The note was secured by a mortgage in favor of AmSouth Bank on immovable property located at Lot 18, Creekwood Place, Unit One, in Mobile County, Alabama with the physical address of 7551 Creekwood Drive, Mobile, Alabama. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566818/ | 440 S.W.2d 410 (1969)
COMMONWEALTH COUNTY MUTUAL INSURANCE COMPANY, Appellant,
v.
Albert Daniel BURCH, Appellee.
No. 7053.
Court of Civil Appeals of Texas, Beaumont.
April 3, 1969.
*411 Orgain, Bell & Tucker, Beaumont, for appellant.
Earl B. Stover and Lee Roger Ratliff, Silsbee, for appellee.
PARKER, Chief Justice.
Commonwealth County Mutual Insurance Company sued Albert Daniel Burch for a declaratory judgment to cancel or rescind an automobile insurance policy, tendering and depositing into the registry of the court the insurance premium charged, i. e. $173.00, alleging there was a loss prior to the time the policy was in fact issued. Burch filed a cross-action to recover under the policy, alleging in his verified pleading the market value of the automobile before the collision was $2,100.00, with no market value after the collision. Each filed a Motion for Summary Judgment. The court overruled Commonwealth's Motion for Summary Judgment, and granted Burch's Motion for Summary Judgment. Commonwealth has appealed. The insurance company will be called Commonwealth or appellant. Burch will be called Burch or appellee.
Appellant's Points of Error are:
"Point of Error No. 1
"The Trial Court erred in granting Appellee's Motion for Summary Judgment, holding that the policy insured against a loss which occurred prior to the time the policy was issued.
"Point of Error No. 2
"The Trial Court erred in overruling Appellant's Motion for Summary Judgment, failing to hold that an insurance policy is not effective to cover a loss which occurred prior to the time the policy was issued.
"Point of Error No. 3
"The Trial Court erred in holding that an insurance policy issued after loss is sustained covers such prior loss."
All points of error are considered together.
Ideal Insurance Agency issued Commonwealth County Mutual Insurance Company's family automobile policy dated July 19, 1967, to Albert Daniel Burch, with a pre-dated policy period of 12:01 a.m., July 18, 1967, to July 18, 1968, providing limits of liability coverage of $10,000.00, per person and $20,000.00 per occurrence, and further providing for collision coverage on the automobile owned by Burch. Prior to the time the policy was issued, Burch had been involved in an automobile accident on July 18, 1967.
On July 18, 1967, at approximately 6:00 p.m., Burch met Bobby Hardin in Buna and told him that he wanted insurance on his automobile with a $50.00 or $100.00 deductible. Burch was in his automobile. It existed. Prior thereto, Burch had placed with Hardin liability policies of insurance on one of his automobiles, which policy was issued by the Farmer's Insurance Company. On July 18, 1967, Hardin told Burch he was covered, figured the amount of the premium and Burch gave him a check. Application for insurance was signed by Burch, with no statement and no agreement as to which company would write the insurance, either verbally or in writing. Burch knew Hardin worked for Farmer's Insurance Company, but did not know what other companies Hardin worked for. Shortly after midnight, of July 18, 1967, Burch was involved in an accident with extensive damage to his automobile, the damages being stipulated by the parties to be $1,900.00. Thereafter, Burch told Hardin of the accident. Burch dealt with no one except Hardin.
The policy shows the insurance agent to be the Ideal Insurance Agency of Kirbyville, *412 Texas, with the policy being signed by Jack Barron as the representative of the agent. It was not until July 19, 1967, but after the automobile was damaged, that Hardin went to Kirbyville, taking to Jack Barron, a co-owner of Ideal Insurance Agency, the signed application for insurance to cover Burch. Hardin stated he did not think that Farmer's Insurance Company would accept the risk and asked Barron to write the policy. At that time, neither Hardin nor Barron knew that Burch and the automobile had been involved in an accident the night before. Barron figured Commonwealth County Mutual Company's rates, and wrote at the top of the application "Commonwealth". The policy was then typed with the policy period above mentioned, and dated July 19, 1967. Commonwealth did not accept the application until after the loss occurred, and without knowledge of the loss. Burch's check for premiums was received by Ideal Insurance Company on July 19, 1967. Ideal Insurance Agency had a contract with Commonwealth, being a general agent for it. Barron, as general agent for Ideal Insurance Company, had authority to issue lawful insurance policies for and on behalf of Commonwealth. However, neither Commonwealth nor Ideal Insurance Agency had a contract, either written or verbal, with Hardin. The sole insurance license to Hardin was through Farmer's Insurance Company. Ideal Insurance Agency wrote no contracts of insurance for Farmer's Insurance Company. Hardin never had authority to bind Ideal Insurance Agency or any of its companies. Ideal Insurance Agency occasionally brokered business for Hardin, having placed one or two fire policies and automobile policies for Hardin. In each instance, the applications brought in by Hardin were handled on a case by case basis, with no agreement with respect to any future applicants.
It is undisputed that neither Hardin, Barron, Ideal Insurance Agency, nor Commonwealth County Mutual Insurance Company, knew that a loss had already occurred at the time the policy was issued. The only agreement prior to the accident participated in by Burch was the agreement between Burch and Hardin. Hardin had no authority to act for and on behalf of Commonwealth. Hardin is not a party to the suit and any recourse Burch has against Hardin is not before this court.
Under the facts, the subject matter of the risk did not exist and was not in being at the time the policy was issued. Chance of loss was precluded by the pre-occurring accident. There was no insurance policy in existence at the time of the loss. At the time of the issuance of the policy, there was no risk and no basis for a valid contract.
"Texas has held, however, that property in esse and chance of loss are necessary elements of a contract of insurance, and it, together with a few other courts, has held that no valid contract of insurance can be made unless the property is in being at that time." 4 Appleman, Insurance Law and Practice, § 2291, p. 145 (1941).
The above quotation is supported by Alliance Ins. Co. v. Continental Gin Co., 285 S.W. 257 (Tex.Com.App., 1926), where the owner of property destroyed by fire accepted a policy after such property was destroyed, without ever having applied for a policy with Alliance Insurance Company, and knew nothing whatever of the so-called issuance of the Alliance policies and binders. Mallard v. Hardware Indemnity Ins. Co., 216 S.W.2d 263 (San Antonio Tex.Civ. App., 1948, no writ hist.); Trinity Universal Ins. Co. v. Rogers, 215 S.W.2d 349 (Dallas Tex.Civ.App., 1948, no writ hist.); United States Casualty Co. v. Rodriguez, 288 S.W. 487 (San Antonio Tex.Civ.App., 1926, writ ref.); and H. Schumacher Oil Works, Inc. v. Hartford Fire Insurance Company, 239 F.2d 836 (5th Cir., 1965) before Chief Judge Hutcheson and Judges Tuttle and Rives.
The question presented by this record is unlike the factual situation prevailing in either of the cases cited in the dissenting opinion. Ours is not a case wherein the authority of an agent to accept notice of cancellation of a policy was denied as in *413 Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W.2d 59 (1958). Nor does our case resemble New Hampshire Fire Insurance Company v. Plainsman Elevators, Inc., 371 S.W.2d 68 (Amarillo Tex.Civ.App., 1963, writ ref. n.r.e.) wherein the local agent had been requested to provide additional coverage before the loss occurred.
Instead, the fact structure of this case is ruled by the holding in Bankers Lloyds v. Montgomery, 60 S.W.2d 201, 202 (Tex.Com.App., 1933, judmt. adopted), wherein Judge Sharp said:
"The courts of this state, as well as the courts of many other jurisdictions, hold that an agent has no authority to issue a policy to cover a known loss * * * [citing many cases] * * *"
The rule has been recognized in Moffett v. Texas Employers' Ins. Ass'n, 217 S.W.2d 142, 144 (El Paso Tex.Civ.App., 1948, no writ):
"An agent, whether he is merely a soliciting agent or a general agent authorized to write insurance and countersign policies, has no authority to cover a preexisting loss. United States Casualty Co. v. Rodriguez, Tex.Civ.App., 288 S.W. 487, Wr.Ref.; Bankers Lloyds v. Montgomery, Tex.Com.App., 60 S.W.2d 201."
See also: United States Fire Ins. Co. of New York v. Fife, 6 S.W.2d 211, 215 (Ft. Worth Tex.Civ.App., 1928, writ dism.) and 44 C.J.S. Insurance § 235, p. 990.
This case has been fully developed and the evidence is undisputed that before the insurance company or any of its agents ever heard of the plaintiff, the loss had occurred. The plaintiff contends that the insurance company should pay him $1,900.00 for his pre-existing loss and retain plaintiff's $72.00 (the premium charged for the coverage involved herein). This result, being incompatible with Texas law, sound insurance practice, and our sense of fairness is not to be permitted.
All points of error are sustained.
Judgment of the trial court is reversed and judgment rendered for appellant cancelling the insurance policy issued to appellee with appellee recovering his premium. All costs are adjudged against appellee.
STEPHENSON, Justice (dissenting).
I respectfully dissent.
At the outset, it must be kept in mind that this was not an action brought to reform an insurance contract because of mutual mistake. There are no pleadings and no evidence even suggesting that the effective date of the policy was the result of mistake on the part of anyone. It is an action to avoid liability upon a contract of insurance issued by a duly authorized agent, because a loss had occurred before the contract of insurance was issued, but after the effective date of the policy.
It is agreed that no misrepresentation and no fraud is involved and that neither Bobby Hardin, acting for Burch in securing the policy of insurance, nor Barron, acting for Ideal Insurance Agency, had any knowledge of the loss at the time it was agreed the effective date of the insurance policy would be 12:01 a.m., July 18, 1967. It is also agreed that this policy was not actually signed until July 19, 1967, after the loss occurred about midnight, July 18, 1967. In other words, the policy showed on its face that even though it was dated July 19, 1967, that it was the intention of the parties to make the effective date July 18, 1967.
The appellant insurance company relies upon the case, Alliance Ins. Co. v. Continental Gin Co., supra, as supporting its contention that the parties to an insurance contract cannot cover a loss which has already occurred because it is against public policy. I do not think the Commission of Appeals in its opinion passed upon the question facing us in the present case. The facts of that case showed the insurance agent wrote a binder October 19, 1920, and then issued a policy October 20, 1920, and the property was *414 destroyed by fire October 20, or 21, 1920. The real question for determination was which insurance policies were in effect at the time of the loss, and the court held the other policies had not been cancelled.
The Court of Civil Appeals decisions cited to us by the appellant insurance company do not pass upon the precise question facing us. In both Trinity Universal Ins. Co. v. Rogers, supra, and Mallard v. Hardware Indemnity Ins. Co., supra, the courts held the insureds had not accepted the renewal policies before the loss. Apparently, the insureds knew of the loss in each case before the attempted acceptance. In United States Casualty Co. v. Rodriguez, supra, both the insured and the agent for the insurance company knew of the loss before the policy was issued.
The Supreme Court of Texas lays to rest the question of an agent's authority in Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W.2d 59 (1958), in which it is written:
"It is undisputed that Howard Williams was licensed by the State of Texas and duly appointed by respondent as its local recording agent. As such, his authority and the extent thereof was controlled by the provisions of the insurance code and his designation as the type of agent prescribed therein. The purpose of the statute was to vest local recording agents with authority co-extensive with that of the company insofar as writing insurance is concerned and to remove all questions of the local agent's actual or apparent authority from the field of cavil or dispute."
Ideal Insurance Agency had the legal authority to issue this insurance policy, and there is no legal prohibition against predating the policy. No attempt was made to conceal the pre-dating, as the policy shows on its face the effective date and the issuance date.
The case of New Hampshire Fire Insurance Company v. Plainsman Elevators, Inc., 371 S.W.2d 68 (Amarillo Tex.Civ.App., 1963, writ ref. n.r.e.) involved a rider on an insurance policy already in existence. The installation of a drier was completed October 31, 1959, the rider was dated November 25, 1959, and made effective November 1, 1959the loss was sustained November 6, 1959. The insurance agent testified someone from insured's office called him before November 6, 1959 for the additional coverage and that he collected a premium from November 1, 1959. The court allowed recovery on the policy, and, after quoting the Shaller case, supra, said:
"It is stated in 44 C.J.S. Insurance § 266, p. 1070 as follows:
"`The effective date of the policy does not depend on the time of delivery if the parties have agreed on another date, and the policy is effective from the time agreed on, although it is not delivered until after loss. When so stipulated, the policy on delivery may take effect as of a previous date.'"
Assuming this insurance agent, Ideal Insurance Agency, had the authority to predate this policy, in the absence of knowledge of a loss or fraud, it is no answer to say the policy took effect July 18, 1967 at 12:01 a.m., unless there had been a loss before the time of actual issuance. It seems to me it would be against public policy to permit an insurance company to collect an insurance premium for a policy of insurance that would be considered in effect only if there had been no loss. What is the purpose of having an insurance policy in effect if there is no coverage? It is also contrary to the contract made by the parties, evidencing a clear intention that coverage be effective at 12:01 a.m., July 18, 1967.
I would affirm the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919815/ | 91 B.R. 1018 (1988)
In re Joe M. SKAGGS, Debtor.
Lena M. SKAGGS, Plaintiff,
v.
Joe M. SKAGGS, Defendant.
Bankruptcy No. 2-87-01683, Adv.Pro. No. 2-87-0213.
United States Bankruptcy Court, S.D. Ohio, E.D.
September 19, 1988.
Robert H. Farber, Jr., Columbus, Ohio, for debtors.
F. Richard Heath, Hite & Heath, Utica, Ohio, for Cambridge PCA.
Frank M. Pees, Worthington, Ohio, for Chapter 13 trustee.
Michelle T. Sutter, Baker & Hostetler, Columbus, Ohio, for trustee.
Charles M. Caldwell, Columbus, Ohio, Asst. U.S. trustee.
Jon M. Cope, Moots, Cope & Kizer Co., L.P.A., Columbus, Ohio, for plaintiff.
Lee C. Mittman, Columbus, Ohio, for defendant.
Thomas C. Scott, Thompson, Hine & Flory, Columbus, Ohio, Chapter 7 trustee.
OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT
R. GUY COLE, Jr., Bankruptcy Judge.
This adversary proceeding is before the Court pursuant to a complaint filed by Lena M. Skaggs, former wife of the debtor, Joe M. Skaggs, seeking a judgment that certain debts arising from the parties' divorce are excepted from the general discharge pursuant to 11 U.S.C. § 523(a)(5). The Court has jurisdiction in this adversary proceeding under 28 U.S.C. § 1334(b) and the General Order of Reference entered in this judicial district. This dischargeability action is a core proceeding which the Court may hear and determine. 28 U.S.C. § 157(b)(1), and (2)(I). The following opinion and order constitutes the Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
I. Statement of Facts
On June 2, 1988, the parties requested the Court to remove this adversary proceeding from the trial calendar and deem it submitted for decision on stipulated facts. *1019 In their motion the parties represented that "there are no material facts in dispute and that the operative facts necessary for decision by the court can be prepared and submitted to the court along with exhibits." Motion at 1. The parties' request was granted by order entered June 7, 1988. On June 23, 1988, the parties filed their "Stipulation of Facts and Submission of Exhibits" ("Stipulations"), which are reprinted verbatim below:
Now comes counsel for Lena M. Skaggs, plaintiff, and counsel for Joe M. Skaggs, defendant, and submit to the Court the following Stipulation of Facts and Exhibits to be utilized by the Court, along with the files and records of defendant's bankruptcy case, [in] this adversary proceedings [sic] and the briefs of the parties in arriving at its decision on the issues presented by the pleadings herein.
STIPULATION
1. The parties stipulate that Joe M. Skaggs and Lena M. Skaggs were divorced October 30, 1979, and the Decree of Divorce is attached as Exhibit "A".
2. The parties stipulate that commencing in January 1986, Joe M. Skaggs was no longer employed for wages; has not been gainfully employed since that time, [sic] and receives a $788.00 per month social security payment.
3. The parties stipulate that Lena M. Skaggs is currently not employed and considers herself at least partially disabled.
4. The parties stipulate and submit to the Court the Certificate of Judgment dated July 25, 1986 (Exhibit "B"), and state that no monthly payments on the $64,300.00 were made by defendant since that time.
5. The parties stipulate and submit the Judgment Entry of the Domestic Relations Court dated April 2, 1987 (Exhibit "C"), and state that the $27,000.00 was applied to the judgment of July 25, 1986.
In addition to the Stipulations, the Court hereby takes judicial notice of certain adjudicative facts set forth in the bankruptcy petition, schedules and statements. The Court finds that debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on April 22, 1987. The Court further finds: (1) that Joe M. Skaggs ("Debtor") claims a permanent disability and a total gross income of $9,456 for the calendar year prior to filing the petition; (2) that Debtor's gross income is composed solely of his $788 monthly social security benefit payments; (3) that, as of the filing of the petition, Debtor claimed no appreciable assets except for patents, copyrights, franchises and other general intangibles, valued at $3,440, as well as 150 shares of Buckeye Federal Savings & Loan stock, valued at $1,950; and (4) that although Debtor's case was initially designated as a "no-asset case," a succeeding Chapter 7 trustee has retained counsel for the purpose of pursuing possible preference and fraudulent transfer claims on behalf of the estate.
II. Discussion
A. Introduction
Plaintiff is asking this Court to declare nondischargeable certain debts arising out of the parties' Agreed Judgment Entry Decree of Divorce ("Decree"), entered by the Court of Common Pleas, Franklin County, Ohio, on November 26, 1979. Plaintiff relies almost entirely on the following language contained under a section of the Decree captioned "Alimony & Other Spousal Support":
It is further Agreed and therefore ORDERED, ADJUDGED and DECREED that the defendant shall pay or cause to be paid to the plaintiff as and for sustenance alimony for the plaintiff's maintenance and support, the sum of Two Thousand Dollars ($2,000.00) per month, payable until the plaintiff's death, remarriage or cohabitation.
It is further Agreed and therefore ORDERED, ADJUDGED and DECREED that the defendant shall pay to the plaintiff as additional support and maintenance and in discharge of any other obligation for spousal support, the sum of Four Thousand Dollars ($4,000.00) per *1020 month for One Hundred Twenty-six (126) consecutive months.
Decree at 3. Thus, the Decree requires the Debtor to pay the Plaintiff, as alimony, maintenance and support, the sum of $2,000 per month (the "$2,000 Award"). The Debtor also is required to pay Plaintiff, as additional support and in satisfaction of any other obligation for spousal support, the sum of $4,000 per month (the "$4,000 Award") for 126 consecutive months. The Decree contains a separate section captioned "Property Settlement," under which other property is divided between the parties.
The issues which this Court must determine in rendering a judgment in this adversary proceeding are as follows:
(1) whether the $2,000 Award and $4,000 Award are in the nature of alimony, maintenance or support,
(2) whether the amount of alimony, maintenance or support awarded, if any, is so excessive that it is manifestly unreasonable under traditional concepts of support; and
(3) if the Court finds that the award is too excessive to be fairly considered in the nature of alimony, maintenance or support, what is a reasonable limit on the nondischargeability of that obligation for purposes of bankruptcy.
Plaintiff claims that the $2,000 Award and $4,000 Award are in the nature of alimony, support or maintenance. So reasoning, the Plaintiff asks the Court to find that the $2,000 Award and $4,000 Award are nondischargeable obligations, as to both the prepetition arrearage and postpetition obligations under the Decree. The Plaintiff further requests that the Court refuse to adjust the amount of the awards provided in the Decree.
Debtor admits that the $2,000 Award represents a nondischargeable debt, but argues that changed circumstances occurring in January 1986 support a finding of dischargeability after that date. Defendant also argues that the provision in the Decree providing for the $4,000 Award represents a property settlement and is, therefore, dischargeable.
B. The Alimony, Support or Maintenance Exception to Discharge
The starting point for the Court's analysis is 11 U.S.C. § 523(a)(5), which provides as follows:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt
. . . .
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that
. . . .
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;. . . .
The legislative history to § 523(a)(5) is unequivocal: what constitutes alimony, maintenance or support will be determined under the bankruptcy laws, not state law. See, H.R.Rep. No. 595, 95th Cong., 1st Sess. 363-364 (1977) and S.Rep. No. 989, 95th Cong., 2d. Sess. 77-79 (1978), U.S. Code Cong. & Admin.News 1978, p. 5787; Singer v. Singer (In re Singer), 18 B.R. 782, 784 (Bankr.S.D.Ohio 1982), aff'd. 787 F.2d 1033 (6th Cir.1986).
The issues presented for determination in this case are controlled by the Sixth Circuit's decisions in Calhoun v. Calhoun (In re Calhoun), 715 F.2d 1103 (6th Cir.1983) and Singer v. Singer (In re Singer), supra. In Calhoun, the debtor husband appealed the bankruptcy court's summary judgment that his assumption of five loan obligations pursuant to a separation agreement between him and his former wife were "in the nature of" support or alimony and therefore nondischargeable debts under 11 U.S.C. § 523(a)(5). The bankruptcy *1021 court had concluded that the language of the separation agreement controlled the issue of dischargeability unless the compelling weight of the evidence suggested that the agreement would work a manifest injustice. The Sixth Circuit disagreed, holding that the bankruptcy court applied an incorrect legal standard by improperly shifting the burden of proof from the plaintiff spouse to the debtor to show that the agreement does not mean what it says or work a manifest injustice. The Sixth Circuit ruled that:
Placing this degree of reliance upon the language of the parties' agreement and placing the burden of persuasion on the debtor are legal errors . . .
715 F.2d at 1111. The Sixth Circuit reversed the judgment of the bankruptcy court and remanded the case for further proceedings consistent with its opinion.
In reaching its decision in Calhoun, the Sixth Circuit articulated a four-part test to assist the bankruptcy court in determining whether an award is a support obligation as opposed to a property settlement. The elements of this four-prong test are as follows:
(1) whether the intent of the state court or the parties was to create a support obligation;
(2) whether the support provision has the actual effect of providing necessary support;
(3) whether the amount of support is so excessive as to be unreasonable under traditional concepts of support; and
(4) if the amount of support is unreasonable, how much of it should be characterized as nondischargeable for purposes of federal bankruptcy law.
Calhoun, 715 F.2d at 1109-1111; Singer 787 F.2d at 1036. Although Calhoun involved a debt-assumption provision in a separation agreement, the language of the court's opinion has general applicability in all cases brought under § 523(a)(5). Singer, 787 F.2d at 1038-39 n. 2.
Both Calhoun and Singer support the unequivocal language of the legislative history concerning the applicability of federal, as opposed to state, law in resolving the support/property settlement dichotomy. Each of these decisions establishes that federal bankruptcy law, not state law, controls the determination of whether a debt is "in the nature of" alimony, support or maintenance. Calhoun, 715 F.2d at 1107; Singer 787 F.2d at 1035. Notwithstanding, the Sixth Circuit has made it clear that the bankruptcy courts should not sit as "super divorce courts." Calhoun, 715 F.2d at 1110 n. 12; Singer, 787 F.2d at 1035. Nevertheless, while state law is not binding, it may provide a useful source of guidance. In re Spong, 661 F.2d 6 (2d Cir.1981); Calhoun, 715 F.2d at 1107-08.
Applying the Calhoun decisional framework, the Court's initial inquiry must be whether the state court or the parties to the divorce intended to create an obligation to provide alimony, support or maintenance. In attempting to ascertain intent, the language of the parties' (or the state court's) characterization of the debt does not control; rather, the plaintiff has the burden to establish nondischargeability. Calhoun, 715 F.2d at 1111 n. 15. Thus, the plaintiff in a § 523(a)(5) dischargeability action has the burden on the issue of intent. If the state court or the parties did not intend to create an obligation to provide alimony, support or maintenance, the inquiry ends there. In making this determination the Court may consider any relevant evidence, including those factors utilized by state courts to make a factual determination of intent to create a support obligation. Calhoun, 715 F.2d at 1109. These factors include:
(1) whether there is an underlying obligation to pay alimony or support in the first instance;
(2) the amount of alimony or support a state court would have reasonably granted;
(3) whether a provision is made for termination of the debtor's obligation upon remarriage of the former spouse or age of majority of the children; and
(4) other factors which might assist the bankruptcy court in discerning either *1022 the underlying purpose of the state decree or the actual intentions of the parties.
See, Calhoun, 715 F.2d at 1107-08.
C. Application to This Proceeding
Plaintiff, in her brief, argues that "there is absolutely no evidence before this Court that would indicate that the intention of the parties was other than to supply support." Brief at 4. However, as the Calhoun court makes clear, the Plaintiff has the burden of proving that there was an intent to create a support obligation. The Court cannot find, on the limited record before it, that the $4,000 Award represents an intent to create a support obligation. In fact, there is no evidence in the record as to the parties' intent or the intent of the state court, except for the inclusion of the $4,000 Award under the section of the Decree that concerns alimony and support. The mere fact that the parties previously designated the $4,000 Award as support, standing alone, simply lacks sufficient probative value to persuade the Court that the parties intended to create a support obligation. The Court must, as Calhoun and Singer instruct, look behind mere designations of parties in determining their intent: the substance of the obligation and the circumstances under which it was created must prevail over labels. Inasmuch as there is no evidence behind the parties' designation of the $4,000 Award, nor any other probative evidence as to intent, the Plaintiff has simply failed to carry her burden of proof on this issue.[1]
Although our inquiry ends here, a further deficiency in the record exists with respect to the issue of whether the $4,000 Award has the actual effect of providing necessary support. While the Stipulations indicate that Plaintiff is currently not employed and considers herself partially disabled, there is no evidence concerning her assets, income, age, education, daily needs, or similar matters which a state court might consider in reviewing a support obligation. The omission of any evidence on this second prong of the Calhoun test further demonstrates the inability of the Plaintiff to meet her required burden.
The final matter for determination by the Court is whether, on a continuing basis, the state court's award of alimony, support or maintenance is manifestly unreasonable under traditional concepts of support. Calhoun, 715 F.2d at 1110. As noted by the Calhoun court, if the circumstances of the debtor have changed from the time the obligation to the former spouse was created so as to make such support now inequitable, the bankruptcy court may consider the debtor's current general ability to pay insofar as it relates to the debtor's continuing obligation. It is not intended that the bankruptcy court sit as a super divorce court; rather, the purpose of such inquiry is to ensure that the degree of support represented, particularly in uncontested cases, does not clearly exceed that which might reasonably have been awarded as support by a state court after an adversarial proceeding. Calhoun, 715 F.2d at 1110 n. 12. The Court's review of the Decree indicates that both parties were represented by counsel, although there is no indication that an actual trial was conducted. It is further clear from the record as a whole that the Debtor, apparently a successful entrepreneur at one time, is disabled now and has as his sole means of support the sum of $778 per month in social security benefits. Obviously, his circumstances have changed from the time he agreed to pay $6,000 per month pursuant to the Decree. It is further clear that his nondischargeable support obligation of $2,000 per month far exceeds his current income. The $2,000 Award is, therefore, manifestly excessive and the Court must set a reasonable limit on it.
On the record as it currently exists, the Court cannot determine, under traditional state law factors, what amount of support *1023 would be reasonable. The Court has no information as to the Debtor's reasonable living expenses, such as the expenses normally included in a monthly budget. Accordingly, the Debtor is hereby ordered to submit a budget of his monthly expenses to the Court, and a copy to counsel for Plaintiff, within fourteen (14) days from the entry of this opinion and order. The Court will review the budget and determine whether, and to what extent, it is appropriate to adjust the $2,000 Award on a prospective basis. In the event the Debtor fails to submit an acceptable budget within the time provided the Court will not disturb the $2,000 Award. The Court further presumes that if the Debtor is able at a later date to pay the entire $2,000 monthly support obligation, the Plaintiff retains the ability to request another adjustment in a court of competent jurisdiction.
In sum, the Court finds that the $2,000 Award is a debt in the nature of alimony, support or maintenance. Further, the Court is unpersuaded that the $2,000 Award should be reduced as of January, 1986. Accordingly, Debtor's obligation under the Decree as to the $2,000 Award is nondischargeable up to the date of filing of the petition. The Court is unable, on the record, to determine the exact amount of that arrearage.
The Court further finds that the Plaintiff has not met her burden to show that the $4,000 Award is in the nature of alimony, support or maintenance and, therefore, finds such obligation to be a dischargeable debt, both as to any accumulated arrearage and Debtor's continuing post-bankruptcy obligations thereunder.
Based upon the foregoing, judgment shall be entered for the Plaintiff for all arrearages as to the $2,000 Award existing as of the filing date of the petition. The remainder of the arrearage, resulting from nonpayment of the $4,000 Award, is hereby discharged as well as Debtor's continuing obligation to make such $4,000 monthly payments. The Debtor's postpetition obligation shall continue as to the $2,000 Award in an amount to be determined based upon the Court's subsequent review of Debtor's budgeted living expenses.
IT IS SO ORDERED.
NOTES
[1] The Plaintiff may have prejudiced herself by failing to include stipulated facts which address the issue of intent, or by agreeing to submit this proceeding on the limited Stipulations which are of record. Had an actual trial been conducted, the Plaintiff probably would have introduced testimony on the issue of intent and perhaps could have met her burden. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2474019/ | 770 F.Supp.2d 45 (2011)
Ernest A. COST, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, Defendant.
Civil Action No. 08-2226 (RWR).
United States District Court, District of Columbia.
March 15, 2011.
*47 Ernest A. Cost, pro se.
Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
Pro se plaintiff Ernest Cost brings a claim against the Social Security Administration ("SSA") under the Social Security Act ("Act"), 42 U.S.C. §§ 301 et seq., seeking judicial review of the SSA's determination of his retirement insurance benefits on the ground that the SSA improperly applied the windfall elimination provision to reduce his benefits. SSA has filed a motion to dismiss, arguing that Cost has failed to exhaust his administrative remedies. Because SSA has not provided sufficient evidence that Cost did not request an administrative hearing, SSA's motion to dismiss, converted to one for summary judgment, will be denied. The parties will be ordered to show cause in writing why the case should not be remanded to the SSA so that the parties can avail themselves of the full administrative review process.
BACKGROUND
In August 2005, Cost applied for Retirement Insurance Benefits under Title II of the Act. (Compl. ¶ 1; Def.'s Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem."), Decl. of Howard Kelly ¶ 3(a).) SSA sent him an initial determination, stating that he would receive benefits of $335 per month. (Compl. ¶ 3, Ex. 3.) Cost sought reconsideration, asserting his entitlement to nearly double the determined monthly benefit. (Id. ¶¶ 3-4, Ex. 4.) On July 10, 2007, SSA issued a reconsideration determination, stating that the initial determination subjected Cost's benefits to the "windfall elimination provision," correctly reducing Cost's benefits. (Id. ¶ 5, Ex. 5.) Cost alleges that he mailed a request for a hearing application form to the SSA on August 22, 2007. (Id. ¶ 6, Ex. 6.) He further alleges that after SSA responded to his letter by faxing him the form, he mailed the completed form to the SSA on September 2, 2007 and has not since received a response. (Compl. ¶ 7; Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n"), Ex. at 5-7.[1]) SSA's computer records do not show that SSA received Cost's request for a hearing. (Def.'s Mem. at 4, Decl. of Howard Kelly ¶ 3(c) ("The computerized records of the Office of Disability Adjudication and Review do not show that a request for a hearing was filed or received [.]"), Ex. 3.) After receiving no response from the SSA, Cost filed suit on December 24, 2008, alleging that the SSA erred by applying the windfall elimination provision.
DISCUSSION
A plaintiff may seek judicial review in a district court of a final decision of the Commissioner of Social Security. 42 U.S.C. § 405(g). The Social Security Act does not define the term "final decision," but it empowers the Commissioner of Social Security to set out the procedures for obtaining a final decision through regulations. See 42 U.S.C. § 405(a); Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). When a claimant applies for social security benefits, the Commissioner *48 makes an initial determination as to the claimant's entitlement. 20 C.F.R. § 404.902. If the claimant is dissatisfied with the initial determination, he may seek reconsideration by filing a written request within sixty days. 20 C.F.R. §§ 404.907, 404.909(a)(1). The reconsideration determination is binding unless a claimant requests a hearing before an administrative law judge ("ALJ") within sixty days of receiving notice of the reconsideration determination.[2] 20 C.F.R. §§ 404.921(a), 404.933(b)(1). If the claimant is dissatisfied with the ALJ's hearing decision, he may request review by the SSA's Appeals Council within sixty days of receiving notice of the hearing decision. 20 C.F.R. §§ 404.967, 404.968(a)(1). A claimant may seek an extension out of time of any of these deadlines by showing good cause in writing. 20 C.F.R. §§ 404.909(b), 404.933(c), 404.968(b). The Appeals Council's decision is considered final, and a claimant may seek judicial review of that decision in district court. 20 C.F.R. § 404.981; Califano v. Sanders, 430 U.S. 99, 101-02, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). SSA has filed a motion to dismiss for lack of subject-matter jurisdiction, arguing that Cost failed to exhaust his administrative remedies because he filed his complaint before receiving a hearing decision from an ALJ or review by the Appeals Council. (Def.'s Mem. at 3.)
The phrase "exhaustion of remedies" refers to two distinct legal concepts. Non-jurisdictional exhaustion "is a judicially created doctrine requiring parties who seek to challenge agency action to exhaust available administrative remedies before bringing their case to court." Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C.Cir.2004); see also Salfi, 422 U.S. at 765, 95 S.Ct. 2457 (justifying non-jurisdictional exhaustion as preventing "interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review"). Jurisdictional exhaustion, on the other hand, entails Congress predicating judicial review on a litigant's initial resort to the administrative process. Id.; cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("[W]hen Congress does not rank a statutory limitation on [the statute's] coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character."). A court may exercise its discretion to excuse compliance with a non-jurisdictional requirement, but not with a jurisdictional requirement. Triad at Jeffersonville I, LLC v. Leavitt, 563 F.Supp.2d 1, 16 (D.D.C.2008).
The Supreme Court has construed 42 U.S.C. § 405(g) as having jurisdictional and non-jurisdictional exhaustion components. The requirement that a plaintiff must first present his claim to the agency is jurisdictional and cannot be waived, while the requirement that the plaintiff must complete the agency review process is non-jurisdictional and may be waived. See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 23, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (noting that "individual hardship may be mitigated... through excusing a number of the *49 steps in the agency process, though not the step of presentment of the matter to the agency"); Bowen v. City of New York, 476 U.S. 467, 483, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) ("`The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary.'" (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976))). A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is inappropriate where a defendant claims that a plaintiff failed to comply with only the non-jurisdictional exhaustion requirement. See Hall v. Sebelius, 689 F.Supp.2d 10, 22 (D.D.C.2009) (noting that "dismissal under Rule 12(b)(1) for failure to exhaust is inappropriate ... inasmuch as requirements for exhaustion as specified by the Social Security Act can be tolled or waived due to equitable considerations"). SSA argues that Cost did not exhaust the non-jurisdictional requirements that his claim be heard by an ALJ and that he receive a decision from the Appeals Council. (Def.'s Mem. at 3.) Therefore, its motion to dismiss will be construed as one under Rule 12(b)(6) for failure to state a claim.
When "matters outside the pleadings are presented to and not excluded by the court" on a Rule 12(b)(6) motion, "the motion must be treated as one for summary judgment under Rule 56." Fed. R.Civ.P. 12(d). A motion may be treated as one for summary judgment even if the parties have not been provided with notice or an opportunity for discovery if they have had a reasonable opportunity to contest the matters outside the pleadings such that they are not taken by surprise. See Highland Renovation Corp. v. Hanover Ins. Group, 620 F.Supp.2d 79, 82 (D.D.C. 2009). Because both parties have cited documents or provided evidence outside the pleadings with respect to the issue of exhaustion, the motion will be treated as one for summary judgment under Rule 56. See Augustus v. Locke, 699 F.Supp.2d 65, 69 n. 3 (D.D.C.2010) (converting motion to dismiss for failure to exhaust administrative remedies to a motion for summary judgment).
Summary judgment may be granted when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). In considering a motion for summary judgment, a court is to draw all justifiable inferences from the evidence in favor of the nonmovant. Cruz-Packer v. Dist. of Columbia, 539 F.Supp.2d 181, 189 (D.D.C.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The relevant inquiry "is the threshold inquiry of determining whether there is the need for a trialwhether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. A genuine issue exists where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party[,]" as opposed to where the evidence is "so one-sided that one party must prevail as a matter of law." Id. at 248, 252, 106 S.Ct. 2505.
SSA contends that it did not receive Cost's hearing request because he mailed it to the wrong address. (Def.'s Mem. at 4.) Cost addressed his August 22, 2007 letter asking for a form HA-501-U5the form used to request a hearing from an ALJto:
*50
CHIEF COMMISSIONER
OFFICE OF INTL OPS
4-C-11 4TH FLR OPS BLD
6444401 SECYRITY BVLVD [sic]
BALTIMORE, MD 21235
(Compl., Ex. 6.) Cost mistyped the building's proper street address of "6401," misspelled "Security," and used a non-standard abbreviation for boulevard. (Def.'s Mem. at 5.) SSA argues that the address Cost used in this letter "is, presumably, the same address that Plaintiff used when he allegedly returned the completed form HA-501-U5 on September 2, 2007[.]" (Id.) However, these errors appear to be typographical, and SSA provides no evidence that Cost made the same mistakes when he addressed his completed hearing request. In any event, Cost claims that his incorrectly addressed August 22 letter reached the SSA, which responded by faxing him the HA-501-U5 form that he completed and attempted to return to SSA. (Pl.'s Opp'n at 2.) This argument is uncontested.[3] Cost has provided a track and confirm receipt, reflecting the delivery of a letter in Baltimore on September 12, 2007. (Pl.'s Opp'n, Ex. at 7.) SSA notes that the receipt is not evidence that the postal service delivered Cost's HA-501-U5 on September 12, but is evidence only that the postal service delivered some letter on that date. (Def.'s Mem. at 5.) While this receipt does not establish definitively that SSA received Cost's hearing request, neither does SSA's evidence establish definitively that Cost failed to request a hearing or mailed the request to the wrong address. This issue presents a genuine material factual dispute that a reasonable fact-finder could resolve in favor of either party.
Assuming that Cost mailed a request for a hearing before an ALJ, however, it is undisputed that he has not received that hearing, nor has he received a decision from the Appeals Council. Cost therefore has not pursued his claim at all requisite levels of the administrative process, and he has not satisfied the exhaustion requirement. See Hall, 689 F.Supp.2d at 23 (finding that plaintiff who "sought an administrative hearing, but received no response from the SSA for approximately three years" had not exhausted his administrative remedies). Instead, Cost's opposition is more appropriately construed as arguing that the exhaustion requirement should be excused for him on the ground that the SSA failed to schedule a hearing before an ALJ, demonstrating the futility of pursuing his case at the administrative level.
"[T]he exhaustion requirement may be waived only in the most exceptional circumstances." UDC Chairs Chapter, Am. Ass'n of Univ. Professors v. Bd. of Trs. of the Univ. of D.C., 56 F.3d 1469, 1475 (D.C.Cir.1995) (internal quotation marks omitted). A court may waive the non-jurisdictional component of the exhaustion requirement in § 405(g) if exhaustion would be futile. See Triad at Jeffersonville, 563 F.Supp.2d at 16. For exhaustion to be futile, there must be a "`certainty of an adverse decision' or indications that pursuit of administrative remedies would be `clearly useless.'" UDC Chairs Chapter, 56 F.3d at 1475 (quoting Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105 (D.C.Cir. 1986)). Requiring exhaustion is clearly useless when there is an undue delay in the administrative proceedings and the plaintiff would suffer prejudice from that delay when seeking subsequent court action. Mobile Exploration & Producing U.S., Inc. v. Babbitt, 913 F.Supp. 5, 14 (D.D.C.1995). Courts in this district have *51 excused the exhaustion requirement for delays in the administrative process of three or more years. See Hall, 689 F.Supp.2d at 23 n. 7 (recognizing that exhaustion requirement could be excused on the basis of the SSA's nearly four-year delay in scheduling an administrative hearing); Angel v. Pan Am. World Airways, Inc., 519 F.Supp. 1173, 1177 (D.D.C.1981) (excusing exhaustion requirement after three-year delay), overruled on other grounds by Paralyzed Veterans of Am., Inc. v. Civil Aeronautics Bd., 752 F.2d 694 (D.C.Cir.1985). However, in Mobile Exploration, 913 F.Supp. at 14, the court held that a contemplated six-year time frame for administrative proceedings would not constitute an undue delay in the absence of any evidence that the agency ultimately would be unwilling to consider the claim, since the plaintiff had not demonstrated that it would suffer prejudice from the delay.
Here, Cost has received half the benefits to which he believes he was entitled during the years since he claims that he requested an ALJ hearing. Arguably, the failure to grant the hearing and the length of time over which the failure has stretched could be evidence that requiring exhaustion would be futile. However, the lack of a hearing here does not stem from SSA's lack of diligence in complying with a hearing request it received. For whatever reason, SSA here never got a hearing request, or so it claims. Nothing in the record suggests that the SSA would be unwilling, after a remand, to consider Cost's claim at the ALJ and Appeals Council stages. Because the facts here do not support the conclusion that requiring exhaustion would be futile, the exhaustion requirement will not be excused. Indeed, a full and fair adjudication of Cost's claims would be best achieved by allowing the SSA an opportunity to correct any of its own errors, and compiling a record which is adequate for judicial review with the benefit of the SSA's experience and expertise. SSA's motion will be denied, but the parties will be ordered to show cause in writing why the case should not be remanded to the SSA for an ALJ hearing.
CONCLUSION AND ORDER
SSA has not demonstrated that no reasonable jury could find that Cost attempted to exhaust his administrative remedies by submitting a request for a hearing before an ALJ. However, Cost has not shown that the subsequent interruption in his administrative proceeding warrants excusing the non-jurisdictional exhaustion requirement. Accordingly, it is hereby
ORDERED that the defendant's motion [10] to dismiss, converted to a motion for summary judgment, be, and hereby is, DENIED. It is further
ORDERED that the parties show cause in writing by April 14, 2011 why the case should not be remanded to the SSA for an ALJ hearing.
NOTES
[1] Cost's exhibit is not paginated. Pagination, therefore, has been supplied.
[2] A claimant may seek judicial review in a district court without completing the remainder of the administrative review process if he requests an expedited appeal and "the only factor preventing a favorable determination or decision is a provision in the law [the claimant] believe[s] is unconstitutional." 20 C.F.R. §§ 404.923, 404.924(d). Cost is challenging not the constitutionality of the windfall elimination provision but rather the provision's applicability to him. (See Compl. ¶ 3.) Thus, he was not entitled to expedited review.
[3] SSA did not file a reply. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566903/ | 255 S.W.2d 765 (1953)
STATE
v.
KORNEGGER.
No. 43326.
Supreme Court of Missouri, Division No. 1.
February 9, 1953.
Motion for Rehearing or to Transfer to Denied March 9, 1953.
*766 Morris A. Shenker, St. Louis, for appellant.
*767 J. E. Taylor, Atty. Gen., E. L. Redman, Asst. Atty. Gen., for respondent.
Motion for Rehearing or to Transfer to Court en Banc Denied March 9, 1953.
CONKLING, Judge.
Under Section 563.160 RSMo 1949, V.A. M.S., the defendant, Melvin Donahew Kornegger, was tried and convicted of the offense of molestation of a certain named minor female child of seven years of age, by the taking of indecent and improper liberties with said minor. He was sentenced to four years' imprisonment in the state penitentiary. From that judgment and sentence he has appealed.
In this court defendant now contends that (1) his motion to quash the information should have been sustained, (2) certain evidence was erroneously admitted, (3) the court erred in suggesting that a portion of the testimony be clarified by asking further questions of one witness, (4) Instruction No. 2 was reversibly erroneous, and (5) that the court erred in failing to instruct on the law of lewd and lascivious conduct, and the law of common assault. Defendant does not here contend that the facts of record as proved by the State are not sufficient to constitute an offense under the statute in question.
From the testimony the jury could have found that on April 17, 1951, the prosecutrix, then a seven year old girl, lived with her parents at 5019a Ulena Street in the City of St. Louis, Missouri; that while she and another child were at play on the sidewalk in the block down the street from her home, defendant stopped his automobile at the curb nearby and called the prosecutrix into his automobile; and that opening his trousers in front defendant exposed his person to prosecutrix and had the prosecutrix perform upon him the certain indecent and improper practices disclosed by the record, the legal sufficiency of which, to constitute an offense under the statute, the defendant does not here question.
Defendant told prosecutrix that his name was Don, and that he would return to that same place the next day. Prosecutrix then got out of defendant's car. Defendant then drove away in his automobile. No one knew who he was. Prosecutrix went home and told her mother what had happened, but could not tell anyone who it was that had so mistreated her. Defendant did not return the next day, but did return on the following day, April 19th. When defendant returned to the same place in the same block on April 19th, the prosecutrix again entered defendant's automobile. Defendant again exposed himself to the prosecutrix. The police came immediately and defendant was arrested and taken to the police station. He there made oral confession as to the above.
Appellant's first assignment of error contends that his motion to quash should have been sustained because the information fails to state an offense under the laws of Missouri, and because the statute in question, Section 563.160, violates Section 2 of Article I of the Constitution, V.A.M.S.
The above contentions must be denied. This statute, enacted in 1949, provides that (1) if any person, in the presence of any minor shall indulge in any degrading, lewd, immoral or vicious habits or practices, or (2) shall take indecent or improper liberties with such minor, or (3) shall publicly expose his person to such minor in an obscene or indecent manner, or (4) shall by language, sign or touching said minor suggest or refer to any immoral, lewd, lascivious or indecent act, or (5) shall detain or divert any minor with intent to do any of the above acts, such person shall be considered as annoying and molesting said minor and be punished as therein provided. The instant information charges that on April 17, 1951, in the presence of the named seven year old minor (prosecutrix) defendant took indecent and improper liberties with said minor by exposing to her his private parts and having her rub the same with her hand and did thus annoy and molest said minor, contrary to statute. It is, of course, true that the defendant in a criminal cause has a constitutional right to demand the nature and cause of the accusation against him, and a criminal statute must be sufficiently clear that there can be no doubt as to when such statute is being violated. But we think the statute in question is sufficiently clear and *768 definite in its terms and prohibitions. And it is our view that the information states an offense under the statute. The statute is in nowise violative of any of the provisions of Section 2, Article I of the Constitution.
In his brief defendant has undertaken a discussion of whether the title of the Act in question complies with the requirements of Section 23 of Article III of the Constitution that the subject of a bill shall be clearly expressed in its title. But in neither his motion to quash the information, nor in his motion for new trial has defendant preserved his right to have that question considered in this court upon this appeal.
Defendant next contends that the circuit court erred in permitting the statement and proof by the State that when the prosecutrix again entered defendant's automobile on April 19th, that the defendant "showed me the same thing over again", that is, that defendant again on that date and occasion exposed his private parts to prosecutrix. Defendant's contention is that the State was thus permitted to make proof of an independent crime as to which defendant was not then charged.
It may be well observed that just two days before, on April 17th, defendant told prosecutrix that he would return to the same place the next day; and that he then drove away in his automobile and neither the prosecutrix, nor anyone else, knew who he was or how to identify him. Defendant did return on April 19th, and he then again committed the identical offense with the identical little seven year old girl, at the identical place the defendant had appointed; and it was then defendant's arrest was effected and his identity established.
Defendant relies upon State v. Lebo, 339 Mo. 960, 98 S.W.2d 695, State v. Palmberg, 199 Mo. 233, 97 S.W. 566, and other similar cases which announce the general rule that proof of the commission of a separate and independent crime by the accused is usually not admissible in evidence upon the trial of a crime separately charged.
That rule, however, is limited by the certain following well-recognized exceptions. Where the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof. State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24. And similarly, the exception is often recognized in prosecutions for crimes involving sexual relations such as adultery, incest, sodomy, seduction, rape and lewdness. State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Henderson, 243 Mo. 503, 147 S.W. 480; State v. Scott, 172 Mo. 536, 72 S.W. 897. In 22 C.J.S., Criminal Law, § 691, page 1160, it is said: "In the case of crimes involving illicit sexual relations or acts, other acts of the same character may ordinarily be shown, not as proof of independent substantive offenses, but as corroborative evidence to show a disposition upon the part of accused and as tending to support the specific offense for which he is being tried." See authorities there cited. See also, State v. Cason, Mo.Sup., 252 S.W. 688, and cases there cited. In State v. King, supra [342 Mo. 975, 119 S.W.2d 283], we held: "In these cases [thereinabove cited] prior (and in some jurisdictions, subsequent) acts of the same kind between the accused and the prosecutrix may be proven as corroborative evidence."
Defendant argues that in State v. Klink, Mo.Sup., 254 S.W.2d 650, this court ruled that intent is not a necessary element of the offense here charged. But we think that under the above stated exceptions, and under the instant circumstances, the above stated events which subsequently occurred on April 19 were clearly admissible to establish not only the identity of the defendant and a common scheme and plan as to this prosecutrix but also as "corroborative evidence to show a disposition upon the part of the accused and as tending to *769 support the specific offense" for which defendant was on trial. The facts and circumstances of record here clearly show a connection between the two offenses. They tend to establish that the person who committed the offense on the 19th of April, when defendant was arrested, must have committed the offense charged in the information to have been committed on April 17th. The contention of defendant is without merit and must be denied.
Defendant next contends the court erred in suggesting to the State's attorney that a certain portion of the testimony of the prosecutrix be clarified by asking her further questions. We have carefully read the entire record. And we have reexamined with great care that portion of the record showing the incident of which complaint is here made. The trial judge conducted this trial with the utmost fairness and marked impartiality. He should have done just exactly that. The record shows that the suggestion of the trial judge that further questions be asked was only for clarification purposes, and none other, and was merely such a suggestion as might have been made by any juror who desired further light upon any fact issue of the trial. The entire incident was such, and was handled in such manner, that it cannot be said that the discretion of the trial judge in such circumstances was in anywise abused. The assignment of error is without merit and must be overruled.
It is next assigned as error in the defendant's brief that Instruction 2 improperly stated the law, commented upon the evidence, and urged the jury to return a verdict of conviction. In his motion for new trial defendant complained that Instruction 2 was erroneous because it "improperly states the law and is not a complete or accurate statement of the law, and for the further reason that it is a comment on the evidence and urges and implores the jury to convict the defendant, and improperly leads the jury to believe that the court feels there is evidence which would justify a finding of guilty of child molestation." The assignment in defendant's motion for new trial is insufficient under the statute, Section 547.030, to preserve anything for our review, except possibly that the instruction is a comment on the evidence. And, as to that one thing, the motion for new trial does not "set forth in detail and particularity" wherein the instruction comments on the evidence and for that reason we should not consider it at all.
But we have nevertheless examined the instruction as to that complaint and find such assignment to be wholly without any merit whatever. Defendant's contentions as to Instruction No. 2 are overruled.
Defendant next contends that in this case, a prosecution under a special statute enacted, for the protection of minors from the various things therein prohibited, the court erred in failing to instruct also upon lewd and lascivious conduct, Section 563.150, and upon common assault, Section 559.220.
But we are not persuaded to that view. This special statute was enacted for the quite plain purpose of protecting minors as a class from any depraved older person who might be inclined to take advantage of and mistreat minors by subjecting them to certain prohibited degrading sexual practices and situations which, if unchecked, inevitably lead children and youth into moral bankruptcy. Quite obviously the General Assembly considered the enactment of this statute to be vital to the public welfare of minors for a violation of the statute was made punishable as a felony. Under these circumstances the two misdemeanor offenses of lewd conduct and common assault do not merge into an offense under the instant statute. It is our conclusion that under these circumstances in a prosecution under this section, defendant is either guilty as charged or he is guilty of no offense at all. And we rule that the trial court did not err in failing to instruct on lewd and lascivious conduct, or upon common assault.
We are in entire accord with defendant's counsel that, "prosecutions upon a charge for which there is a human abhorrence must be conducted with scrupulous fairness so as to avoid adding other prejudice to that which the charge itself frequently produces." *770 We have carefully examined the entire record of this trial and find it free from any error. It abundantly appears that defendant was accorded a fair and impartial trial. His every right under the law was safeguarded and he was ably represented by his counsel.
We have examined the record proper. The information, verdict and judgment are in form and are sufficient. The judgment is responsive. The defendant testified before the jury but upon all the facts and circumstances shown in evidence, the jury returned a verdict of guilty. The punishment the jury assessed is under the maximum fixed in the statute.
The judgment of the circuit court is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566901/ | 140 F.2d 367 (1944)
M. SNOWER & CO.
v.
UNITED STATES.
No. 8382.
Circuit Court of Appeals, Seventh Circuit.
February 4, 1944.
*368 Sewall Key and J. Louis Monarch, Sp. Assts. to Atty. Gen., Austin Hall, Asst. U. S. Atty., J. Albert Woll, U. S. Atty., of Chicago, Ill., Samuel O. Clark and Frederick G. Rita, Dept. of Justice, both of Washington, D. C., for appellant.
W. R. Brown and W. Robert Brown, both of Chicago, Ill., for appellee.
Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.
KERNER, Circuit Judge.
Plaintiff brought this action to recover $45,827.41 alleged to have been paid to defendant as floor stocks taxes and as taxes under § 18 of the Agricultural Adjustment Act, 7 U.S.C.A. § 618.
The complaint alleged that in 1933 the plaintiff paid to the Collector of Internal Revenue $29,477.80 as floor stocks taxes under the Agricultural Adjustment Act and from August 1, 1933 to March 2, 1934, paid to the United States through its vendors $17,430.05 as taxes under § 18 of the Agricultural Adjustment Act. Plaintiff, on June 28, 1937, filed a claim for refund pursuant to Title VII of the Revenue Act of 1936, 7 U.S.C.A. §§ 644, 645, which was rejected by the Commissioner by registered letter dated May 27, 1938. On December 22, 1939, plaintiff filed an amended claim for refund for the same amounts. This amended claim was rejected by the Commissioner by letters dated May 10, 1940.
On May 24, 1940, plaintiff filed its complaint alleging that the burden of said tax payments was borne by plaintiff, no part having been shifted to others, directly or indirectly, and attached thereto the claims for refund which stated that plaintiff had paid the taxes, and an affidavit that plaintiff had borne the burden of the taxes.
Defendant's answer denied that plaintiff had borne the burden of the taxes, and that the claims for refund were properly filed, and as a complete defense, alleged that, on March 14, 1938, the Commissioner notified the plaintiff of a deficiency in its income taxes in 1934 of $6,301.27 and of a deficiency in its excess profits taxes for the year 1934 of $1,608.91. These deficiencies in taxes for 1934 resulted from the addition to the plaintiff's net income for that year *369 of $45,827.41 paid by the plaintiff as taxes under the Agricultural Adjustment Act, which are the identical taxes for the recovery of which this action was brought. On May 27, 1938, the Commissioner wrote to the plaintiff that he had received an agreement, executed by the plaintiff on May 23, 1938, to the effect that in consideration of the settlement of a deficiency assessment of income tax for 1934, plaintiff withdrew its claim and waived all rights to refund of the $45,827.41. "Accordingly," wrote the Commissioner, "the claim is hereby rejected in full." Pursuant to this agreement, the claim for refund was withdrawn and the Commissioner abated the proposed deficiencies. Defendant's answer alleged that by reason of this compromise, this action was barred.
Plaintiff moved for summary judgment upon the ground that by pleading the compromise agreement as a defense, defendant had confessed plaintiff's cause of action to the extent of the amount of the taxes paid under the Agricultural Adjustment Act less the amount of income tax deficiencies asserted by the Commissioner.
Defendant moved for judgment on the pleadings upon the grounds that the complaint did not state sufficient facts to constitute a cause of action; that the District Court was without jurisdiction because the claim for refund was insufficient; and that the compromise was a complete defense.
The District Court granted the plaintiff's motion for summary judgment, holding that the claim for refund was sufficient and that the compromise agreement was entirely ineffective so that plaintiff was entitled to recover the amounts claimed in the complaint, less the amount of the deficiencies in income and excess profits taxes proposed by the Commissioner. 50 F. Supp. 197.
Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that a motion for summary judgment shall be granted only if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Here, the complaint alleged that plaintiff had borne the burden of the taxes in question. This allegation was specifically denied by defendant's answer. Thus there was an issue of fact. That this fact was material can not be denied inasmuch as the statute § 902 of the Revenue Act of 1936, 49 Stat. 1747, 7 U.S.C.A. § 644 makes it a condition precedent to a refund that the claimant establish that he bore the burden of the tax. Because there was such an issue of fact presented by the pleadings, the motion for summary judgment should have been denied. Campana Corp. v. Harrison, 7 Cir., 135 F.2d 334, 335, 336.
Plaintiff's argument on this point, in the District Court, was that, taking the pleadings as a whole, the allegation of the complaint with respect to the burden of the taxes has been admitted. Plaintiff's motion for summary judgment was on the sole ground that the answer admitted that plaintiff was entitled to the refund of the taxes by alleging that the Commissioner proposed to add to plaintiff's income for 1934 the amount of these taxes. And now plaintiff seeks to fortify this argument by urging that defendant, by its motion for judgment on the pleadings, had permanently waived its former denials and admitted the truth of all facts set up in the complaint. We shall analyze the argument in detail.
Plaintiff's first contention is that when both parties move for judgment, it becomes a question of law to be decided on the facts on file, citing Equitable Life Assurance Soc. v. Tucker, 8 Cir., 126 F.2d 396; Hartford Accident & Indemnity Co. v. Flanagan, D.C., 28 F. Supp. 415; United States Trust Co. v. Sears, D.C., 29 F. Supp. 643. An examination of those cases shows that there was no material factual issue involved, as there is in the case at bar, and that in those cases the court was of the opinion that no additional evidence would be adduced at the trial which would be helpful in the disposition of the case. Here, on the other hand, it may be that proof or lack of proof of the basic issue of whether plaintiff bore the burden of the taxes will be determinative. The instant situation is closely analogous to a case in which both plaintiff and defendant have moved for summary judgment when the pleadings presented a genuine issue regarding a material fact. In such a case, no summary judgment of the disputed facts should be granted and the case should proceed to trial. Associates Discount Corp. v. Crow, 71 App. D.C. 336, 110 F.2d 126.
Plaintiff next argues that there is no issue of fact because the defendant by making a motion for judgment on the pleadings has admitted the untruth of its denial of plaintiff's allegation that it bore *370 the burden of the taxes. Two[1] of the three cases cited in support of this proposition give the third, Wyman v. Wyman, 9 Cir., 109 F.2d 473, as authority. This case cites Phenix v. Bijelich, 30 Nev. 257, 95 P. 351, which gives as authority Walling v. Brown, 9 Idaho 184, 72 P. 960, and Idaho Placer Mining Co. v. Green, 14 Idaho 294, 94 P. 161. In all four of these cases, the lower court's action in granting a motion for judgment on the pleadings was reversed by the appellate court. True, they all state the rule that when a party moves for judgment on the pleadings, he not only, for the purposes of his motion, admits the truth of all the allegations of his adversary, but must also be deemed to have admitted the untruth of all of his own allegations which have been denied by his adversary. But they all make it clear that such "admission" is only for the purposes of the motion. In other words, such "admission" is not final, binding, and conclusive in such a way as to amount to a definitive waiver of material facts put in issue by the answer. Instead, the trial may proceed, and the factual issues raised by the answer are then subject to proof. Thus if the court denies a party's motion for judgment on the pleadings, this does not mean that he is precluded from contending that his denials (in his answer) of the allegations in plaintiff's complaint are true. An example may make the point clearer. Take the case of a beneficiary of a life insurance policy suing an insurer: Plaintiff avers in the complaint that all things necessary to be performed under the terms of the policy have been done. Defendant-insurer in its answer alleges that the premium was not paid. Believing that the complaint is defective for failure to state a cause of action, defendant moves for judgment on the pleadings, thus admitting, for purposes of the motion, that the denial, that the premium was paid in its answer, is untrue. However, this does not mean that forever afterward it is precluded from contending that the premium was not paid. On the contrary, if its motion for judgment on the pleadings is denied, the case will proceed to trial, and the plaintiff will not recover if the evidence discloses a nonpayment of the premium. Cf. Geist v. Prudential Ins. Co. of America, D.C., 35 F. Supp. 790. So, in the instant case, the defendant conceded, for the purposes of its motion for judgment on the pleadings, that its denial that plaintiff had borne the burden of the taxes was untrue, but this was done solely for the purposes of the motion. At the trial, if it should appear that the plaintiff has not borne the burden of the taxes, no recovery will be allowed. In short, no permanent waiver of the right to deny that plaintiff had borne these taxes occurred, so there was still a material issue of fact which was not eliminated by defendant's motion for judgment on the pleadings. The other cases which plaintiff cites,[2] hold only that in considering a motion for judgment on the pleadings, facts alleged by plaintiff in its complaint must be taken to be true for the purpose of ascertaining whether the complaint states a cause of action. Thus these cases expressly limit the force of the "admission" inherent in such a motion to the purpose of considering whether a cause of action has been stated. Hence they are in no way inconsistent with our opinion of the effect of such a motion.
Even if the affirmative defense of the compromise agreement was inconsistent with the denials contained in the answer, as contended by plaintiff, the denials were good because alternative and inconsistent defenses may be pleaded. Rule 8(e) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. We find no merit in plaintiff's contention that by the motion for judgment on the pleadings, defendant permanently eliminated one of its inconsistent defenses (its denials) and relied upon its conflicting affirmative defense of the deficiency asserted and compromise based thereon. In our view, the denials were only temporarily shelved, and could thereafter be relied upon if the trial court did not grant its motion for judgment on the pleadings. Thus where a defendant by its denial of allegations in certain paragraphs of a complaint raised an issue of fact, the plaintiff's motion for summary judgment was denied, and, in the same case, there was a trial after defendant's motion for judgment on the pleadings was denied, Phnix Hardware Co. v. Paragon Paint & Hardware Corp., D.C., 1 F. *371 R.D. 116, thus indicating that by its motion for judgment on the pleadings defendant did not waive the right to assert at the trial the truth of its denial (contained in its answer) of plaintiff's allegations.
Finally, the plaintiff argues that the proposal by the Commissioner of a deficiency in the plaintiff's income taxes for the year 1934 involved the conclusive determination that plaintiff was entitled to the refund of the taxes which it seeks to recover in this action, so that plaintiff is entitled to judgment; and that this conclusive determination results from the fact that the answer alleges that the proposed deficiency resulted from the addition of the amount of taxes here involved to plaintiff's income for 1934 upon the Commissioner's assumption that these taxes were refundable in that year.
Since the answer simply alleges that the amount of these taxes was added to plaintiff's income without alleging the reason for the addition, there is no basis for this contention. The amended claim for refund and the preliminary statement attached to the amended claim for refund show that plaintiff never had any idea that such a determination was made. Plaintiff's account of the situation is set forth in this preliminary statement as follows: "The original claim for refund * * * filed by the claimant was withdrawn in accordance with a purported agreement entered into with the Commissioner of Internal Revenue. This original claim was withdrawn and consent given to its rejection due to an erroneous factual belief, held by both the Commissioner of Internal Revenue and the claimant, that the amount claimed therein was due to processing taxes paid during the year 1934 and was therefor taxable as income for the year 1934. * * * The original claim for refund was actually for floor stock taxes paid on cotton articles during the year 1933 (see original or amended claim), not for processing tax paid during the year 1934, and the said agreement was entered into by the claimant and Commissioner of Internal Revenue solely due to and because of this mutual error of fact."
It is apparent from the fact that the deficiency letter was issued on March 14, 1938, the day before the limitation upon the assessment of additional taxes for the year 1934 expired, § 275(a) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 275(a), that the deficiency assessment was proposed by the Commissioner to protect any possible right of defendant to additional taxes resulting from the refund, if the refund had been allowed. This is a well known administrative practice which is necessary to protect the revenue, and the reason for the practice refutes the contention now made that the Commissioner's determination here of a tax liability imports an admission by the Commissioner that plaintiff is entitled to the refund in question. Hence the record does not show an admission that the Commissioner allowed the refund claim.
If the defendant had not made a motion for judgment on the pleadings, it is clear that plaintiff's motion for summary judgment should not have been granted for the reason that the pleadings presented a material issue of fact. Analyzing the effect of the motion for judgment on the pleadings as we do, we conclude that there was still a material issue of fact before the trial court after the motion for judgment on the pleadings had been made. Accordingly, the judgment for plaintiff entered by the District Court on its motion for summary judgment will be reversed, and the cause is remanded for further proceedings consistent with the views herein expressed. It is so ordered.
NOTES
[1] Lackawanna Beef Co. v. Adolf Gobel, D.C., 1 F.R.D. 538; United States v. Hole, D.C., 38 F. Supp. 600.
[2] Art Metal Const. Co. v. Lehigh Structural Steel Co., 3 Cir., 116 F.2d 57; Sullivan v. Northern Pac. Ry. Co., 8 Cir., 104 F.2d 517; Ulen Contracting Corp. v. Tri-County Electric Co-operative, D.C., 1 F. R.D. 284; Geist v. Prudential Ins. Co., D., 35 F. Supp. 790. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566931/ | 255 S.W.2d 848 (1953)
TEXAS EMPLOYERS INS. ASS'N
v.
HATTON.
No. A-3837.
Supreme Court of Texas.
February 11, 1953.
Rehearing Denied March 25, 1953.
Burford, Ryburn, Hincks & Ford and Logan Ford and Clarence A. Guittard, Dallas, for petitioner.
Sam Holland, Athens, White & Yarborough, Dallas, Donald V. Yarborough, Dallas, for respondent.
CULVER, Justice.
In this workmen's compensation case the issue, rather sharply drawn, was whether the concededly serious injury suffered by respondent was confined to his foot and leg or as contended by respondent affected adversely other parts of his body, principally his back and hip, by reason of which he claimed total and permanent disability.
Based on the jury's verdict favorable to respondent, judgment was rendered against petitioner, Texas Employers' Insurance Association, for 208 weeks of total incapacity at the rate of $25 per week and for 193 weeks of 75% permanent partial incapacity at the rate of $22.50 per week. This judgment was affirmed by the Court of Civil Appeals, and writ of error has been granted. 252 S.W.2d 754.
At the beginning of the trial the petitioner, conceding that the pleading and evidence would sustain the award of a "lump-sum" recovery, moved the Court to instruct counsel not to read to the jury that portion of his petition setting out such fact allegations, one of which being that a contract had been made with respondent for a third of the recovery to be paid as attorney's fees. This motion was sustained.
*849 Petitioner then moved the Court to instruct respondent's attorney not to read to the jury that part of the petition which followed and which reiterated the contract for attorney's fees. This motion was overruled and the allegation was read to the jury. We are of the opinion that this action on the part of the trial court was error.
Under no theory was it pertinent to advise the jury that the plaintiff, by reason of the contract made with his attorney, would eventually receive only two-thirds of whatever award might be made. The amount of attorney's fees to be allowed in a compensation case is exclusively for the court and not the jury, and any such contract was made subject to the approval by the court. The court in his discretion could award a lesses amount. Vernon's Ann.Civ. St. art. 8306, § 7d; Texas Employers' Insurance Ass'n v. Lane, Tex.Civ.App., 124 S.W.2d 893; Texas Indemnity Insurance Co. v. Bush, Tex.Civ.App., 163 S.W.2d 224.
Respondent, insisting that the action of the court was proper, cites the case of Employers' Liability Assurance Corporation v. Sims, Tex.Civ.App., 67 S.W.2d 445, error refused; Houston Fire & Casualty Insurance Co. v. Ford, Tex.Civ.App., 241 S.W.2d 158, N.R.E. In both of those cases the issue of lump-sum award was before the jury for decision, and the element of attorney's fees was properly to be considered by the jury on that issue. Consequently these cases are not in point here.
The Court of Civil Appeals justifies the reading of this allegation by invoking Rule 265, Texas Rules of Civil Procedure. We believe the purpose of the rule is no more than to set forth the order in which the different steps of a jury trial are to be taken generally. It has no application at all to the point raised here. Johnson v. Willoughby, Tex.Civ.App., 183 S.W.2d 201, error refused.
It has been held by this court that a discussion of attorney's fees by the jury is material misconduct and will justify reversal. White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200; Texas & P. Ry. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307; St. Louis Southwestern Ry. Co. v. Lewis, Tex. Com.App., 10 S.W.2d 534; Texas & P. Ry. Co. v. Mix, Tex.Civ.App., 193 S.W.2d 542.
Respondent argues that these cited cases involving suits for damages at common law would not be applicable to this suit brought under the workmen's compensation law. We are able to perceive no difference in the principle involved. The same calculated influence brought to bear and such information given to the jury seems to us to be just as effective in a compensation case as it would be in a damage suit. In this case there was no inadvertent reference to attorney's fees, no instruction by the court to disregard the same, but on the other hand the contract for attorney's fees was read with the express approval and permission of the court.
The application of the rule contended for by respondent would compel the reading to the jury of those purely jurisdictional allegations concerning the prior submission of the claim to the Industrial Accident Board and its award, which clearly are not permitted to be revealed to the jury. Fidelity Union Casualty Co. v. Cary, Tex. Com.App., 25 S.W.2d 302; Texas Employers' Insurance Ass'n v. Downing, Tex. Civ.App., 218 S.W. 112. Writ refused; Employers' Liability Assurance Corporation v. Young, Tex.Civ.App., 203 S.W.2d 822.
In our opinion this error was reasonably calculated to create a greater sympathy for respondent, to influence the jury to make a larger award than it would otherwise have made, and thus cause the rendition of an improper judgment in this case. Rule 503, Texas, Rules Civil Procedure; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191.
On the second point we agree with petitioner that the trial court erred in refusing to permit its medical witness to manipulate respondent's foot in an effort to show that there was no loss of motion as claimed. Respondent, while on the stand in the presence of the jury and at the suggestion of counsel, removed his shoes and socks and demonstrated to the jury he could not depress his foot below a horizontal position. Petitioner then sought to have its *850 medical witness, by taking hold of the foot, to show that the member could be raised and lowered from the horizontal position. The objection made by respondent's counsel and sustained by the court is as follows:
"We object to try to have a medical examination made here because the law provides a method and a way and we want our rights under the law.
"We have no objection to the doctor's testifying about it, but if he goes to touch him we object."
Petitioner contends that when the injured part has been bared and exhibited to the jury, in effect it was introduced in evidence and accordingly an examination and demonstration should have been permitted then and there. The rule is well stated in Kenney v. La Grone, Tex.Civ.App., 62 S.W.2d 600, citing Chicago, R. I. & T. Ry. Co. v. Langston, 19 Tex. Civ. App. 568, 47 S.W. 1027, affirmed 92 Tex. 709, 51 S.W. 331, and many other authorities. While these cases deal with the right of an examination in the presence of the jury, nonetheless we think the holdings clearly encompass the right of the demonstration sought to be performed here. Respondent contends that this was in effect an attempt on petitioner's part to have a physical examination made and to accomplish this he should have availed himself of the provisions of Vernon's Ann.Civ.St. art. 8307, § 4. This contention was sustained by the Court of Civil Appeals.
Under the circumstances here we do not think this provision has any application. An examination had already been made by this doctor and he was attempting here to demonstrate what he claimed his previous examination revealed, namely, that there was little loss of motion and that the foot could be manipulated up and down from the ankle joint.
Respondent argues that even had the doctor been able to raise and lower the foot, and had he been permitted to demonstrate this fact to the jury it would have had no weight or bearing for the reason that it would not tend to show that respondent himself had such muscular control over the movement of his foot. We think a fair appraisal of the respondent's testimony would indicate a rigidity or stiffness in the ankle joint caused by a fusion of the bones rather than a muscular failure. At least the demonstration such as the doctor asserted could have been made would tend to show that there was no such stiffness or rigidity. There was no assertion or objection that such pressure as the doctor might apply would cause any discomfort or pain and no reason is shown why the privilege of this demonstration should have been refused.
By reason of the error in permitting the contract for attorney's fees to be read to the jury, the judgments of the trial court and Court of Civil Appeals are reversed and the cause remanded to the district court for another trial.
SMITH, J., dissenting.
CALVERT, Justice (concurring).
The majority of the court by the opinion written by Justice Culver sustains the petitioner's first two points of error, thereby holding that each of the rulings therein complained of was erroneous.
I agree that the cause should be remanded but only because of the error complained of in the first point.
I do not regard the ruling complained of in the second point as erroneous. The point of error is set out in order to bring it under closer analysis:
"The Court of Civil Appeals erred in holding that the trial court had discretion to refuse to permit defendant's medical witness to demonstrate the freedom of movement in plaintiff's toes, foot and ankle by manipulating same in front of the jury after plaintiff had waived his immunity by voluntarily exhibiting his foot to the jury and attempting to demonstrate the loss of motion therein."
It will be noted that petitioner does not complain that it was denied the right to a reasonable examination of respondent's foot, as indeed it cannot as will later be seen; its claim of error rests entirely upon its demand to "demonstrate" the flexibility of respondent's toes, foot and ankle by "manipulating" them "in front of the *851 jury." The theory upon which the right is demanded to demonstrate to the jury the extent of respondent's injury by manipulating his injured foot is this: By exhibiting his foot to the jury the respondent waived the inviolability of his person, and the foot being thus offered in evidence, the petitioner had the right, as by way of cross-examination, "to make such further exhibition of it as may have been relevant to the issues in the case," including the right to "manipulate" it before the jury. No case so holding has been cited by petitioner, none has been cited in the majority opinion, and none has been found by the writer after extended research. Moreover, such a holding is directly contrary to the spirit underlying the cases relied on by petitioner and by the majority.
Petitioner contends that the right asserted is governed and controlled by rules of common law and I will first examine the problem in the light of such rules.
It is well established in the jurisprudence of this state that in the absence of a statutory requirement to the contrary, an injured litigant cannot be compelled to submit himself or his injured parts to an examination by his adversary or even by an impartial examiner. A contrary rule prevails in some states and was once urged upon the courts of this state, but it was rejected by this court in a forceful opinion by Judge Brown in the case of Austin & N. W. R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 407, 64 L.R.A. 494, 104 Am. St. Rep. 863, 1 Ann.Cas. 261. In that case this court recognized a division of authority on the question, analyzed the leading cases representing the two points of view, and said: "It is sufficient to say for the courts of Texas that the authority to order such an examination and force a party to submit to it is found neither in common law nor in the statute laws of this state, and therefore does not exist and cannot be exercised by the courts of Texas."
The rule of the Cluck case has never been repudiated and in keeping with and to preserve the spirit of that decision it has been held that the injured party does not lose his immunity from involuntary examination merely because he points out to the jury the part of his body that has been injured or in which he suffers pain. Texas Electric Ry. Co. v. Rowell, Tex.Civ.App., 211 S.W. 788, writ dism.; Safeway Stores, Inc., of Texas v. Rutherford, Tex.Civ.App., 101 S.W.2d 1055, affirmed 130 Tex. 465, 111 S.W.2d 688. Moreover, a Rule requiring examination at one time adopted by this court was subsequently repealed.
But petitioner contends that the courts have established an exception to the rule of the Cluck case, which exception required the trial court to permit petitioner to demonstrate in the presence of the jury the condition of respondent's foot by manipulating it. In support of its position petitioner cites the following cases, some of which are relied on by the majority for sustaining petitioner's contention: Chicago, R. I. & T. Ry. Co. v. Langston, 19 Tex. Civ.App. 568, 47 S.W. 1027, on motion for rehearing, 19 Tex.Civ. 585, 48 S.W. 610, certified questions answered, 92 Tex. 709, 50 S.W. 574; 92 Tex. 714, 51 S.W. 331; Houston & T. C. R. Co. v. Anglin, 99 Tex 349, 89 S.W. 966, 2 L.R.A.,N.S., 386, Galveston, H. & S. A. Ry. Co. v. Chojnacky, Tex.Civ.App., 163 S.W. 1011, no writ history; Bower v. Lively, Tex.Civ.App., 11 S.W.2d 556, no writ history; Panhandle & S. F. Ry. Co. v. Sedberry, Tex.Civ.App., 46 S.W.2d 719, no writ history; Haynes v. Town of Trenton, 123 Mo. 326, 27 S.W. 622. In addition, the majority opinion cites the case of Kenney v. La Grone, Tex.Civ. App., 62 S.W.2d 600, affirmed 127 Tex. 539, 93 S.W.2d 397.
The foregoing cases undoubtedly announce an exception to the rule of absolute immunity laid down by the Cluck case, but I cannot agree that the exception is as broad as petitioner contends. The cases most certainly do not expressly hold, and I cannot read into them a holding, that by exhibiting his injured parts to the jury the litigant loses not only his immunity from examination by the opposite party, but, in addition, under a theory of cross-examination, authorizes the opposite party to conduct that examination in the presence of the jury, with the right to manipulate and experiment as well. I cannot agree with petitioner in its conclusions expressed *852 as follows: "Plaintiff cannot waive his privilege as against a visual examination and still insist on it as against an examination by manipulation or other appropriate means. * * * The doctor cannot be limited to a visual examination, but must be allowed to apply whatever tests he considers to be reasonably necessary to determine the true nature and extent of the claimed disability."
The principal Texas case on which petitioner relies is Chicago, R. I. & T. Ry. Co. v. Langston, supra. That case was decided by a divided court and the dissent by Justice Hunter is not without force. However that may be, the majority view was adopted and approved by the Supreme Court and the exception to absolute immunity was created. What did the court say the exception was? The nature and extent of the exception is found in the language of the court, later quoted with approval by this court in Houston & T. C. R. Co. v. Anglin, supra, as follows, 89 S.W. 967: "But, inasmuch as appellee invited an inspection and examination of her wounded limbs by making profert of them on the trial, * * she thus waived her right to object, upon the ground of an invasion of her right of personal security, to a reasonable and proper examination, under the direction of the court of the wounded parts. She thus, by her own voluntary act, conferred upon the court jurisdiction to compel what otherwise she might have refused to submit to." Does this language say that by exhibiting her wounded legs the plaintiff proffered them in evidence with the resulting right in the defendant, as by way of cross-examination, to apply in the presence of the jury "whatever tests it considers to be reasonably necessary to determine the true nature and extent of the claimed disability," including the manipulation of the foot? It certainly says no such thing and the language of the court is too simple, clear and plain to be made to say it by construction or inference.
In the Langston case the defendant demanded the right to have the plaintiff's legs examined by its physicians, at one point in the proceedings suggesting that it be done "`here and now'". [19 Tex. Civ. App. 568, 47 S.W. 1029.] The plaintiff resisted the defendant's motion, although agreeing to an examination by disinterested medical witnesses. The trial court's action in overruling the defendant's motion was held to be error but the language of the Court of Civil Appeals in so holding is worth noting. It said: "the objection made by appellee's counsel should have been overruled, and the witnesses permitted then and there, or at such other reasonable time and place as the court might appoint, to make the proposed examination, and give the result of it to the jury."
In the Anglin case this court simply reaffirmed the rule of the Langston case, saying: "The rule acted upon in that case that, where a party has once exhibited his person to the jury to show the extent of his injuries, he may be required during the course of the trial to re-exhibit them, has never been modified by this court." This is a far cry from saying that once a person has exhibited his injury he must, in the presence of the jury, submit to such manipulations as are reasonably necessary to show the nature and extent of his injuries.
Galveston, H. & S. A. Ry. Co. v. Chojnacky is authority for no more than that immunity being waived the right of examination exists and the court approved the language of the Langley case that this right was "to a reasonable and proper examination, under the direction of the court". [163 S.W. 1012.]
In Bower v. Lively, supra, the only holding was that by his exhibition of his injured eye the plaintiff lost his immunity from examination by the defendant.
In Panhandle & S. F. Ry. Co. v. Sedberry, supra, plaintiff exhibited his injured foot to the jury and the Court of Civil Appeals held that the trial court "should have granted the defendant the right to have the injured member examined under proper circumstances by physicians of the defendant's selection." [46 S.W.2d 720.] There was no holding here of the right to manipulate in the presence of the jury.
In Kenney v. La Grone, supra [62 S.W.2d 601], the plaintiff exhibited her injuries to the jury and the defendant assigned *853 error to the refusal of the trial court "to grant appellant's motion to compel appellee to submit to a physicial examination by doctors of appellant's selection". The court recognized the general rule of immunity from involuntary examination but recognized also that this immunity was lost to one who voluntarily exhibited his injuries to the jury. "In such case, speaking generally," said the court, "the defendant may properly demand that the plaintiff submit to reasonable examination by reputable physicians of defendant's selection * * *."
We come now to consider the Missouri case of Haynes v. Town of Trenton, supra. It is one of the principal authorities upon which petitioner relies. In that case a judgment in favor of the plaintiff was reversed and remanded by the Supreme Court of Missouri on grounds that did not deal at all with the problem here under search. The opinion of the court was written by Justice Barclay and Chief Justice Black and Justice Brace concurred in the judgment and in that opinion. In a separate concurring opinion, not joined in by any of the other justices and therefore not the opinion of the court, Justice McFarlane expressed the view that the trial court had also erred in refusing to require the plaintiff, whose leg had been exhibited to the jury, to submit the leg for further examination to defendant's physicians who had previously examined it. There is language in the opinion to the effect that "The question was not as to the right of defendant to have an examination of the injuries made, but as to the right to test the effect and reduce the weight of evidence introduced by plaintiff." [123 Mo. 326, 27 S.W. 624.] Aside from the fact that the views expressed did not represent the opinion of any court, the question was in fact one involving only a right of examination, not of experiment, and there is nothing in the opinion to show that the examination was to be conducted in the presence of the jury.
An analysis of petitioner's authorities fails to furnish support for the majority holding that because the respondent exhibited his foot to the jury the petitioner thereby became entitled, as a matter of right, to manipulate the foot in the presence of the jury. As a matter of fact, petitioner's own cases indicate exactly the contrary as the foregoing analyses show beyond doubt. There are other cases which buttress the conclusion that an injured party who does no more than exhibit his injured member to the jury thereby confers upon the opposite party only the right to require another exhibition thereof so that such party may make a like examination in the presence of the jury, with the right to have such further reasonable examination thereof as the trial court in its discretion may permit and direct. It will be well to refer to some of these cases.
In the case of St. Louis Southwestern Ry. Co. v. Smith, 38 Tex. Civ. App. 507, 86 S.W. 943, 945, no writ history, decided after and in the light of the Langston case, the court said: "But we are inclined to the opinion that if the appellee exhibited his eye to the jury, and his physician then and there undertook, while testifying, to point out the injury to appellee's eye, appellant was entitled in rebuttal thereof to call medical experts of its own selection to in like manner examine the eye, and give in testimony their opinion as a result of such examination."
In the case of International & G. N. Ry. Co. v. Bartek, Tex.Civ.App., 177 S.W. 137, affirmed Tex.Com.App., 213 S.W. 602, it was held that the trial court did not err in refusing to require a plaintiff, who exhibited his back to the jury to which both his own and the defendant's medical witnesses pointed in connection with their testimony, to submit to a doctor of the defendant's selection for the purpose of having X-rays of the back made, particularly since he had agreed to have X-rays made by another competent and disinterested expert.
In the case of Chicago, R. I. & G. Ry. Co. v. Pemberton, Tex.Civ.App., 170 S.W. 108, writ refused, in which the plaintiff exhibited his knee to the jury in such manner that the jurors could hear the grating sound in the joint when the knee was moved, it was held that the trial court did not err in refusing the defendant's request to require the plaintiff to submit, under *854 anaesthetic, to examination of the knee by defendant's experts. A like holding was made in the case of Mackay Telegraph-Cable Co. v. Armstrong, Tex.Civ.App., 241 S.W. 795, 797, writ dism., in which the plaintiff, having made profert of his injured knee, the defendant demanded the right to have the plaintiff placed under an anaesthetic, laughing gas, while its medical experts examined the knee. The refusal of the demand was held not to be error, the court saying: "No such assault as that contended for by appellant will be permitted in any Texas court on the personal liberty of a citizen of this commonwealth."
I have found no case that treats the defendant's right of examination growing out of the plaintiff's loss of immunity therefrom as a "right of cross-examination." The courts do not treat the problem in that light. This is illustrated by the Illinois case of Wheeler v. Chicago & W. I. Ry. Co., 267 Ill. 306, 108 N.E. 330, 339, where it is said: "It is further insisted that the court erred in refusing to allow the defendants' physicians to examine the plaintiff's leg in the presence of the jury; the argument being that, since the plaintiff exhibited the injured member to the jury, the defendants' physicians had a right to make a physicial examination of the leg then, the same as they would have to examine any other exhibit in the case. It does not appear from the record that any examination of plaintiff's leg was made in the presence of the jury, other than the mere exhibiting of the same to the jury. We do not think the mere showing of the injured member to the jury gave the defendants the right to invade the privacy of plaintiff's person and make him submit to an extended scientific examination of the same in the presence of the jury." So, also, one of our own courts, in the case of San Antonio & A. P. Ry. Co. v. Stuart, Tex.Civ.App., 178 S.W. 17, 18, 21, writ refused, has said: "It would be better in most cases to have the jury withdrawn while the examination is being made".
Another case graphically illustrating that the problem is not one of scope of examination and cross-examination of a witness is the case of Peters v. Hockley, 152 Or. 434, 53 P.2d 1059, 103 A.L.R. 1347. In that case the plaintiff was asserting the right to have a demonstration made in the presence of the jury as a part of her right of cross-examination of the defendant's medical witness. Although it would appear that the demonstration made was well within the general scope of cross-examination in that it had a tendency to break down and minimize the effect of the doctor's testimony, it resulted in outcries of pain by the plaintiff and it was held to be reversible error.
Thus far the question presented has been dealt with as though it arose in the course of the trial of a common law negligence suit and therefore as though it were governed by rules of law applying in such cases. Treating the problem thus, I have reached the following conclusions from the cases examined: (1) The injured party has absolute immunity from any type of involuntary examination by the opposite party or his representatives. (2) This immunity is lost if in the course of trial the plaintiff exhibits the injured part of his body to the jury. (3) The loss of immunity does not arise out of the right of cross-examination with the ensuing right in the defendant to conduct in the presence of the jury all such examinations, manipulations or other such experiments on the body of the plaintiff as are necessary to destroy in the minds of the jury the evidentiary value, if any, of the exhibition. (4) The loss of immunity invests the defendant with the absolute right to make in the presence of the jury the same general type of exhibition or examination as has been made by the plaintiff. (5) The loss of immunity also invests the defendant with the right to make such further examination as is reasonable under the circumstances, preferably out of the presence of the jury, the time, place, nature and extent of such further examination, however, to be fixed by the trial judge, his action in that respect being error only upon a showing of clear abuse of discretion.
Under the common law rules just enumerated it was not error for the trial court in this case to refuse to permit the petitioner's medical witness to manually manipulate *855 respondent's foot. Respondent had merely exhibited his foot to the jury, indicating the extent to which the front of the foot could be depressed by muscular control. The demonstration which petitioner wished to conduct was not in like manner with the demonstration made by respondent. As a matter of fact, respondent's counsel offered to have and did have respondent re-exhibit the foot so that petitioner's medical witness could testify with respect to his previous examination thereof and from a visual examination thereof. Moreover, the respondent was required to pull off both shoes and socks, to roll his pants legs up to the knees, to stand in the presence of the jury and to turn around in the presence thereof so that petitioner's medical witness could testify with greater clarity with respect to the condition of the injured foot as compared with the other foot. Respondent insisted, however, that defendant's medical witness should not undertake to manually manipulate the foot in the presence of the jury, the while offering, nevertheless, to have respondent submit to such a general examination out of the presence of the jury. The trial judge, in the exercise of his discretion, overruled the request of the petitioner, in effect holding that he would permit the type of examination requested only out of the presence of the jury. Under the many authorities heretofore cited the ruling of the court in this respect was obviously not an abuse of discretion.
That the time and place of the type of examination sought should be left largely to the discretion of the judge who has the parties and the emotional factors before him can be illustrated from the facts of the instant case. Suppose the manipulation experiment had been permitted, and the respondent, not wishing to be made the subject of the experiment in the presence of the jury, had, through muscular control, made it impossible for the doctor to bend his foot or his ankle except by unusual effort or exertion? Or suppose, having relaxed his muscular control, the respondent had suddenly cried out as though in pain, there being no one in the courtroom who could know or say whether the pain was real or simulated, actual or feigned? It is not a question of whether petitioner should have been permitted to run this risk at its own request; it is a question of whether the court should have been required to incur the risk of such a disturbance of orderly trial processes and courtroom decorum.
In actuality, this was not a trial of a common law negligence case; it was a trial of a workmen's compensation case. In compensation cases the injured party has lost his right to immunity from involuntary examination through statutory provision. Article 8307, § 4, provides that the Industrial Accident Board "may require any employee claiming to have sustained injury to submit himself for examination before such Board or someone acting under its authority at some reasonable time and place within the State, and as often as may be reasonably ordered by the Board to a physician or physicians authorized to practice under the Laws of this State." It is further provided that if the employee or the insurer requests, "he or it shall be entitled to have a physician or physicians of his or its own selection present to participate in such examination." It is held that when a compensation case reaches court, the court has the same power as the Board to require a physical examination. Indemnity Ins. Co. of North America v. Murphy, Tex.Civ.App., 53 S.W.2d 503, no writ history. Accordingly, when a compensation claimant becomes a witness in a case he has already lost his immunity from involuntary examination and a display of his injured member can have no effect on his rights in that respect. The only right that the insurer can acquire from a mere exhibition of the injured member in the courtroom is to have another exhibition of it for its benefit. If the insurer wishes a more extensive type of examination the statute specifically empowers the court to order it at a reasonable time and place, with both parties to the suit having the right to be represented at such examination by physicians of their own selection.
When petitioner in this case demanded to have respondent's foot manually manipulated by its physician, respondent's counsel agreed to the examination provided it was *856 made in keeping with the statute, out of the presence of the jury, and with respondent having the right to have a physician of his own choice present at such examination. The law certainly clothed the court with power to order the examination in keeping with the statute, and petitioner could not, as a matter of right, demand more. The same statute which has taken from the injured workman his common law immunity from involuntary examination has marked out in certain respects the manner in which that examination shall be conducted, and has entrusted to the discretion of the Industrial Accident Board and of the courts the duty of fixing the time and place of the examination. The very witness involved had twice before examined the respondent, the first time two days after the accident and the last about a month before the trial. The record indicates that even a third examination might have been had in keeping with the terms of the statute but petitioner insisted on its right to have the doctor "exhibit to the jury and demonstrate the motion and lack of motion and limitation, if any" in the foot. Neither the statute nor the rules of common law required that the demand be granted.
From the standpoint of the practical effect of our ruling on petitioner's second point of error the importance of the matter hardly justifies the length of this opinion. The inherent risk and danger to the defendant from experimenting with the plaintiff's injured parts in the presence of the jury will likely make the demand for that right rare indeed. On the other hand, the radical departure made by the majority holding from the settled rules of law applicable to such demands justifies, in part at least, this review of the nature of the problem involved.
Petitioner's second point of error ought to be overruled.
SMEDLEY, J., joins in this opinion.
SMITH, Justice (dissenting).
I cannot agree to a reversal of this case, and, therefore, respectfully register this dissent.
Respondent filed this suit November 10, 1950, alleging that he was a minor 19 years of age and sustained an injury on November 29, 1949, while in the course of his employment with the Keetch Metal Works, Inc. Paragraph 10 of his petition alleges that hardship and injustice would result unless the compensation due him is paid in a lump sum, and one of the reasons was that he had contracted and agreed to pay his attorneys one-third of any recovery which might be awarded.
Paragraph 11 contains the usual allegations as to employment of attorneys, the necessity therefor and his agreement to pay his attorneys one-third of any recovery. On December 1, 1950, petitioner filed its Original Answer containing two special exceptions. Special Exception Number One reads as follows:
"Defendant moves the Court to prohibit the plaintiff from reading to the jury the allegations in Paragraph 10 of said petition, wherein plaintiff seeks to recover a lump sum award, and for the purpose of this motion, defendant stipulates that, in the event plaintiff receives a total and permanent award, defendant will pay same in a lump sum; consequently, in view of the stipulation aforesaid, the allegations of manifest hardship and injustice are not material or relevant to any issue in the case, and to permit same to be read to and considered by the jury would cause or have a tendency to cause the jury to find a greater disability for a longer period of time than the facts otherwise warrant, and consequently, the reading of said allegation to the jury is and will be prejudicial to this defendant and, of the foregoing motion, defendant prays judgment of the Court."
The trial court sustained this exception to which action the plaintiff excepted, and paragraph ten was not read to the jury, no evidence was introduced and no issue was submitted on the question of lump sum award.
Special Exception Number Two reads as follows:
*857 "Defendant moves the Court to prohibit plaintiff from reading to the jury the allegations in Paragraph 11 and else where in said petition, wherein plaintiff alleges the employment of an attorney and agreement to pay him one-third of any recovery herein, for the reason that same is not a controverted fact between plaintiff and defendant, and is not an issuable fact to be submitted to the jury and its sole and only province is a jurisdictional one to enable the Court as distinguished from the jury to fix a reasonable attorney's fee; and to permit same to be read to and considered by the jury would cause or have a tendency to cause the jury to find a greater disability for a longer period of time than the facts warrant, and to read same to the jury is therefore prejudicial to this defendant; and for the purpose of this motion, defendant stipulates that, in the event of a total and permanent award, defendant will pay same in a lump sum, and of the foregoing motion, defendant prays judgment of the Court."
This exception was overruled and paragraph 11 was read to the jury. It will be noted that in passing on Special Exception Number Two, the trial court had before it the contention that paragraph 11 should not be read to the jury for the reason that the matter of attorney's fees was a jurisdictional question, and its only purpose was to enable the court and not the jury to award a reasonable attorney's fee, and the further contention that "to permit same to be read to and considered by the jury would cause or have a tendency to cause the jury to find a greater disability for a longer period of time than the facts warrant, and to read the same to the jury is therefore prejudicial to this defendant * * *." (Emphasis added.) In the first place, the issue of attorney's fees is not a jurisdictional question, and in the next place, the record in this case does not support the contention that the jury awarded the respondent a greater period of disability than the facts warranted. The court in its charge instructed the jury, "During your deliberations on this case, you will not consider, discuss or relate any matters not in evidence before you, and you will not take into consideration the effect your answers may have on who wins or loses the case, but merely answer the questions as you may find the facts from the evidence before you and under the definitions and instructions given you herein."
This Court, in the case of Gillette Motor Transport Co. v. Whitfield, 145 Tex. 571, 200 S.W.2d 624, 626, said:
"Presumably, the jury understood and followed the instructions of the court. (Authorities cited.) And, if so, they considered only that which it was proper for them to consider and the defendant suffered no injury. We cannot presume that the jury misunderstood and misapplied the court's instructions and considered matters which it should not have considered, and then base a reversal upon such an unsupported presumption."
The answers of the jury to the questions propounded do not show a reckless disregard of its oath to follow the charge of the Court, but, on the other hand, reflects that the jury gave a fair, unbiased and impartial consideration to all the evidence introduced during the trial. The record contains 569 pages of evidence and the Court submitted the issues raised by such evidence. The jury found that the respondent sustained total disability, but that such disability was temporary, and that total incapacity continued for a period of 208 weeks. It found that respondent sustained 75% partial incapacity and that such partial incapacity was permanent.
This Court has never given any indication to litigants that the reading of the clause relative to attorney's fees was prejudicial error. In the case of Employers' Liability Assur. Corporation, Limited, v. Sims, Tex. Civ.App., 67 S.W.2d 445, 447, writ refused, the Court had before it the same question raised by special exception, as in this case. In that case, this Court refused a writ of error, and thereby adopted the opinion as its own. The Court gave three separate and distinct reasons why it was not reversible error to read the pleading under *858 question to the jury. It is true, the issue of lump sum award was involved, but aside from that question, the Court said:
"We do not think there was reversible error in overruling appellant's objection to the reading to the jury of the clause in the petition, alleging that the petitioner had contracted to pay one-third of his statutory recovery as a fee. Such clause contains a necessary allegation for the judgment to award the attorney fee out of appellee's statutory recovery. In a contested case, arising under the Workmen's Compensation Law (Rev.St.1925, Art. 8306 et seq. as amended), the jury is not permitted to pass upon the amount of the recovery to be awarded. A jury determines only whether such employee was injured while working in the course of his employment, the character, extent, and duration of the injury, and, on these findings, the court fixes the amount of the recovery from such findings, under statutory mandate, in respect to the sum that must be adjudged. The court also finds the reasonable attorney fee, which is sought to be recovered, and apportions the statutory recovery, between the injured employee and his attorney, in accordance with such finding. If, however, we should be mistaken in the conclusion that it was not error to permit counsel for appellee to read to the jury the clause in the petition seeking the recovery of the attorney fee, nevertheless there is shown no reversible error in the instant case, for such error clearly appears to be harmless, for the evidence of the weekly wage that appellee received, as found by the jury, is based upon evidence practically undisputed, and the finding that appellee received total and permanent disability is based upon the great preponderance of the evidence. It therefore affirmatively appears that appellant's rights were in no way prejudiced by the ruling of the court."
In the instant case, as in the Employers' Liability Assur. Corporation, Limited, v. Sims, supra, the jury was not permitted to pass upon the amount of recovery to be awarded, it only passed on whether the respondent was injured in the course of his employment, the character, extent and duration of the injury, and the amount of weekly wage which would be fair and just to both plaintiff and defendant. The evidence on the question of average weekly wage is undisputed, and the evidence on all the issues sustained the findings of the jury.
I am further of the opinion that the respondent in this case cannot eliminate the issue of lump sum award by way of special exception, and that it was error for the trial court to have sustained the exception as it did. The issue of lump sum award was one of fact and can only be decided by one of two methods either submit the issue if raised by the evidence to the trier of the facts, or by agreement of the parties. The petitioner proceeded in this case so far as this issue is concerned in a manner which would not be binding on it. The special exception could have been withdrawn at any time before the close of the evidence. The respondent should not have been deprived of his right to plead and prove all the facts essential to a recovery of a lump sum unless and until the petitioner had agreed and offered, without reservation, to so pay whatever judgment might be awarded plaintiff, and such agreement and offer had been accepted by respondent.
By its second point petitioner contends that the trial court erred in refusing to permit Dr. Butte, a defense witness, to manipulate respondent's foot in the presence of the jury. I agree with Mr. Justice Calvert that the action of the court was not error, but I go on to say that if it was error it was not reversible error.
It is true, respondent exhibited his foot to the jury, but, in so doing, he did not make any demonstration such as manually taking hold of his foot. The main issue in this case was not the existence and extent of limitation of motion in the joints of respondent's foot and ankle, but what was the extent and duration of the injury and whether it extended to or affected other parts of his body.
*859 The record shows that Dr. Butte testified at great length. His testimony begins on page 330 of the statement of facts and ends on page 407. At page 399 appears the question to which the court sustained objection. The question was:
"Doctor, I will ask you if you will exhibit to the jury and demonstrate the motion and lack of motion and limitation, if any, in this young man's foot?"
Petitioner sets out in its Bill of Exceptions No. 3 that "had Dr. Butte been permitted to examine and inspect plaintiff's foot, ankle and leg, and to manually flex the same in the presence of the jury, he could have pointed out and fully demonstrated to the jury at the time of the trial". (Emphasis added.)
"1. That plaintiff had completely recovered from a tremendously swollen right foot and ankle and the large blisters, abrasions and skinned places over his foot which Dr. Butte observed on the first examination in December, 1949, within the first week of the accident in question.
"2. That the fractures to the first, third, fourth and fifth metatarsal bones in plaintiff's right foot had completely healed and were in good alignment;
"3. That plaintiff's heel bone was completely normal, in good alignment and freely moveable with no limitation of motion in it;
"4. That plaintiff's right ankle and ankle joint were completely normal, freely moveable, with no swelling, pain or limitation of motion in the ankle or ankle joint;
"5. That there was a complete absence of swelling in plaintiff's foot;
"6. That there was some slight limitation of motion in the toe; however, there was good motion of the joints in the rear of the foot which allowed the foot complete freedom to turn in and to turn out;
"7. That the heel bone was completely normal, in good alignment, and freely moveable;
"8. That a fusion of the cunieform bone gave rise to a slight limitation of motion of the forepart of the foot, however, this fusion causes no pain;
"9. That the joints in the rear of the foot which govern the motion of the foot from side to side were entirely normal and there was no limitation of motion in the rear of the foot or ankle;
"10. That extended walking would cause plaintiff to have a slight limp due to limitation of motion in the toes and the fusion of the cunieform bone; however, any limp due to the slight limitation of motion in the forepart of plaintiff's foot would not cause any pain or disability in his hip or back and would not affect or extend the injury in his foot to his body generally;
"11. That there is no shortening of plaintiff's right leg;
"12. That there is no pain or muscle spasm in plaintiff's back;
"13. That plaintiff's injuries are confined to his right foot;
"14. That the removal of a soft tissue tumor between plaintiff's first and second toes was successful; no disability existed from the removal of the tumor, and the circulation in his foot was good and in no way impaired; and
"15. That the comparison of plaintiff's right and left feet shows that plaintiff suffers from substantially the same amount of flat feet in both feet."
Prior to asking the above quoted question and taking Bill of Exception No. 3, the doctor had testified that he first saw the respondent two days after the accident, and that he re-examined him about one month before the trial; that on the first examination, respondent had a "tremendously swollen right foot and ankle; particularly the foot. There were a number of fairly large blisters over the foot, and a few small abrasions and skinned looking places on the foot". The doctor testified in complete detail as to his findings *860 as the result of the second examination. This testimony, to a great extent, was the same as that which petitioner stated he expected to prove. However, some of the testimony is contrary to that set out in the Bill of Exception. For example: "There appeared to be considerable tenderness about the mid-foot when we tried to examine the foot and palpate the foot. It seemed to be particularly tender on top of the foot in the region of this operating scar."
"Q. Does that picture there show any mass solidification of the bones which makes them immovable? A. I think there is probably some fusion between these cunieform bones and the base of the third metatarsal. I think that those joints are obliterated or grown together."
The doctor did not say that a fusion causes no pain. He did say that he could not find anything in the picture "that could be indicative of any cause for any pain." He went on to say: "The fact that there is a little bit of deformity of one of the fractures may cause some pain in the foot. It doesn't function completely normal. Therefore, it may be somewhat painful."
The record in this case conclusively shows that petitioner suffered no injury by the Court's refusal to permit the doctor to manipulate the foot. There is no evidence that the plaintiff's foot was any different in May 1951, the date of trial, than in April 1951, when Dr. Butte last examined him. How could the manipulation of the foot in the presence of the jury add anything to the doctor's testimony? Proof that the doctor would be able to manually force the foot to move would not be proof that plaintiff did not suffer pain in the foot which affected other portions of his body.
The following hypothetical question, propounded to Dr. Butte, was based on facts in the case. It made no reference to motion or lack of motion in the foot. The question reads:
"* * * Now, Dr. Butte, assume that Arthur C. Hatton, 19 years of age, on November 29, 1949, was working at air conditioning I mean working for a sheet metal works that was installing ducts for air conditioning in a tall ceiling room similar to this Courtroom, 15 to 20 feet high, something like that, and that a high scaffold that was being used to stand on to fasten the duct up to the ceiling had planks on it, and while the scaffold was being moved on the floor and while he was on the floor, a heavy timber weighing approximately 125 pounds, a board or plank fell off the scaffold and fell end down and hit him on top of the right foot; assume that after that he was hospitalized for approximately a month in St. Paul's Hospital, and was after that confined to bed for some period of time and then re-hospitalized about the 10th of April 1950, where he was hospitalized for about ten days in the Methodist Hospital, and then where he was treated for skin eruptions or whatever you call it, from some medication used on his foot, and again hospitalized in the Methodist Hospital for a period of about ten days when an operation was performed on his foot that resulted in a scar about five inches long on top of the foot and I am sure you saw the scar when you examined him last month and that he, during all of that period of time after he got up from bed, used two crutches for approximately eight or nine months to move around when he did get up from bed after the operation, and that after putting down the crutches and walking without crutches, he had pain in his right foot which radiated through his right leg into his hip and in the low part of his back, and he has had that pain from and since that time on all attempts to walk, and he had no pain in his hip or back and no trouble with his hip and back before this accident happened, would you tell the jury that pain in his *861 hip and back was not related to the accident that he had on November 29, 1949?
"Q. My question is, with that related statement of facts, would you tell the jury that there is no connection between the pain in his low part of his back and hip with the injury to his foot? A. I wouldn't say there was no connection."
This question sums up the evidence supporting plaintiff's contention, and the doctor admitted that if such evidence were true, then a limp from pain in the foot would affect the respondent's back.
Petitioner relies on the case of Kenney v. La Grone, Tex.Civ.App., 62 S.W.2d 600, 601, which held that when a person "voluntarily exhibits the injured part of his body to a jury during the trial of his case, he thereby waives the inherent inviolability of his person and immunity from examination by experts. In such case, speaking generally, the defendant may properly demand that the plaintiff submit to reasonable examination by reputable physicians of defendant's selection, and the trial court's refusal of the defendant's motion therefor constitutes error."
When you read this part of the holding, it seems to me it does not mean what the petitioner contends for. However, in my opinion, there can be no question as to what the Court meant when it went on to say the following: "But such error does not necessarily require a reversal. It is only when the error has apparently or probably resulted in injury to the defendant that the judgment should be reversed * * *." Then the Court held that no injury had been made apparent or probable and affirmed the case. A writ of error was granted, 127 Tex. 539, 93 S.W.2d 397, but this point was not carried forward in the application, and therefore, was not discussed by the Court in its opinion of affirmance.
The judgments of the trial court and the Court of Civil Appeals should be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2473825/ | 730 F. Supp. 2d 40 (2010)
Christopher IHEBEREME, Plaintiff,
v.
CAPITAL ONE, N.A., as successor by merger to Chevy Chase Bank, F.S.B., et al., Defendants.
Civil Action No. 10-1106 (ESH).
United States District Court, District of Columbia.
August 9, 2010.
*44 Cheryl Calloway, Washington, DC, for Plaintiff.
Christopher C. Fogleman, Gleason, Flynn, Emig & Fogleman, Chartered, Rockville, MD, for Defendants.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
Christopher Ihebereme is the mortgagor of a $280,000 home mortgage loan currently held by Chevy Chase Bank, F.S.B. ("Chevy Chase"). After Chevy Chase asserted that he had defaulted on his debt, Ihebereme sued Chevy Chase and its successor by merger, Capital One, N.A. ("Capital One"); and Capital One's Vice President, Kate Stone. Plaintiff filed his Amended Complaint in the Superior Court of the District of Columbia, claiming breach of contract, tortious interference with contract, breach of the contractual duty of good faith and fair dealing, fraud, violation of the D.C. Consumer Protection Procedures Act ("DCCPPA"), D.C.Code §§ 28-3901 to -3913, violation of the D.C. Human Rights Act ("DCHRA"), D.C.Code § 2-1402.01, intentional infliction of emotional distress, and defamation of character. Defendants have removed the case to this Court on the basis of diversity of citizenship[1] and have moved to dismiss the *45 Amended Complaint. For the reasons stated herein, defendant Capital One N.A.'s motion will be granted in part and denied in part, and defendant Kate Stone's motion will be granted.
BACKGROUND
On March 28, 2007, Chevy Chase issued to plaintiff a $280,000 mortgage[2] for plaintiff's purchase of a home in the District of Columbia. (Am. Compl. ¶¶ 13-14, 16.) The mortgage called for interest at an annual percentage rate of 6.797% and repayment over 360 months. (Id. ¶ 16.) According to the terms of his mortgage, plaintiff was required to make monthly payments of $2,469.89. (Id. ¶ 18.) Chevy Chase charges a fee of ninety dollars for late payments (Id. ¶ 25) and a service charge of approximately twenty-five dollars for payments made by telephone. (Id. ¶ 27.)
The mortgage also required monthly payments of $406.09 for private mortgage insurance ("PMI"), waivable if plaintiff made twelve consecutive monthly payments not more than thirty days past due and twenty-four consecutive monthly payments not more than sixty days past due. (Id. ¶¶ 65-66.) According to plaintiff, Chevy Chase substantially overcharged him for PMI, based on its calculation of plaintiff's premium; plaintiff insists that the actual amount he should have been charged monthly under a standard formula for a PMI premium is $210 per month. (Id. ¶¶ 72-79.) This overcharge, plaintiff alleges, amounts to fraud, a material misrepresentation, and an unfair business practice. (Id. ¶¶ 80, 86.)
For the first ten months of the mortgage term, plaintiff made his monthly payments on time and without incident, using Chevy Chase's Internet-based medium for bill payment. (Id. ¶ 22.) When plaintiff attempted to make his March 2008 payment using the same online service, he found that Chevy Chase had stopped accepting his online payments. (Id. ¶ 23.) Almost immediately, plaintiff's relationship with Chevy Chase began to deteriorate, as he sought an explanation for the change but received none, began to incur late fees for rejected payments, and lost his good standing for timely payments. (Id. ¶¶ 24-26.) Chevy Chase first notified plaintiff that he must pay either over the telephone (and incur a service charge) or in-person to a bank teller, and subsequently, that instead of a bank teller, he must thenceforth pay a branch manager directly. (Id. ¶¶ 27-29.) Owing to the newfound inconveniences related to his mortgage payments, plaintiff alleges that his job performance was interrupted and he was fired. (Id. ¶¶ 32(e), 33.)
Plaintiff also alleges that three consecutive mortgage payments, which he made under the changed requirements, were not credited in a timely fashion, resulting in a declaration of default, the commencement of foreclosure proceedings, and false reports of default to credit bureaus. (Id. ¶ 32(f)-(g).) The foreclosure proceedings and false reports of defaultincluding in notices sent to plaintiff's householdcaused plaintiff's family to distrust him and caused him embarrassment in his community. (Id. ¶¶ 35-37.) Moreover, according to plaintiff, this prevented him from refinancing the mortgage, in turn keeping him from recovering his credit. (Id. ¶ 32(h).)
Plaintiff, initially proceeding pro se, filed his Complaint in the Superior Court of the *46 District of Columbia on March 25, 2010, seeking thirteen million dollars in damages. (Compl. ¶¶ 479-80.) Defendants moved to dismiss the Complaint, and, with the court's leave, plaintiff obtained counsel and filed an Amended Complaint on May 28, 2010. (See Am. Compl.; Order of May 24, 2010.) Plaintiff's Amended Complaint pleads twelve claims, of which nine are against Capital One, four are against Chevy Chase, and three are against Stone. He seeks declaratory and injunctive relief in addition to unspecified money damages. (Am. Compl. ¶ 126.)
On June 17, 2010, defendants moved to dismiss the Amended Complaint (Mot. of Def. Capital One to Dismiss Am. Compl. ["Capital One Mot."]; Mot. of Def. Stone to Dismiss Am. Compl. ["Stone Mot."]), and on June 25, 2010, defendants removed the case to this Court on the basis of diversity of citizenship.
ANALYSIS
I. STANDARD OF REVIEW
In deciding a motion to dismiss for failure to state a claim upon which relief can be granted, under the Federal Rules of Civil Procedure, a court may consider only "the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir. 1997). As the Supreme Court held in Ashcroft v. Iqbal, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" ___ U.S. ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A complaint must be dismissed if it consists only of "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. "Although `detailed factual allegations' are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the `grounds' of `entitle[ment] to relief,' a plaintiff must furnish `more than labels and conclusions' or `a formulaic recitation of the elements of a cause of action.'" Gerlich v. Dep't of Justice, 659 F. Supp. 2d 1, 4 (D.D.C.2009) (quoting Twombly, 550 U.S. at 555-56, 127 S. Ct. 1955).
"Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C.Cir.1995). "However, the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).
II. PLAINTIFF'S CLAIMS
A. Breach of Contract
1. Chevy Chase
Plaintiff alleges that Chevy Chase breached its contract with plaintiff by successively limiting the methods of payment available to plaintiff. Chevy Chase counters that the Amended Complaint does not adequately allege that any contractual duty was breached. Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain a short and plain statement of the grounds upon which the court's jurisdiction depends, a short and plain statement of the claim *47 showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks. Fed. R. Civ. P. 8(a). The purpose of the minimum standard of Rule 8 is to give fair notice to the defendants of the claim being asserted, sufficient to prepare a responsive answer, to prepare an adequate defense and to determine whether the doctrine of res judicata applies. Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.1977).
In the case of a claim for breach of contract, the complaint must allege four necessary elements in order to effect fair notice: "(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach." Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C.2009); see San Carlos Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed.Cir.1989) (finding that a plaintiff "must allege and establish" all four elements to recover). Obviously, one cannot breach a contract without breaching a particular obligation created under the contract, and thus, "in the absence of a contractual obligation ... defendants could not have breached their contract." Schoen v. Consumers United Group, Inc., 670 F. Supp. 367, 378 (D.D.C. 1986).
In this case, plaintiff's claim for breach of contract consists of several factual allegations: that he and Chevy Chase signed a contract, that Chevy Chase at first accepted on-line payments and then refused to continue accepting them, that at some point Chevy Chase came to require that plaintiff pay either by telephone or in-person to a bank teller, and that eventually Chevy Chase came to require that he pay a branch manager directly. (Am. Compl. ¶¶ 13-29.) Those allegations include the existence of a contract (Id. ¶¶ 13-19), suggestions that Chevy Chase was breaching something (id. ¶¶ 23-24, 27, 29), and an assertion of financial injury caused by the bank's behavior. (Id. ¶¶ 25-26.) But conspicuously absent from the narrative is any allegation as to the existence of any duty relevant to the breach claimed.
Plaintiff's failure to allege that Chevy Chase was under a contractual duty to accept payment online when it notified him that he must instead pay in-person, or to accept payments at the teller window when it instead required payment to a branch manager, represents a critical gap in his claim. The conclusory assertion that "Chevy Chase violated the terms of the contract between Plaintiff and Defendant" (Am. Compl. ¶ 30) does not put defendant on notice of which terms it allegedly breached, so the allegation does not satisfy the notice-pleading purpose of Rule 8's requirement for a plain statement of the claim. Moreover, the section of the contract excerpted by plaintiff in his Amended Complaint (see Am. Compl. ¶ 19) does not appear to impose a duty on the bank to accept any particular form or method of payment, and plaintiff neglects to explain anywhere else in his Amended Complaint whether one might infer a duty from that section. Moreover, the Court has reviewed the contract (Am. Compl., Ex. 1 ["Deed of Trust"]) in its entirety and can find neither an express duty for Chevy Chase to accept mortgage payments through any particular means, to any particular person, or at any particular location, nor any constraint on the bank's power to limit plaintiff's method of payment.[3]
*48 Without a contractual duty, there can be no breach of contract, and by not identifying any duty under the contract to forbear from taking any of the actions alleged, plaintiff has not stated a claim for breach of contract.
2. Capital One
Plaintiff alleges that Capital One breached a contract "[b]y failing to investigate the allegations of Plaintiff" (Id. ¶ 117) and by "condon[ing] the acts and omissions of Defendants Stone and Chevy Chase." (Id. ¶ 118.) Capital One maintains that plaintiff has failed to allege a breach of any contractual obligation. The Court agrees for the reasons set forth above. Plaintiff has not alleged that Capital One is bound by a contractual duty to investigate his grievances or to prevent Stone and Chevy Chase from acting in any particular manner. Thus, he has failed to state a claim upon which relief can be granted.
B. Tortious Interference With Contract
Plaintiff alleges that Stone and Chevy Chase "interfered with [his] implementation of and compliance with" the requirements of the loan agreement between him and Chevy Chase. Defendants respond by arguing that, as a party to the contract, they cannot be liable for having interfered therewith. The Court agrees and will dismiss the tortious interference claims.
The District of Columbia adheres to the "rule that `the defendant's breach of his own contract with the plaintiff is of course not a basis for the tort' of interference with contractual relations." Raskauskas v. Temple Realty Co., 589 A.2d 17, 26 (D.C.1991) (quoting W. Prosser & W.P. Keeton, Prosser on Torts, § 129 at 900 (5th ed. 1984)). The court in Raskauskas explained the rule as "stem[ming] from the common sense notion that a plaintiff should not be allowed to convert a breach of contract claim into a claim for tortious interference." Id. By the same reasoning, the D.C. Court of Appeals has held that when a corporation is a party to a contract, its officers, "acting as agents of the ... party to the contract ... through their actions could not tortiously interfere with [the corporation's] own contract." Press v. Howard Univ., 540 A.2d 733, 736 (D.C. 1988).
Defendants here are a corporation and its Vice President. One is a party to the contract and the other is its officer acting as an agent of the party to the contract. Plaintiff's Amended Complaint acknowledges that one defendant is a party to the contract (Am. Compl. ¶ 32) and that the other is an officer "at all times material... in a position to make, implement and/or enforce policies of" the party. (Am. Compl. ¶ 41; see Mem. of P. & A. in Supp. of Mot. of Def. Stone to Dismiss Am. Compl. ["Stone MPA"] at 5.) Neither, therefore, can be liable under D.C. law for tortious interference with the corporation's contract with plaintiff, and Counts II and III will be dismissed.
*49 C. Breach of Good Faith and Fair Dealing
Plaintiff alleges that Chevy Chase breached its implied covenant of good faith and fair dealing in several ways: by making it difficult for plaintiff to pay his mortgage bills (Am. Compl. ¶ 63(a), (d)), by not crediting the payments he made (Id. ¶¶ 63(b), 68), and by erroneously reporting non-payment to credit bureaus. (Id. ¶ 63(c).) Chevy Chase seeks to dismiss these claims on the grounds that it was acting within its express contractual rights. Under the law of the District of Columbia, "all contracts contain an implied duty of good faith and fair dealing, which means that `neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.'" Paul v. Howard Univ., 754 A.2d 297, 310 (D.C.2000) (quoting Hais v. Smith, 547 A.2d 986, 987 (D.C.1988)). "This duty prevents a party from evading the spirit of the contract, willfully rendering imperfect performance or interfering with the other party's performance." Hais, 547 A.2d at 987-88.
Chevy Chase argues that it had an express right under its contract with plaintiff to undertake each act that plaintiff complains about. (Mem. of P. & A. in Supp. of Mot. of Def. Capital One to Dismiss Am. Compl. ["Capital One MPA"] at 7-8.) As a preliminary matter, while plaintiff argues that the conduct was "expressly permitted by the contract" (Id. at 8), express rights to undertake the acts alleged are nowhere in the contract. The Deed of Sale fails to give defendant any right to engage in the alleged behavior. Defendant's brief does not indicate where it claims that right exists (even though both parties quote from the contract in their briefs, and it was attached as an exhibit to the Amended Complaint), nor can the Court find any such provision in the Deed of Sale.
But even if such express contractual permission could be found, satisfaction of the implied covenant of good faith and fair dealing requires more than a showing that the contract conferred discretion, for such discretion must be exercised reasonably. Adler v. Abramson, 728 A.2d 86, 90 (D.C. 1999). In other words, defendant "would not have breached its duty of fair dealing when reasonable persons in the parties' shoes would have expected the contract to be performed as it was." Id. at 90-91. The behavior as alleged, however, does not represent an expected or reasonable exercise of a lender's contractual discretion, even if that discretion is clearly vested in the lender. Plaintiff avers as much, by calling the behavior "arbitrary" and "capricious." (E.g., Am. Compl. ¶ 67.)
The conduct alleged, (i.e., refusing to accept and credit payments and providing false reports to credit bureaus) is not provided for in the contract, and that behavior arguably diminished plaintiff's ability to "receive the fruits of the contract," see Paul, 754 A.2d at 310, by making it more difficult for him to repay the mortgage as a result of late fees and the decreased accessibility of refinancing. Plaintiff therefore has sufficiently alleged activity that "evad[es] the spirit of the contract" and "interfer[es] with the other party's performance." See Hais, 547 A.2d at 987-88. The Court accordingly denies the motion to dismiss plaintiff's claims for breach of Chevy Chase's duty of good faith and fair dealing.
D. Fraud
Plaintiff claims that Chevy Chase defrauded him by overcharging for PMI. Fraud claims are subject to rigorous requirements, both in terms of the necessary elements and the heightened standard to *50 satisfy those elements. "`The essential elements of common law fraud are: (1) a false representation (2) in reference to material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action is taken in reliance upon the representation.'" Atraqchi v. GUMC Unified Billing Servs., 788 A.2d 559, 563 (D.C.2002) (quoting Bennett v. Kiggins, 377 A.2d 57, 59 (D.C.1977)). Both D.C. and federal pleading standards require a plaintiff claiming fraud to allege specific facts lending themselves to an inference of fraud. Fed. R. Civ. P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."); Bennett, 377 A.2d at 59-60 ("One pleading fraud must allege such facts as will reveal the existence of all the requisite elements of fraud.").
Plaintiff's fraud claim here does not even purport to allege the necessary elements of knowledge and intent.[4] Thus, while intent and knowledge may be alleged generally, Scowcroft Group, Inc. v. Toreador Res. Corp., 666 F. Supp. 2d 39, 45 (D.D.C.2009), and while a mere assertion of knowledge has been found to meet the standard, Molecular Diagnostics Labs. v. Hoffmann-La Roche Inc., 402 F. Supp. 2d 276, 288 (D.D.C.2005), the Amended Complaint does not even clear those low bars. Due to plaintiff's failure to allege the knowledge and intent elements, a claim for relief has not been stated with respect to fraud.
E. DCCPPA
Plaintiff claims that both Chevy Chase and Capital One engaged in unlawful trade practices under the DCCPPA. According to defendant, the DCCPPA does not apply to this case for two reasons. First, defendant argues that the behavior which underlies this case "does not involve the sale, lease, or transfer of consumer goods or services," and thus, the particular financing-related practices at issue in the Amended Complaint are not subject to the DCCPPA. (Capital One MPA at 10-11.) Second, defendant asserts that, because "[t]he acts of which plaintiff complains all occurred subsequent to the sale of consumer services," those acts are not part of the sale itself and therefore do not fall within the statute's authority. (Id. at 11.) Plaintiff disputes both points, arguing that although the case law does not provide a clear answer, it is "difficult to believe that such a comprehensive act" would not apply here. (Pl.'s Opp'n at 6.)
"The purpose of the [DCCPPA] is to protect consumers from a broad spectrum of unscrupulous practices by merchants, therefore the statute should be read broadly to assure that the purposes are carried out." Modern Mgmt. Co. v. Wilson, 997 A.2d 37, 63 (D.C.2010). Specifically, the DCCPPA regulates transactions between a consumer and a merchant. D.C. Code § 28-3904; see Indep. Commc'ns Network, Inc. v. MCI Telecomms. Corp., 657 F. Supp. 785, 787 (D.D.C.1987). The Court observes that the DCCPPA is, "to say the least, an ambitious piece of legislation," Howard v. Riggs Nat'l Bank, 432 A.2d 701, 708 (D.C.1981), "with broad remedial purposes." DeBerry v. First Gov't Mortgage & Investors Corp., 743 A.2d 699, 703 (D.C.1999); see D.C. Code § 28-3904(b). It "prohibit[s] a long *51 list of `unlawful trade practices,'"[5]Howard, 432 A.2d at 708, and to do so it defines the operative terms broadly, in accordance with its goal of "assur[ing] that a just mechanism exists to remedy all improper trade practices." D.C.Code § 28-3901(b)(1) (emphasis added).
Under the DCCPPA, a "consumer" is "a person who does or would purchase, lease (from), or receive consumer goods or services, ... or a person who does or would provide the economic demand for a trade practice." D.C. Code § 28-3901(a)(2). A "merchant" is "a person who does or would sell, lease (to), or transfer, either directly or indirectly, consumer goods or services, or a person who does or would supply the goods or services which are or would be the subject matter of a trade practice." Id. § 28-3901(a)(3). The Act defines a "trade practice" as "any act which does or would create, alter, repair, furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease, or transfer of consumer goods or services." Id. § 28-3901(a)(6). Finally, "goods and services" are defined broadly as "any and all parts of the economic output of society, at any stage or related or necessary point in the economic process, and includes consumer credit, franchises, business opportunities, real estate transactions, and consumer services of all types." Id. § 28-3901(a)(7). A merchant need not be the "actual seller of the goods or services" complained of, but must be "connected with the `supply' side of the consumer transaction." Save Immaculata/Dunblane, Inc. v. Immaculata Prep. Sch., 514 A.2d 1152, 1159 (D.C.1986).
The question of the DCCPPA's applicability to mortgage transactions was first presented in DeBerry v. First Gov't Mortgage & Investors Corp., 170 F.3d 1105 (D.C.Cir.1999). Seeking to apply local D.C. law and noting that local D.C. courts had "not ruled directly on this issue," the D.C. Circuit certified the following question to the D.C. Court of Appeals: "Does [the DCCPPA] apply to real estate mortgage finance transactions?" Id. at 1110. The D.C. Court of Appeals responded as follows:
In the [DCCPPA], the Council [of the District of Columbia] declared its opposition to unconscionable credit transactions exploiting a consumer's likely inability to make payment in full or otherwise protect her interests. The mischief represented by that practice obviously exists whether mortgage financing accompanies the sale of property or is itself the subject matter of the transaction.... We therefore hold that [the DCCPPA] applies to real estate mortgage finance transactions.
DeBerry, 743 A.2d at 703 (D.C.1999). Since then, courts have consistently treated mortgagees' practices as subject to the DCCPPA. See, e.g., Williams v. First Gov't Mortgage & Investors Corp., 225 F.3d 738, 744 (D.C.Cir.2000); Hughes v. Abell, 634 F. Supp. 2d 110, 113 (D.D.C. 2009); Johnson v. Long Beach Mortgage Loan Trust 2001-4, 451 F. Supp. 2d 16, 38 (D.D.C.2006).
Defendant argues, however, that the DCCPPA's interdiction of unconscionable credit practices and other unfair trade *52 practices does not apply to this case because the challenged behavior occurred after the sale of the loan. By occurring after the signing of the Deed of Trust, according to defendant, the behavior is excluded from the DCCPPA's definition of "trade practices." (See Capital One MPA at 11.) For the Court to be persuaded by this argument, it must find that none of the challenged behavior "create[d], alter[ed], repair[ed], furnish[ed], ma[d]e available, provide[d] information about, or, directly or indirectly, solicit[ed] or offer[ed] for or effectuate[d]" the sale of the mortgage. See D.C. Code § 28-3901(a)(6). Such a finding is not appropriate at this stage, in light of the facts alleged by plaintiff.
Neither party provides case law discussing temporal constraints on the acts related to a sale under the statute. Whether a mortgagee's acts over the period of the mortgage loan constitute acts that, for example, alter or effectuate or provide information about the sale of the mortgage under the DCCPPA is unclear. While many authorities have opined divergently on what constitutes a sale,[6] the contours of acts altering or effectuating or providing information about a sale are necessarily more inclusive than the sale itself, in terms of, inter alia, the time horizons and the parties involved. For example, even when "parties providing recommendations of the goods or services of a particular merchant to the consumer" are not parties to the sale, and even when their acts take place before the sale itself, such parties may nonetheless "assume liability" under the "broad reach of the DCCPPA." Adler v. Vision Lab. Telecomms., Inc., 393 F. Supp. 2d 35, 39-40 (D.D.C.2005). Accordingly, the Court will not disqualify behavior falling outside ofor afterthe act of signing the contract from the DCCPPA's purview.
Even if acts after the March 28, 2007 signing of the Deed of Trust and Promissory Note were not subject to the DCCPPA, plaintiff would still state a valid claim for relief under the statute. At least one of the challenged acts happened even before the parties inked their contract *53 the alleged misrepresentation of material facts which plaintiff argues Chevy Chase undertook by misrepresenting the PMI premium. So even if the sale had ended when the parties signed the Deed of Trust, as defendant suggests, this alleged material misrepresentation predated the conclusion of the sale. Thus, defendant's factual assertion that "[t]he acts of which plaintiff complains all occurred subsequent to the sale of consumer services to plaintiff" (Capital One MPA at 11) cannot be correct, even under an interpretation of the timing of sale most favorable to them.
Plaintiff alleges that defendant misrepresented material facts, refused to credit his timely and good-faith payments, changed his payment requirements without explanation, and generally engaged in improper trade practices. Questions may remain as to whether the behavior transpired as plaintiff alleges and whether it violates the DCCPPA, but at this juncture, the Court is satisfied that the allegations state a claim upon which relief can be granted and therefore the motion to dismiss will be denied.
F. DCHRA
Plaintiff alleges that Chevy Chase violated his economic rights as a result of racial and ethnic discrimination in violation of the DCHRA. Defendant argues that plaintiff has not stated a claim, first because plaintiff does not provide a sufficient factual basis for a finding that defendant's actions were discriminatorily motivated, and second, because loans are not among the traditional areas on which the DCHRA focuses.
In the District of Columbia, the right to access economic and social resources free from improper discrimination is enshrined in the DCHRA, which guarantees that:
Every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District and to have an equal opportunity to participate in all aspects of life, including, but not limited to, in employment, in places of public accommodation, resort or amusement, in educational institutions, in public service, and in housing and commercial space accommodations.
D.C. Code § 2-1402.01. A claim of discrimination under the DCHRA requires a plaintiff to show a nexus between his disparate treatment and his race and ethnicity. Cf. Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 73 (D.D.C.2002) ("The legal standard for discrimination under the DCHRA is substantively the same as under Title VII.... Thus, as under Title VII, in order to state a prima facie case of gender discrimination under the DCHRA, plaintiff must establish: (1) that she is a member of a protected class; (2) that she suffered an adverse employment action; and (3) that the unfavorable action gives rise to an inference of discrimination." (emphasis added) (internal citations omitted)).
At the pleadings stage of litigation, a plaintiff is not required to set forth all of the prima facie elements of a discrimination claim. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). Yet, the D.C. Circuit has emphasized that despite the fact that the complaint "must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests,' ... we accept neither `inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint,' nor `legal conclusions cast in the form of factual allegations.'" Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)).
*54 Plaintiff's discrimination claim under the DCHRA comes up short. Although the Amended Complaint states plaintiff's "belief" that racial and ethnic discrimination motivated defendant's actions toward him, it goes no further. (Am. Compl. ¶¶ 97-99.) Simply including the conclusory clause "by virtue of his race and ethnicity" (Id. ¶ 97) after recounting defendant's behavior, without any factual allegations that address the relevance of race and ethnicity, does not state a claim for discrimination. Plaintiff alleges his membership in a protected class by stating his race and ethnicity, but that alone does not meet the requirement of a "detailed factual allegation," under Twombly, to adequately allege that race or ethnicity motivated another's actions.[7]
Finding only conclusory allegations of discrimination, the Court will dismiss Count VIII for failure to state a claim upon which relief can be granted. Therefore, the Court need not address defendant's argument that lending practices are not subject to the equal economic opportunities provision of DCHRA.
G. Intentional Infliction of Emotional Distress
Plaintiff also claims that defendants' behavior constituted intentional infliction of emotional distress ("IIED"). Defendants argue that their acts were not sufficiently outrageous to give rise to IIED claims. The Court agrees.
"The tort of intentional infliction of emotional distress consists of (1) `extreme and outrageous' conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff `severe emotional distress.'" Kotsch v. District of Columbia, 924 A.2d 1040, 1045 (D.C.2007) (quoting Waldon v. Covington, 415 A.2d 1070, 1076 (D.C.1980); Restatement (Second) of Torts § 46 (1965)). The ultimate question is whether "the recitation of the facts to the average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Homan v. Goyal, 711 A.2d 812, 818 (D.C.1998) (quoting Restatement (Second) of Torts § 46 cmt. d). To meet this "demanding standard," the act or acts in question "must be `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'" Heasley v. D.C. Gen. Hosp., 180 F. Supp. 2d 158, 173 (D.D.C.2002) (quoting Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C.1991)). Moreover, "[i]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery...." Id.
Under the District of Columbia's definition of IIED, this Court has found, for example, that reasonable minds may differ, and thus that an IIED claim is adequately stated as to the outrageousness of behavior involving a claim of assault, battery, and unreasonable seizure by a police officer. Qutb v. Ramsey, 285 F. Supp. 2d 33, 51-52 (D.D.C.2003). Other behavior has been found not to rise to the level of IIED, for example: an arrest based on careless *55 error by a police detective, Liser v. Smith, 254 F. Supp. 2d 89, 106-07 (D.D.C.2003); issuing a press release that incorrectly implicated the plaintiff in a murder he did not commit, Minch v. D.C., 952 A.2d 929, 941 (D.C.2008); baselessly convincing plaintiff that defendant had a lien on her property, Wood v. Neuman, 979 A.2d 64, 77 (D.C.2009); and an employer's retaliatory constructive termination after the plaintiff reported her employer's fraudulent billing practices. Darrow v. Dillingham & Murphy, LLP, 902 A.2d 135, 139 (D.C.2006).
Plaintiff argues that defendants' business practices belong in the category of behavior "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious." See Bernstein, 649 A.2d at 1075. His Amended Complaint calls each of several discrete actions "unreasonable and outrageous," including "refus[ing] to accept mortgage payments" (Am. Compl. ¶ 106), "mak[ing] it increasingly more difficult for Plaintiff to make his mortgage payments" (Id. ¶ 107), "discriminat[ing] against Plaintiff by virtue of his race and ethnicity" (Id. ¶ 108), "fail[ing] to credit Plaintiff's mortgage payments in a timely manner" (Id. ¶ 109), and "overcharg[ing] Plaintiff for PMI premiums." (Id. ¶ 110.) These allegations, taken as true, may describe poor business practices and a truly unpleasant experience for plaintiff, in addition to supporting plaintiff's other causes of action, but they do not rise to the level of being atrocious or outrageous. Therefore, the IIED claims will be dismissed.
H. Defamation
Plaintiff claims that his character suffered defamation when Chevy Chase sent incorrect information to credit bureaus concerning his mortgage, mailed letters to his house falsely accusing him of defaulting on the mortgage, and changed his required methods of mortgage payment. He also claims that Stone and Capital One defamed his character by failing to correct the false information that Chevy Chase had communicated. Defendants respond by arguing that the alleged communications were not sufficiently defamatory to give rise to a cause of actionin other words, they did not make plaintiff look bad enough to have been truly defamatory. Stone and Capital One supplement that argument by indicating that they never affirmatively made defamatory statements, even under plaintiff's failure-to-correct theory, so they cannot be liable for defamation. (Stone MPA at 9.)
To make out a claim for defamation in the District of Columbia:
a plaintiff must allege: "(i) a false and defamatory statement was written by the defendant about the plaintiff; (ii) the defendant published it without privilege to a third party; (iii) the defendant exhibited some fault in publishing the statement; and (iv) the statement is actionable as a matter of law or the publication has caused the plaintiff special harm."
Ning Ye v. Holder, 644 F. Supp. 2d 112, 117 (D.D.C.2009) (quoting Messina v. Fontana, 260 F. Supp. 2d 173, 176-77 (D.D.C. 2003)). "In the District of Columbia, a statement is defamatory if it tends to injure the plaintiff in his or her trade, profession or community standing or lower him in the estimation of the community." Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C.2001) (internal quotation marks omitted). The Court "will not dismiss a complaint under Rule 12(b)(6) which alleges defamation if `the communications of which the plaintiff complains were reasonably susceptible of a defamatory meaning.'" Clawson v. St. Louis Post-Dispatch, *56 L.L.C., 906 A.2d 308, 313 (D.C. 2006) (quoting Klayman v. Segal, 783 A.2d 607, 612-13 (D.C.2001)). However, "an allegedly defamatory remark must be more than unpleasant or offensive; the language must make the plaintiff appear `odious, infamous, or ridiculous.'" Howard Univ. v. Best, 484 A.2d 958, 989 (D.C.1984) (quoting Johnson v. Johnson Publ'g Co., 271 A.2d 696, 697 (D.C.1970)). And in the Court's assessment of the statement's defamatory nature, "the publication must be considered as a whole, in the sense it would be understood by the readers to whom it was addressed." Best, 484 A.2d at 989.
Defendants focus on the "odious, infamous, or ridiculous" standard for defamation and argue that the statements at issue do not rise to that level. Yet, at this stage in the litigation the Court need not find that the statements actually portrayed plaintiff in an "odious, infamous, or ridiculous" light, but must merely find the statements "reasonably susceptible of a defamatory meaning," in order to find that plaintiff has stated a claim. Clawson, 906 A.2d at 313. The statements to credit bureaus[8] made plaintiff appear, at the very least, both irresponsible and financially insolvent. Thus, the Court concludes that a reasonable person might consider one's character defamed by such a portrayal.
That conclusion is even stronger when the context is "understood by the readers to whom it was addressed." See Best, 484 A.2d at 989. Communications were sent to credit bureaus, so their ultimate audience comprised, inter alia, prospective creditors for whom the irresponsibility and financial insolvency conveyed by the bank's communications are of particular concern. See LaPrade v. Abramson, No. 97-CV-10, 2006 WL 3469532, at *12-*13 (D.D.C. Nov. 29, 2006) (denying defendant's motion for summary judgment on defamation claim that alleged defendant "reported a false debt to credit bureaus"). Therefore, Chevy Chase's alleged statements to credit bureaus were reasonably susceptible of a defamatory meaning.
*57 In contrast, the bank's periodic change of plaintiff's required payment methods cannot constitute defamatory statements. Plaintiff argues that changing his payment requirements "implied" the same irresponsibility and financial insolvency as the other statements communicated. (Am. Compl. ¶ 124.) A pattern of changes in required payment methods simply is not susceptible to a defamatory meaning when considered as a whole, because such changes in the processes surrounding ministerial tasks are commonplace and typically result from any number of causes outside of a customer's control. Any interpretation of a bank customer's change in payment methods as implying odiousness, infamy, or ridiculousness is not reasonable. Accordingly, the Court concludes that plaintiff's Amended Complaint does not state a defamation claim upon which relief can be granted with regard to changes in his payment methods.
Plaintiff's claim also falls short of adequately alleging defamation with regard to Stone and Capital One. Even taking as true plaintiff's allegation that "Stone and Capital One have continued the defamatory actions of Defendant Chevy Chase by continuing, among other things, to allow false information to remain on Plaintiff's credit bureau reports" (Am. Compl. ¶ 125), defendants correctly point out that the claim does not allege any affirmative communication. Without alleging the element of "a false and defamatory statement... written by the defendant," plaintiff has not stated a defamation claim. Ning Ye, 644 F.Supp.2d at 117 (quoting Messina, 260 F.Supp.2d at 176). Failure to correct another party's defamatory statement does not satisfy the element of a defamatory statement,[9] so plaintiff has not adequately claimed defamation on the part of Stone and Capital One.
Although plaintiff's allegations do constitute a claim upon which relief can be granted, that claim is limited to Chevy Chase's communications to credit bureaus. Plaintiff has not stated a defamation claim as to the other defendants or to the additional communications.
CONCLUSION
For the reasons stated herein, the Court will grant defendants' motion to dismiss with respect to the following claims: breach of contract (Counts I and XI); tortious interference with contract (Counts II and III); fraud (Count VI); discrimination under the DCHRA (Count VIII); defamation of character as against Stone and Capital One, and plaintiff's claim for defamation of character arising from Chevy Chase's changes in his required methods of payment and the letters sent to plaintiff's household (Count XII in part); and intentional infliction of emotional distress (Counts IX and X). The Court will deny defendants' motion to dismiss with respect to plaintiff's claims for breach of the duty of good faith and faith dealing (Counts IV and V); the violation of the DCCPPA (Count VII); and plaintiff's claim for defamation *58 of character arising from Chevy Chase's statements to credit bureaus (Count XII in part). A separate Order accompanies this Memorandum Opinion.
NOTES
[1] As this case is before the Court pursuant to diversity jurisdiction, the law of the District of Columbia shall govern all substantive issues. See A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp., 62 F.3d 1454, 1458 (D.C.Cir.1995); see also Schleier v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 876 F.2d 174, 180 (D.C.Cir.1989) ("Although the Rules of Decision Act, and hence Erie R.R. v. Tompkins [304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)], do not strictly apply with respect to D.C. law, we apply D.C.'s substantive law analogously for reasons of uniformity and respect for the D.C. Court of Appeals.") (citation omitted).
[2] Plaintiff's nephew signed the loan along with the plaintiff, but he is not a party in this lawsuit. (Am. Compl. ¶ 15.)
[3] The only clearly relevant contractual obligations upon the lender are notice requirements setting out how the bank must communicate with plaintiff. (Deed of Trust at 10 ("in writing," "mailed by first class mail or... actually delivered," and so on).) Those terms are incorporated by reference as the method by which to notify plaintiff of changes to the location where he must send his mortgage payments. (Id. at 4.) Plaintiff does not dispute Chevy Chase's method of notice, so this contractual duty appears to have been satisfied.
The Court also notes that while these requirements impose a duty on the bank to notify plaintiff of changes, they do not require the bank to justify such changes. (Id. at 10.) Plaintiff's Amended Complaint includes in its claim for breach of contract against Chevy Chase allegations that the bank refused to justify or explain changes (Am. Compl. ¶¶ 24, 27, 29), but unless plaintiff alleges that the bank owed him an explanation pursuant to contract (which he does not), the facts pleaded do not amount to a breach of contract.
[4] With regard to his fraud claim, plaintiff urges a lenient interpretation of the pleading requirements, recalling that "the purpose of notice pleading is to put the other party on notice of the claim." (Pl.'s Opp'n at 5.) But an action for fraud requires more than typical notice; its heightened requirements are memorialized in Rule 9(b), and the liberal notice-pleading standard of Rule 8(a)(1) is not applicable.
[5] The underlying claim that Chevy Chase's practices were unlawful under DCCPPA is not at issue for the purpose of defendants' motion to dismiss. The only basis asserted by defendants for dismissal of the DCCPPA claim is that the statute does not extend to the transaction and behavior at issue. (See Capital One MPA at 10-11.) Therefore, the Court need not address either the boundaries of "unlawful trade practices" under the act or their relationship to defendants' acts.
[6] As the Supreme Court has noted, "[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S. Ct. 2789, 69 L. Ed. 2d 672 (1981). As the D.C. courts have not adopted any countervailing canon for the construction of the D.C. Code, the Court will assume that the common law's definition of sale prevails insofar as defining the sale itself is helpful for analyzing the underlying question (of when a party's acts can no longer alter or effectuate a sale).
At least two definitions of property have guided the common law in this country: "Blackstone defines a sale to be `a transmutation of property from one man to another in consideration of some price.' 2 Bl. 446. And Kent says `a sale is a contract for the transfer of property from one person to another for valuable consideration.'" Iowa v. McFarland, 110 U.S. 471, 488, 4 S. Ct. 210, 28 L. Ed. 198 (1884). A definition such as Blackstone's, that focuses on the transfer of property may include the entire mortgage loan period; although property has already been transferred (in the form of cash, financing, and a security interest in the home) much of the property transfer involved in the mortgage remains to be undertaken until the mortgage is repaid. A definition such as Kent's, on the other hand, that focuses on the contract for transfer rather than the transfer itself, suggests an end-point to the sale when the contract is signed. The Supreme Court appears to have settled on Blackstone's transfer-based understanding of a sale, by concluding that "[a] sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent." McFarland, 110 U.S. at 478, 4 S. Ct. 210, quoted in Coltec Indus., Inc. v. U.S., 62 Fed. Cl. 716 (Fed.Cl.2004).
[7] Plaintiff also reports that according to bank employees, defendant's treatment of him has been unique. (Am. Compl. ¶ 99 (alleging that employees conceded "that they had not seen any other situation where Defendant Chevy Chase customers had been subjected to the treatment to which Plaintiff has been subjected").) But uniqueness of treatment does not support a claim of discrimination. If anything, singularity of treatment undercuts the argument that treatment is motivated by plaintiff's race and ethnicity, which, intuition dictates, are far from unique among defendant's customers.
[8] Plaintiff also alleges that Chevy Chase defamed him "when it sent letters to Plaintiff's household alleging that he was in default on his mortgage when, in fact, at that time, he was not in default." (Am. Compl. ¶ 122.) The Court finds that this allegation fails to state a claim for defamation because it does not allege that defendant "published the statement without privilege to a third party." Ning Ye, 644 F.Supp.2d at 117 (emphasis added). The amended complaint does not state whether the letters allegedly sent by Chevy Chase to plaintiff's house were addressed to plaintiff or to other individuals residing there. And "[t]o constitute a publication it is necessary that the defamatory matter be communicated to some one other than the person defamed." Restatement (Second) of Torts § 577 cmt. b. As such, courts have held that "[t]here is no liability for publication when a sealed letter is sent to the plaintiff personally which is unexpectedly opened and read by another." Farris v. Tvedten, 274 Ark. 185, 623 S.W.2d 205, 207 (1981) (citing W. Prosser, The Law of Torts, s 113 n. 41 (4th ed. 1971)); see also Jones v. RCA Music Serv., 530 F. Supp. 767, 768 (E.D.Pa.1982) (dismissing claim for libel where allegedly libelous collection letters were sent only to plaintiff); Ray v. Henco Electronics, Inc., 156 Ga.App. 394, 274 S.E.2d 602 603 (1980) (defamatory language was not "published" by mailing the letter to plaintiff, even if plaintiff circulated letter to third parties, because defendants could not be held responsible for such publication). Although the Court must construe all "reasonable factual inferences in plaintiff's favor," Maljack Prods., Inc., 52 F.3d at 375, the Court finds that it is not reasonable to infer that letters sent by Chevy Chase to plaintiff's household regarding plaintiff's mortgage contract with the bank were addressed to anyone other than plaintiff or that Chevy Chase had reason to know that the letters would be read by anyone other than plaintiff. As such, it will dismiss plaintiff's defamation claim as to these communications.
[9] This conclusion accords with the findings of courts in other jurisdictions that a failure to correct is not an affirmative communication. See, e.g., Carter v. Dep't of Corrections-Santa Clara County, No. C 09-2413, 2010 WL 2681905, at *9 (N.D.Cal. July 6, 2010) (finding that defamation outside of statute of limitations was not continued by defendant's ongoing failure to correct); Hardey v. Newpark Res., Inc., No. 07-9025, 2008 WL 732715, at *1 (E.D.La. Mar. 18, 2008) (failure to correct gives rise to negligence, not defamation, claim under Louisiana law). Cf. Buckines v. Mich. Parole Bd., No. 1:08-CV-17, 2008 WL 696438, at *6 (W.D.Mich. Mar. 12, 2008) (finding that officials' "failure to correct/expunge" false information from a prisoner's record "does not amount to active ... behavior"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2473955/ | 760 F.Supp.2d 640 (2010)
In re VIOXX PRODUCTS LIABILITY LITIGATION.
This Document Relates To All Cases.
MDL No. 1657.
United States District Court, E.D. Louisiana.
October 19, 2010.
*641 Orran L. Brown, Browngreer PLC, Richmond, VA, for Plaintiff.
Eric Michael Liddick, Harry Simms Hardin, III, Madeleine Fischer, Jones Walker, New Orleans, LA, for Vioxx Products Liability Litigation.
ORDER & REASONS
ELDON E. FALLON, District Judge.
Currently pending before this Court is Plaintiff Liaison Counsel ("PLC")'s Motion for an Award of Plaintiffs' Common Benefit *642 Counsel Fees and Reimbursement of Expenses (Rec. Doc. 17642). Having previously resolved the issue of reimbursement of expenses,[1] the Court now turns its attention to a determination of the appropriate common benefit fee amount.[2]
I. FACTUAL BACKGROUND
To put this matter in perspective, a brief review of this litigation is appropriate. This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as Rofecoxib. Merck, a New Jersey corporation, researched, designed, manufactured, marketed and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration approved Vioxx for sale in the United States. Vioxx remained publicly available until September 20, 2004, when Merck withdrew it from the market after data from a clinical trial known as APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarction (heart attack) and ischemic stroke. Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various products liability, tort, fraud, and warranty claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20, 1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States.[3]
California was the first state to institute a consolidated state court proceeding on October 30, 2002. New Jersey and Texas soon followed suit, on May 20, 2003 and September 6, 2005, respectively. On February 16, 2005, the Judicial Panel on Multidistrict Litigation ("MDL") conferred MDL status on Vioxx lawsuits filed in various federal courts throughout the country and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 U.S.C. § 1407. See In re Vioxx Prods. Liab. Litig., 360 F.Supp.2d 1352 (J.P.M.L. 2005). Even after the creation of this federal MDL, many cases remained pending in the various state courts.
On March 18, 2005, this Court held the first status conference in the Vioxx MDL to consider strategies for moving forward with the proceedings. Shortly thereafter, the Court appointed committees of counsel *643 to represent the parties. In addition to a five member Defendants' Steering Committee, see Pretrial Order No. 7 (Apr. 8, 2005), the Court appointed twelve attorneys to serve on the Plaintiffs' Steering Committee ("PSC"), see Pretrial Order No. 6 (Apr. 8, 2005).[4] Thereafter, the PSC created a number of subcommittees which were tasked with focusing on the many aspects of MDL management.[5] Membership on these subcommittees was open to all attorneys who had clients and wanted to participate and was not limited to the members of the Steering Committee.
Furthermore, to give transparency to this litigation, the Court created a web site accessible to all counsel and the public at large. All motions, Court orders, opinions, recent developments, a calendar of scheduled events, and various other matters were posted on this web site.[6] Throughout the litigation monthly status conferences were held in open court. Notice of the meetings were posted on the web site and were open to all. Transcripts of these conferences were posted on the Court's web site for those who could not attend.
On April 8, 2005, the Court appointed a CPA to record and review the submissions of common benefit counsel in this MDL. See Pretrial Order No. 6 (Apr. 8, 2005). Those doing common benefit work and incurring common benefit expenses were ordered to report the hours and expenses to the Court-appointed CPA. Subsequently, the Court entered Pretrial Order No. 19, which established a Plaintiffs' Litigation Expense Fund to compensate and reimburse attorneys for services performed and expenses incurred for the common benefit. Pursuant to this Order, any case that was settled, compromised, dismissed, or otherwise reduced to judgment for monetary relief, with or without trial, was subject to an assessment. In order to avail *644 themselves of the initial work of the common benefit attorneys, individual plaintiffs' counsel could, for a limited time, enter into a contract that was to dictate the assessment amount. The "Full Participation Option," which was one such option, established an assessment of 2% of the recovery for fees and 1% of the recovery for costs. See Pretrial Order No. 19 (Aug. 4, 2005). Counsel were able to select the "Full Participation Option" within 90 days of the entry of Pretrial Order 19. Following that period, counsel could accept a "Traditional Assessment Option" providing for 6% assessment of recoveries in MDL cases and 4% assessment of recoveries in state court cases.
Discovery rapidly commenced. The common benefit attorneys were responsible for all aspects of pre-trial preparation, including document discovery, the taking of depositions, preparation of experts, motions practice, and to some extent, coordination of federal and state court proceedings. Millions of documents were discovered and collated. Thousands of depositions were taken and at least 1,000 discovery motions were argued. After a reasonable period for discovery, the Court assisted the parties in selecting and preparing certain test cases to proceed as bellwether trials. Additionally, similar trials were scheduled in state court.
This Court conducted six Vioxx bellwether trials.[7] The first of the bellwether trials took place in Houston, Texas, while this Court was displaced following Hurricane Katrina. The five subsequent bellwether trials took place in New Orleans, Louisiana. Only one of the trials resulted in a verdict for the plaintiff. Of the five remaining trials, one resulted in a hung jury and four resulted in verdicts for the defendant. During the same period that this Court was conducting six bellwether trials, approximately thirteen additional Vioxx-related cases were tried before juries in the state courts of Texas, New Jersey, California, Alabama, Illinois, and Florida. With the benefit of experience from these bellwether trials, as well as the encouragement of the several coordinated courts,[8] the parties soon began settlement discussions in earnest.
The Court appointed Negotiating Plaintiffs' Counsel ("the NPC") to explore and engage in settlement discussions with Merck. Counsel for Merck and the NPC met together more than fifty times and held several hundred telephone conferences. Although the parties met and negotiated independently, they kept this Court and the coordinate state courts of Texas, New Jersey, and California informed of their progress in settlement discussions.
On November 9, 2007, Merck and the NPC formally announced that they had reached a Settlement Agreement. See Settlement Agreement, In re Vioxx Prods. Liab. Litig., MDL 1657 (E.D.La. Nov. 9, 2007) ("Settlement Agreement" or *645 "MSA"), available at http://www. browngreer.com/vioxxsettlement. The private Settlement Agreement establishes a pre-funded program for resolving pending or tolled state and federal Vioxx claims against Merck as of the date of the settlement, involving claims of heart attack ("MI"), ischemic stroke ("IS"), and sudden cardiac death ("SCD"), for an overall amount of $4.85 billion. Id. § "Recitals".[9] The Settlement Agreement is a voluntary opt-in agreement and expressly contemplates that this Court shall oversee various aspects of the administration of settlement proceedings, including appointing a Fee Allocation Committee, allocating a percentage of the settlement proceeds to a Common Benefit Fund, approving a cost assessment, and modifying any provisions of the Settlement Agreement that are otherwise unenforceable.[10] Accordingly, this Court has consistently exercised its inherent authority over the MDL proceedings, see Manual for Complex Litigation (Fourth) §§ 10.224, 14.215-16, 14.231-.216 (2004), in coordination with its express authority under the terms of the Settlement Agreement to ensure that the settlement proceedings move forward in a uniform and efficient manner.[11]
As part of the Settlement Agreement, the parties included a provision that expressly provides for a common benefit fee assessment to be fixed by the Court. Id. § 9.2. Specifically, the Settlement Agreement provides that:
[t]o ensure that [the common benefit attorneys] are fairly compensated but that their fees are in conformance with reasonable rates, an assessment of common benefit attorneys' fees will be imposed at no more than 8% of the gross amount recovered for every client that registers under the terms of the Settlement Agreement.
Id. § 9.2.1. Additionally, the Settlement Agreement states that this common benefit fee assessment supersedes the assessments provided for in Pretrial Order No. 19. Id. ("The maximum 8% attorneys' fee assessment shall supersede the assessment provided to MDL common benefit attorneys pursuant to Pretrial Order No. 19.")
On July 17, 2008, Merck formally announced that it was satisfied that the thresholds necessary to trigger funding of the Vioxx Settlement Program would be met. See Minute Entry, July 17, 2008, Rec. Doc. 15362 (July 17, 2008). Merck further advised that it intended to waive *646 its walk away privileges and that it would commence funding the Vioxx Settlement Program by depositing an initial sum of $500 million into the settlement fund, clearing the way for distribution of interim payments to eligible claimants. Id. Eventually some 99.9% of all eligible claimants enrolled in the program.
The Settlement Program proceeded at a very rapid rate in order to ensure that the plaintiffs would recover in a timely fashion. Final payments to heart attack claimants were completed prior to October 14, 2009, final payments to stroke claimants were completed by June 14, 2010, and final extraordinary injury payments were completed by June 29, 2010. Thus, in only 31 months, the parties to this case were able to reach a global settlement and distribute $4,353,152,064 to 32,886 claimants, out of a pool of 49,893 eligible and enrolled claimants. This efficiency is unprecedented in mass tort settlements of this size. It was due in large part to the ability, industry, and professionalism of the attorneys for both sides and the plan administrators.
Before the pay outs commenced the Court turned its attention to attorneys' fees for primary counsel, or counsel who were retained directly by the claimants. Primary counsel came from nearly every state in the Union. Their fee contracts ranged from 33 1/3% to over 40%. This inconsistency of fees for attorneys doing roughly the same work and having the same responsibility seemed unsustainable and inappropriate. Moreover, one benefit of the MDL process is economy of scale, namely the principle of obtaining an economic benefit from sheer numbers. It appeared to the Court that the claimants themselves were the only ones not benefitting from this principle. Accordingly, the Court issued an Order & Reasons, which provided "that contingent fee arrangements for all attorneys representing claimants in the Vioxx global settlement shall be capped at 32% plus reasonable costs." Order & Reasons, August 27, 2008, Rec. Doc. 15722, 20-21 (Aug. 27, 2008) (published as In re Vioxx Prods. Liab. Litig., 574 F.Supp.2d 606 (E.D.La.2008)). Following this Order, a group of five attorneys, identified as the Vioxx Litigation Consortium ("VLC"), filed a Motion for Reconsideration/Revision of the Court's Order Capping Contingent Fees and Alternatively for Entry of Judgment. (Rec. Doc. 17395). The matter was set for hearing and the Tulane Law Clinic was appointed to represent the claimants themselves since there was a clear conflict between the claimants and their counsel. After extensive briefing and a hearing, the Court affirmed its position with the alteration that would allow the Court to deviate from the 32% cap in appropriate rare circumstances. In re Vioxx Prods. Liab. Litig., 650 F.Supp.2d 549 (E.D.La.2009). The Court's ruling was appealed to the Fifth Circuit Court of Appeals but after a time the appeal was withdrawn.
The PLC filed the instant motion on January 20, 2009, requesting a common benefit fee award of 8% of the $4.85 billion settlement amount. This amount was to come out of the attorneys' fees of primary counsel. The motion was sent to all parties and announced by the Court at public status conferences. On April 16, 2009, the Court invited any interested party to file a Notice of Objection on or before May 8, 2009. After receiving numerous objections, the Court concluded that it would be appropriate to appoint a Liaison Counsel for the Common Benefit Fee Application Objectors and appointed Michael Stratton to this role. See Pretrial Order No. 52 (Sept. 30, 2009). Thereafter, numerous status conferences were convened, discovery was taken, briefing was submitted, and arguments were heard. While the matter was pending before this Court, the PLC *647 reduced its request for a common benefit fee award to 7.5% and the objectors withdrew their objections. With this back story in mind and after considering the briefs and oral argument, the Court is now fully apprised of the factual and legal issues involved in the PLC's request and is ready to rule.
II. COMMON BENEFIT ATTORNEYS' FEESLAW & ANALYSIS
A. Introduction
"[U]nder the `American Rule,' the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 561, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (quotation omitted). Likewise, the attorney for the prevailing litigant must generally look to his or her own client for payment of attorneys' fees. Since the nineteenth century, however, the Supreme Court has recognized an equitable exception to this rule, known as the common fund or common benefit doctrine, that permits the creation of a common fund in order to pay reasonable attorneys' fees for legal services beneficial to persons other than a particular client, thus spreading the cost of the litigation to all beneficiaries. See In re Zyprexa Prods. Liab. Litig., 594 F.3d 113, 128 (2d Cir.2010) (Kaplan, J., concurring).[12] This equitable common fund doctrine was originally, and perhaps still is, most commonly applied to awards of attorneys' fees in class actions. E.g., 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 13:76 (4th ed. 2002) (discussing common fund doctrine in context of class actions); Fed.R.Civ.P. 23(h).
But the common fund doctrine is not limited solely to class actions. See Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (employing common benefit doctrine to award fees and costs to litigant whose success benefitted unrelated parties by establishing their legal rights); Alan Hirsh & Diane Sheeley, Fed. Judicial Ctr., Awarding Attorneys' Fees and Managing Fee Litigation 51 (2nd ed. 2005) ("Although many common fund cases are class actions . . . the common fund doctrine is not limited to class actions."); Manual for Complex Litigation (Fourth) § 14.121 (2004). As class actions morph into multidistrict litigation, as is the modern trend, the common benefit concept has migrated into the latter area. The theoretical bases for the application of this concept to MDLs are the same as for class actions, namely equity and her blood brother, quantum meruit. However, there is a difference. In class actions the beneficiary of the common benefit is the claimant; in MDLs the beneficiary is the primary attorney.
MDL courts have consistently cited the common fund doctrine as a basis for assessing common benefit fees in favor of attorneys who render legal services beneficial to all MDL plaintiffs. E.g., In re Genetically Modified Rice Litig., MDL *648 No. 06-1811, 2010 WL 716190, at *4 (E.D.Mo. Feb. 24, 2010) (relying on common fund doctrine as an alternate basis to inherent managerial authority and concluding that "[b]oth sources of authority provide the same result"); In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., MDL No. 05-1708, 2008 WL 682174, at *4 (D.Minn. Mar. 7, 2008); accord In re Zyprexa, 594 F.3d at 128-30 (Kaplan, J., concurring).[13]
In addition to judicial precedent the Court also finds authority to assess common benefit attorneys' fees in its inherent managerial authority, particularly in light of the complex nature of this MDL. The Fifth Circuit has long recognized that a court's power to consolidate and manage litigation necessarily implies a corollary authority to appoint lead or liaison counsel and to compensate them for their work. See In re Air Crash Disaster at Fl. Everglades on Dec. 29, 1972, 549 F.2d 1006 (1977) ("Everglades"). In Everglades, the JPML transferred all federal cases arising out of a passenger plane crash near Miami to the Southern District of Florida. Id. at 1008. The transferee court appointed a Plaintiffs' Committee to coordinate discovery and pretrial matters, and then to conduct bellwether trials. Id. The court compensated the Committee through an assessment on the contingent fees of attorneys who represented MDL plaintiffs but were not on the Committee. Id. The non-Committee attorneys appealed and the Fifth Circuit upheld the district court's authority to make that assessment. The Fifth Circuit explained that a district court has inherent authority "to bring management power to bear upon massive and complex litigation to prevent it from monopolizing the services of the court to the exclusion of other litigants." Id. at 1012. Therefore, an MDL court "may designate one attorney or set of attorneys to handle pre-trial activity on aspects of the case where the interests of all co-parties coincide." Id. at 1014. Naturally, this authority would be "illusory if it is dependent upon lead counsel's performing the duties desired of them for no additional compensation." Id. at 1016. Assessment of those fees against other retained lawyers who benefitted from the work done was permissible and appropriate. See id. at 1019-20.[14] Other courts have applied this inherent authority to compensate common benefit counsel in complex litigation. E.g., In re Diet Drugs, 582 F.3d 524, 546-47 (3rd Cir.2009); In re Genetically Modified Rice Litig., 2010 WL 716190, at *4 ("An MDL court's authority to establish a trust and to order compensations to compensate leadership counsel derives from its `managerial' power over the consolidated litigation, and, to some extent, from its inherent equitable power."); In re Guidant, 2008 WL 682174, at *5; In re Zyprexa Prods. Liab. Litig., 467 F.Supp.2d 256, 265-66 *649 (E.D.N.Y.2006); In re Linerboard Antitrust Litig., 292 F.Supp.2d 644, 653-56 (E.D.Pa.2003); see also Manual for Complex Litigation (Fourth) § 22.62 (2004); Restatement (Third) of Restitution § 30 Reporter's Note b (Tentative Draft No. 3, 1994) ("In contrast to the standard view of class-action fees, which explains them as restitutionary, the leading accounts of fees to court-appointed counsel in consolidated litigation properly emphasize factors independent of restitution to justify the imposition of a liability by court order.") (citing Everglades).
In addition to equity, quantum meruit, and inherent managerial authority, the Court derives express authority in this case from the terms of the Settlement Agreement entered into by the parties and consented to by their primary attorneys. Section 9.2 of the Settlement Agreement governs common benefit fees and expressly authorizes the Court to determine common benefit attorneys' fees. Settlement Agreement § 9.2.5.[15] In fact the PLC asks the Court to exercise the aforementioned authority and award common benefit fees under the terms of the Settlement Agreement.
Although the Objectors have now withdrawn their objections to this fee request, the Court has had the benefit of their briefing and argument, as well as briefs and supplemental briefs from the PLC honed through the fair opportunity for objection.[16]Compare In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30, 38 (D.N.H. 2006) ("With no adversary to challenge the Plaintiffs' proposal, the Court has been left to fend for itself in crafting an approach for assessing reasonableness."). Merck has remained silent pursuant to the terms of the Settlement Agreement. Settlement Agreement § 9.2.6.
The PLC contends in its briefing and argument that its requested award of 7.5% of the settlement amount as common benefit fees is justified by other common benefit assessments and awards in MDL cases, by the work done, by a review of the Johnson factors, and by a lodestar cross-check. Keeping in mind that the ultimate *650 goal is reasonableness while mindful that reasonableness, like beauty, is often in the eye of the beholder, the Court is prepared to rule.
B. Methodology for Calculation of Attorneys' Fees
1. Generally
Over the years courts have employed various methods to determine the reasonableness of an award of attorneys' fees. These methods include the "lodestar" method, which entails multiplying the reasonable hours expended on the litigation by an adjusted reasonable hourly rate, see Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 583 & n. 15 (5th Cir.1980); the percentage method, in which the Court compensates attorneys who recovered some identifiable sum by awarding them a fraction of that sum; or, more recently, a combination of both methods in which a percentage is awarded and checked for reasonableness by use of the lodestar method.
In the Fifth Circuit, attorneys' fees have traditionally been calculated using the lodestar method. The resulting lodestar figure, or the product of the reasonable hours worked by the reasonable hourly rate, is then adjusted by a multiplier in light of the twelve Johnson factors. See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). These factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id.; see also Von Clark v. Butler, 916 F.2d 255, 258 n. 3 (5th Cir. 1990).[17]
The lodestar method is not without flaws, especially when employed in common fund cases. As an influential report by the Third Circuit Task Force concluded, the drawbacks of the lodestar method include:
(1) increased workload on an already overtaxed judicial system, (2) inconsistent application of the approach and widely varied fee awards, (3) illusory mathematical precision unwarranted by the realities of the practice of law, (4) potential for manipulation, (5) reward of wasteful and excessive attorney effort, (6) disincentive for early settlement, (7) insufficient flexibility for judicial control of litigation, (8) discouragement of public interest litigation, and (9) confusion and lack of predictability in setting fee awards.
See Vaughn R. Walker & Ben Horwich, The Ethical Imperative of a Lodestar Cross-Check: Judicial Misgivings About *651 "Reasonable Percentage" Fees in Common Fund Cases, 18 Geo. J. Legal Ethics 1453, 1456 (2005) (summarizing Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237 (1985)) (internal quotations omitted).
In reaction to the difficulties with the lodestar method, courts turned to awarding a percentage of the recovered common benefit fund as attorneys' fees. The popularity of this method gained momentum following the publication of the aforementioned Third Circuit Task Force report in 1985. Recognizing the "contingent risk of nonpayment" in such cases, courts have found that class or lead counsel ought to be compensated "both for services rendered and for risk of loss or nonpayment assumed by carrying through with the case." In re Combustion, Inc., 968 F.Supp. 1116, 1132 (W.D.La.1997) (summarizing the various methods used to calculate attorneys' fees); see In re Cabletron, 239 F.R.D. at 37 (stating that the percentage method "allows courts to award fees from the fund in a manner that rewards counsel for success and penalizes it for failure") (quotation omitted); see also Samuel R. Berger, Court Awarded Attorneys' Fees: What is "Reasonable"?, 126U. Pa. L. Rev. 281 (1977). Moreover, courts find that the percentage method provides more predictability to attorneys and class members or plaintiffs, encourages settlement, and avoids protracted litigation for the sake of racking up hours, thereby reducing the time consumed by the court and the attorneys. See Walker & Horwich, supra, at 1456-57 (citing In re Activision Sec. Litig., 723 F.Supp. 1373, 1378 (N.D.Cal.1989)); accord In re Diet Drugs, 582 F.3d at 540.
While the United States Supreme Court has approved the percentage method in common fund cases, it has never formally adopted the lodestar method in common fund cases. See Camden I Condo. Ass'n v. Dunkle, 946 F.2d 768, 773-74 (11th Cir. 1991) (reading Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), as the Supreme Court's "acknowledgment" of the percentage method in common fund cases); In re Prudential-Bache Energy Income P'ships Sec. Litig., MDL No. 888, 1994 WL 150742, (E.D.La. Apr. 13, 1994) (tracing the history of the various methods). Conversely, the Fifth Circuit appears to be the only Court of Appeals that has not explicitly endorsed the percentage method. Manual for Complex Litigation (Fourth) § 14.121 (2004). However, neither has the Fifth Circuit "explicitly disapproved of the percentage method of calculating fees in common fund cases." In re OCA, Inc. Sec. & Derivative Litig., No. 05-2165, 2009 WL 512081, at *18 (E.D.La. Mar. 2, 2009) (emphasis added). Therefore, the Fifth Circuit appears to tolerate the percentage method, so long as the Johnson framework is utilized to ensure that the fee awarded is reasonable. See id.; Strong v. BellSouth Telecomms., Inc., 137 F.3d 844, 851-52 & n. 5 (5th Cir.1998); Forbush v. J.C Penney Co., 98 F.3d 817, 823-25 (5th Cir.1996).
Accordingly, numerous district courts in this Circuit have applied a "blended" percentage method to determine a reasonable fee award, while staying within the Johnson framework. See, e.g., In re OCA, 2009 WL 512081, at *19; In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F.Supp.2d 732, 766, 778 (S.D.Tex.2008); Turner v. Murphy Oil USA, Inc., 472 F.Supp.2d 830, 859-61 (E.D.La.2007); In re Bayou Sorrel Class Action, No. 04-1101, 2006 WL 3230771, at *3 (W.D.La. Oct. 31, 2006); In re Educ. Testing Serv. Praxis Principles of Learning & Teaching: Grades 7-12 Litig., 447 F.Supp.2d 612, 628-29 (E.D.La.2006); Batchelder v. Kerr-McGee Corp., 246 F.Supp.2d 525, 531 (N.D.Miss.2003); In re Combustion, Inc., 968 F.Supp. at 1135-36; In re Catfish *652 Antitrust Litig., 939 F.Supp. 493, 499-501 (N.D.Miss.1996).
Keeping in line with Fifth Circuit precedent and this Court's prior experience, the Court finds that the blended percentage approach is an appropriate method for calculating reasonable common benefit attorneys' fees in this case. Accordingly, the Court will first determine the valuation of the benefit received by the claimants and then select an initial benchmark percentage. The Court will then determine whether the benchmark should be adjusted based on the application of the Johnson factors to the particular circumstances of this case. Finally, the Court will conduct a rough lodestar analysis to cross-check the reasonableness of the percentage fee award. The lodestar analysis is not undertaken to calculate a specific fee, but only to provide a broad cross check on the reasonableness of the fee arrived at by the percentage method.
2. Valuation of the Benefit Obtained
The Settlement Agreement created a $4.85 billion fund for the compensation of Vioxx claimants. Out of that amount, $4 billion was allotted to myocardial infarction claims, and $850 million to ischemic stroke claims. The Court finds no reason to omit any portion of that settlement fund from consideration with respect to the reasonable amount of common benefit fees. Accordingly, $4.85 billion is the appropriate amount for calculation of a reasonable percentage of common benefit fees.
3. Benchmark Percentage
The next task is to determine an initial benchmark percentage. The Court's goal in setting a benchmark percentage is not to rubber-stamp the PLC's proposed figure. Rather, the Court will endeavor to arrive at an independent and justified reasonable percentage appropriate to the facts particular to this global settlement. To accomplish that end, several resources may be utilized.
First, this Court is among the many throughout the country that have considered data compiled in a pair of recent empirical studies of attorneys' fees in class action settlements, Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees in Class Action Settlements: An Empirical Study, 1 J. Empirical Legal Stud. 27, 31-32 (2004) ("Eisenberg & Miller 2004"), and Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees and Expenses in Class Action Settlements: 1993-2008, 7 J. Empirical Legal Stud. 248 (2010) ("Eisenberg & Miller 2010"), when computing the appropriate benchmark percentage in a class settlement. See In re Lawnmower Engine Horsepower Mktg. & Sales Practices Litig., 733 F.Supp.2d 997, 1012-15 (E.D.Wis. 2010); Murphy Oil, 472 F.Supp.2d at 862-64; In re ETS, 447 F.Supp.2d at 630; Allapattah Servs., Inc. v. Exxon Corp., 454 F.Supp.2d 1185, 1212 (S.D.Fla.2006); In re Cabletron Sys., 239 F.R.D. at 37 n. 12, 41. The Eisenberg and Miller studies are helpful for providing concrete evidence for the relationship between the amount recovered and the attorneys' fee award; the empirical data shows that as settlement amounts rise, the reasonable percentage of attorneys' fees decreases. Eisenberg & Miller 2004 at 54-55; Eisenberg & Miller 2010 at 263-65. However, given the amount of the settlement in the Vioxx MDL and the opt-in nature of the Master Settlement Agreement, the studies are of limited usefulness in determining a reasonable benchmark percentage for a common benefit fee award.[18] Eisenberg and Miller studied *653 settlements of class actions, and although this Court has recognized that in some respects the MDL resembles a class action, in other respects this case is quite different.
In a typical application for a class action fee award, the Court allocates a percentage of the class's recovery to class counsel as compensation. Fed.R.Civ.P. 23(h). Class counsel perform all the work on behalf of the class and are the sole attorneys for the class members. With few exceptions, all work done by class counsel benefits all members in the class and not just the lead plaintiffs. Thus, in a typical class action fee award the tension is between the interests of counsel in receiving reasonable compensation for their work, and class members in ensuring that counsel does not receive a windfall.
The dynamic involved in the fee application in the present case is different. The Settlement Agreement was not a class action settlement, but was rather a complicated opt-in resolution of individual personal injury claims. The vast majority of these personal injury claims were governed by a contingent fee contract between the individual claimant and his or her primary attorney. The Court, as mentioned, previously capped the amount of those contingent fee contracts at 32%. By the terms of the Settlement Agreement and this Court's Order capping fees, a common benefit award is deducted not from the claimant's portion but from the total amount of counsel fees payable under the individual contingent fee arrangements. Thus, 32% of $4.85 billion represents the total amount of possible attorney compensation, including work done by the claimant's primary attorney on his or her behalf and work done by common benefit attorneys on behalf of all Vioxx claimants. The tension in this case is between the attorneys who have done common benefit work and the primary attorneys who have not.
Members of the PSC and others who performed common benefit work in the MDL are undoubtedly entitled to compensation. So, too are the primary attorneys who represented individual claimants and bore the responsibility of obtaining information from them and keeping them advised of all developments. This Court has acknowledged the substantial work done by individual attorneys. In re Vioxx, 650 F.Supp.2d at 564. But the undeniable fact remains that the great bulk of the work as well as the expense was borne by the attorneys who performed common benefit work. Thus, in determining a reasonable common benefit fee the Court must resolve the "taffy pull" between the interests of common benefit counsel and primary attorneys in receiving fair compensation for their respective work. At first blush to award common benefit fees might be criticized as double dipping and not appropriate. But on closer scrutiny it clearly is not. It is true that many of those who have done common benefit work have their own clients and have received or will receive a fee from them. But it is not double dipping because the common benefit fee will not come from any client. Instead it will come from the attorneys, most of whom have not done any common benefit work but have received enormous benefit from it. Thus as between a common benefit attorney who expended considerable time, resources, and took significant economic risks to produce the fee, and the primary attorney who did not, it is appropriate and equitable that the former receive some economic recognition from the beneficiary of this work.
*654 To determine an appropriate common benefit fee in this case the Court looks to comparable MDL set-aside assessments and awards of common benefit fees. Two notable examples are found in the Zyprexa and Guidant litigations, which this Court has previously cited as being similar to the Vioxx litigation. In In re Zyprexa, the court established two separate common benefit funds to compensate common benefit work done by two separate Plaintiffs' Steering Committees. The first PSC was compensated by a set-aside of 1% of the gross amount of a master settlement, plus interest on the amount held in escrow. See In re Zyprexa, 467 F.Supp.2d at 263. A second fund was established to compensate the second PSC through a 3% hold-back of any subsequent recoveries, to be split evenly between the claimant's recovery and the fees otherwise payable to the individual attorney. See In re Zyprexa, 467 F.Supp.2d at 261; In re Zyprexa, MDL No. 1596, 2007 WL 2340790, at *1 (E.D.N.Y. Aug. 17, 2007). The court in Zyprexa also capped contingent fees at 35% of amounts greater than $5,000. In re Zyprexa, 424 F.Supp.2d 488 (E.D.N.Y. 2006).
In In re Guidant, the court awarded 14.375% of a global settlement amount as a common benefit award and initially capped individual contingent fees at 20%. In re Guidant, 2008 WL 451076, at *1. The court found that the parties had contracted around a previous 4% common benefit fee assessment by entering into a Master Settlement Agreement. Id. at *11-12. In a subsequent reconsideration, the court capped the total attorney fees (including the share of the common benefit award plus individual contingent fees) at the lowest of 37.18%, or a lower contingent fee arrangement, or a state-imposed contingent fee limit. In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., MDL No. 05-1708, 2008 WL 3896006, at *1 (D.Minn. Aug. 21, 2008).
Other MDL courts have also established funds for common benefit compensation by ordering set-aside assessments of individual plaintiff settlements and awarded fees from those funds. E.g., In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., 553 F.Supp.2d 442, 457-58, 491-96 (E.D.Pa. 2008) (describing 9% federal and 6% state assessments later reduced to 6% and 4%, respectively; awarding less than total fund created by assessments); In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 268 F.Supp.2d 907, 909, 919 n. 19 (N.D.Ohio 2003) (awarding common benefit fees out of $50,000,000 fund created through assessment representing 4.8% of settlement value); In re Protegen Sling & Vesica Sys. Prods. Liab. Litig., MDL No. 1387, 2002 WL 31834446, at *1, *3 (D.Md. Apr. 12, 2002) (9% federal, 6% coordinated state assessments); In re Rezulin Prods. Liab. Litig., MDL No. 1348, 2002 WL 441342, at *1 (S.D.N.Y. Mar. 20, 2002) (6% withholding in federal cases, 4% in participating state cases); In re Orthopedic Bone Screw Prods. Liab. Litig., MDL No. 1014, 2000 WL 1622741 (E.D.Pa. Oct. 23, 2000) (awarding full 12% of withheld fees); see also Rubenstein, supra at 87 (2009) (collecting cases and concluding that most common benefit assessments range from 4% to 6%); 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 14:9 (4th ed. 2002) ("Most [MDL] courts have assessed common benefit fees at about a 4-6% level, generally 4% for a fee and 2% for costs."); Paul D. Rheingold, Litigating Mass Tort Cases § 7:35 (2010) ("[P]ercentages awarded for common funds in recent MDLS . . . were in the 4-6% range.") (citation omitted).
These examples demonstrate that a reasonable common benefit assessment or *655 award can vary from MDL to MDL and that there is no mathematical formula for deriving a "correct" amount. Indeed, the Court notes that the PLC initially requested a common benefit award of 8% and contended such an amount would be presumptively reasonable. A year and a half later, after Objector's Liaison Counsel had an opportunity for discovery, the PLC reduced its common benefit award request to 7.5%. If 8% was presumptively reasonable but the PLC nonetheless voluntarily reduced the request to 7.5%, the Court is led to conclude that even the PLC believes that a reasonable benchmark percentage is a flexible concept. With that this Court agrees.
In light of the foregoing, and guided by this Court's observations over the last five years of the nature and scope of the work and effort of those attorneys who performed common benefit work, the Court finds that 6% of the settlement amount is a reasonable benchmark percentage for a common benefit fee award. This figure represents about 20% of the total attorneys' fees. This figure is within the range of MDL awards and assessments described above. No part of this 6% will come from the recovery of any Vioxx claimant; rather, it will be assessed against the contingent fee recoveries of all Vioxx primary plaintiffs' attorneys. Furthermore, in recommending the Settlement Agreement to their clients and participating in the Settlement Program, all Vioxx primary plaintiffs' attorneys consented to a common benefit assessment of up to 8%. Accordingly, an assessment of 6% is clearly acceptable to them. It is now appropriate to test this percentage in the crucible of the Johnson factors to determine whether an adjustment, upwards or downwards, is in order.
4. Consideration of the Johnson Factors
The Court will now consider the Johnson factors, addressing them in conjunction with the circumstances of this case.[19]
(a) The Time and Labor Required; Time Limitations Imposed by the Client or the Circumstances; The Preclusion of Other Employment by the Attorney Due to Acceptance of the Case
Throughout the Vioxx litigation, the Court has repeatedly expressed its intent and desire to see an expedited resolution. Indeed, all interested parties, including the PSC and Merck, have recognized that prompt resolution would be invaluable to those impacted by Vioxx. The Herculean effort expended by the PSC and other counsel performing common benefit work in realizing that goal can hardly be understated. They have documented and submitted over 560,000 hours of work during the course of this litigation. As a matter of fact this Court finds that this is a realistic and fair assessment of the work required to bring about the achieved result.
Counsel met and exceeded this Court's desire for expedited resolution of this matter. Following the formal appointment of the PLC and the PSC, the attorneys committed to intensive discovery and pretrial efforts. The PSC operated on many fronts, preparing pleadings and Master Class Action complaints, taking over 2,000 *656 depositions, reviewing and compiling over 50,000,000 documents, briefing and arguing over 1,000 discovery motions, assembling a trial package, conducting bellwether trials, negotiating the global Settlement Agreement, and implementing the payout under the Agreement. The time and labor expended in this effort is impressive.
The Johnson court explained that the "time limitations factor imposed by the client or the circumstances" factor is intended to address "[p]riority work that delays the lawyer's other legal work" or the situation in which "a new counsel is called in to prosecute the appeal or handle other matters at a late stage in the proceedings." Johnson, 488 F.2d at 718. This factor encompasses the same considerations discussed in connection with the "time and labor" factor. Likewise, the "time and labor" and "preclusion of other employment" factors appear to the Court to overlap. Collectively, these three factors require the Court to give appropriate credit to the intensive and sustained efforts of common benefit counsel to bring this litigation to a timely resolution. Bellwether trials began within a year of the MDL designation. Settlement was achieved within three years, interim payments began within a year of the settlement agreement, and final resolution of nearly 50,000 claims was made between one and two years thereafter. The "time and labor" factor warrants a moderate upward variance.
(b) The Novelty and Difficulty of the Questions; The "Undesirability" of the Case
The Vioxx litigation was novel and difficult on a variety of levels. Substantively, the litigation required complex medical and scientific knowledge, including analysis of pharmaceutical trials and causation issues. Globally, the parties hotly disputed the general causation question of whether Vioxx caused the sorts of injuries alleged as well as the significance of various pharmaceutical studies. Individually, each Vioxx case tried before this Court and the coordinated state courts involved unique, complicated, and disputed issues of specific causation. The legal aspects of the litigation were equally diverse and complicated. As this Court previously observed:
[T]his is essentially a products liability case, and all products liability cases pose significant challenges to plaintiffs' counsel. . . . In addition, the basic challenges inherent in any products liability case were compounded in this case by a host of complex legal issues unique to the instant litigation, including (to name only a few) the learned intermediary doctrine, contributory negligence, causation, federal preemption laws, and Merck's assertion of attorney-client privilege with respect to thousands of documents in its possession.
574 F.Supp.2d at 616-17. Finally, the sheer magnitude of the Vioxx litigation posed its own legal, logistical, and managerial challenges. Accordingly, the novelty and difficulty of the questions confronted by the PSC and other common benefit attorneys weighs in favor of an upward adjustment.
On the other hand, the Court finds that the complexity and difficulty of this litigation does not imply any "undesirability" in the Johnson framework. The Johnson court offered as an example a civil rights attorneys whose representation of an unpopular client may "not [be] pleasantly received by the community or his contemporaries" and "can have an economic impact on his practice." 488 F.2d at 719. The Court finds that the Vioxx litigation was not undesirable in this sense, and this factor does not affect the Court's analysis.
*657 (c) The Skill Requisite to Perform the Legal Service; The Experience, Reputation, and Ability of the Attorneys
The Court recognizes the expertise possessed and employed by the PSC and other common benefit attorneys to bring this litigation to its successful resolution. The attorneys doing common benefit work are among the finest attorneys practicing in the field. However, the primary attorneys who represented individual Vioxx claimants also brought substantial skill and ability to bear in assessing cases, instructing their paralegals on properly and efficiently collecting information and filling out various forms, and assisting their clients through the settlement process. The Court cannot say that the skill required and the skill brought to bear by attorneys doing common benefit work was so superior to that possessed by primary attorneys representing individual clients as to warrant a Johnson adjustment which would in effect shift attorneys' fees from one group to the other. There were many excellent, hard-working attorneys who did not make it on to the PSC simply due to limitations of committee size. Accordingly, neither of these factors call for an adjustment of the benchmark percentage in this case.
(d) Nature and Length of the Professional Relationship with the Client
The PSC states that this factor is "neutral as it relates to the requested percentage since there are few, if any, longstanding client relations with the Vioxx Claimants." (Rec. Doc. 17642-3 at 65). The Court agrees. "`The relationship did not antedate the litigation, nor will it likely continue beyond the closure of this case.'" Murphy Oil, 472 F.Supp.2d at 866-67 (quoting In re ETS, 447 F.Supp.2d at 632).
(e) Customary fee; Whether the Fee is Fixed or Contingent
"These factors primarily deal with the expectation of plaintiffs' attorneys at the outset of the case when measuring the risks involved and deciding whether to accept the case." Murphy Oil, 472 F.Supp.2d at 866 (citing Johnson, 488 F.2d at 718). "In effect, these factors seek to reward the attorney for accepting the risk and achieving successful results." Id. The PLC argues that the Vioxx litigation was fraught with risk for plaintiffs' attorneys, and furthermore that in light of customary fees their requested 7.5% is appropriate compensation for common benefit work. The Court has already recognized the novelty and the substantial legal hurdles to successfully resolving these claims in connection with a prior Johnson factor. Furthermore, at an early stage in this litigation the Court established a fund to compensate attorneys for common benefit fees and expenses; accordingly, the risk assumed by common benefit attorneys was somewhat mitigated. Finally, the Court's analysis of the range of common benefit fee awards and assessments in other MDLs adequately addresses the customary fee. These factors in and of themselves do not warrant adjustment of the benchmark percentage.
(f) The Amount Involved and the Results Obtained
Attorneys doing common benefit work on behalf of Vioxx users have achieved a favorable and meaningful global resolution:
This is not a case in which the class receives only illusory benefits in the form of coupons or discounts. Rather, counsel has achieved a substantial settlement in an efficient manner that minimizes the drain on the parties' and the Court's resources. Counsel also devised a plan for distribution of the fund and *658 payment of claims that is practical, streamlined and fair.
In re ETS, 447 F.Supp.2d at 632.
As discussed above, resolution of this multidistrict litigation through the global Settlement Agreement was vastly preferable to expensive and time-consuming case-by-case trial of individual Vioxx claims, or to piecemeal settlement. The Settlement Agreement ensured fair and comprehensive compensation to all qualified participants. The overwhelming participation rate of 99.9% further underscores the benefit of the results obtained. PSC members achieved more than a fair and adequate bargain for Vioxx users. Thus, the Court finds that this factor supports an upward adjustment of the benchmark percentage.
(g) Awards in Similar Cases
As the Court described above, there is a wide range of common benefit fee assessments and awards in MDL cases and other complex litigation. E.g., In re Diet Drugs, 553 F.Supp.2d at 457-58, 491-96 (describing various 9% federal and 6% state assessments later reduced to 6% and 4%, respectively; awarding less than total fund created by assessments); Guidant, 2008 WL 451076, at *1 (14.375% of settlement value); In re Zyprexa, 467 F.Supp.2d at 261-63 (1% and 3% of separate settlement amounts); In re Sulzer Hip Prosthesis & Knee Prosthesis, 268 F.Supp.2d at 909, 919 n. 19 (awarding common benefit fees out of $50,000,000 fund created through assessment representing 4.8% of settlement value); In re Protegen Sling & Vesica Sys., 2002 WL 31834446, at *1, *3 (9% federal, 6% coordinated state assessments); In re Rezulin, 2002 WL 441342, at *1 (6% withholding in federal cases, 4% in participating state cases); In re Orthopedic Bone Screw, 2000 WL 1622741 (awarding full 12% of withheld fees); see generally Paul D. Rheingold, Litigating Mass Tort Cases § 7:46 et seq. (2010) (collecting fee award case histories). The 6% benchmark percentage is comfortably within that range, and not so out of line that it requires upward or downward adjustment.
5. Adjusted Benchmark Percentage
The Court has found that at least three of the Johnson factors warrant an upward adjustment of the benchmark percentage. Based on its observation and knowledge of the amount and nature of the common benefit work done in this case, the Court concludes that a reasonable adjustment is 0.5%. Accordingly, the Court will increase the benchmark percentage upward from 6% to 6.5% of $4,850,000,000, or $315,250,000. Primary Vioxx attorneys will still receive over 25% of the total settlement value in this matter, amounting to approximately $1,236,750,000. This should be adequate compensation for the primary attorneys, particularly in light of the benefits of economies of scale and for the relief of the burden of pretrial discovery and settlement negotiation.
C. Lodestar Cross-Check
To confirm that the determined percentage-fee value in this case is appropriate, the Court believes it is important to conduct a lodestar cross-check. In the cross-check, the Court multiplies the reasonable hours worked by reasonable billing rates to calculate a time-fee value for the common benefit work performed. Then, the Court divides the percentage-fee value by the time-fee value to determine a lodestar multiplier and to test whether the percentage fee value represents an unreasonable award or "windfall" over the reasonable value of the work performed. See, e.g., In re Diet Drugs, 553 F.Supp.2d at 485-86. This use of the lodestar as verification rather than as a method for determining a reasonable attorneys' fee award dates to the mid-1990s, when courts sought to address some disadvantages to the percentage *659 method, such as a lack of guidance on how to adjust percentage fees in light of the circumstances of a particular case. See Walker & Horwich, supra, at 1458-63 (tracing the evolution of the lodestar cross-check and its "rising use"). The application of the lodestar analysis as a cross-check is helpful in determining whether the benchmark percentage is reasonable given the circumstances of the case, and appropriate according to Fifth Circuit precedent. The lodestar cross-check is meant to be a rough analysis:
(It) need entail neither mathematical precision nor bean counting. For example, a court performing a lodestar cross-check need not scrutinize each time entry; reliance on representations by class counsel as to total hours may be sufficient. . . . Furthermore, the lodestar cross-check can be simplified by use of a blended hourly rate. . . .
Walker & Horwich, supra, at 1463-64 (citing In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 306 (3d Cir.2005)).[20]
The cross-check process begins with an analysis of the time logged and the appropriate hourly rate to be assigned. To assist in this process, the Court approved the retention of Philip Garrett, CPA, to receive, compile, and report the common benefit time and expense submissions of counsel. Mr. Garrett provided monthly reports of time and expenses submitted by the PLC pursuant to procedures set forth in Pretrial Order 6. The Court has reviewed these reports throughout the litigation.
With respect to the number of common benefit hours submitted, Mr. Garrett provided summaries in connection with the PLC's motion in January, 2009, and again in July, 2010. In the January, 2009 report he presented a figure of 503,185 hours of common benefit work reported by attorneys from 109 firms. Mr. Garrett in an affidavit explained the procedures he followed to vet and disallow inadequately detailed submissions, pursuant to which the submitters "voluntarily withdrew from inclusion in the collective lodestar analysis substantial submissions of hours of time having a significant lodestar value." Mr. Garrett later submitted an updated collective calculation for common benefit work through July 30, 2010. The updated submission accounts for approximately 562,943.55 hours of professional time submitted by 109 law firms as of July 30, 2010.[21] Those updated submissions were also subjected to the same vetting procedures. Thus, the PLC has submitted documentation of 562,943.55 hours, which has been *660 checked and approved by the Court-appointed CPA. The Court finds those hours to be reliable and supported in light of the procedures put in place by PTO 6 and implemented by Mr. Garrett.[22]
With respect to the appropriate hourly rate, Mr. Garrett utilized each individual submitter's actual reported billing rate. In connection with the January 2009 report, the average billing rate for all partner, associate, and other professional common benefit time was $431.51 per hour. In connection with the July 2010 updated report, the average billing rate for all partner, associate, and other professional common benefit time was $443.29 per hour. The Court recognizes that attorneys from across the country contributed common benefit work to the MDL, and that billing rates vary among legal markets. The Court has previously used a range of $300 to $400 per hour for members of a Plaintiffs' Steering Committee and $100 to $200 per hour for associates to "reasonably reflect the prevailing [billable time] rates in this jurisdiction." Murphy Oil, 472 F.Supp.2d at 868-69 (emphasis added). But in Murphy Oil, all of the attorneys were local to the Eastern District of Louisiana so it was appropriate to use a rate consistent with local standards. In Vioxx, on the other hand, the attorneys come from states across the country. Thus a more national rate is the appropriate pole star to guide the Court. Although the Court has not been provided with the individual attorney billing rates used by Mr. Garrett to calculate the lodestar, for the purposes of the lodestar cross-check the Court need not crunch the numbers for individual attorneys and other legal professionals from 109 law firms across the country, or to apply a single billing structure.[23] The Court finds that the hourly rate of $443.29 (the average of the billing rates for common benefit submitters) is an appropriate hourly rate from which to start the analysis in view of the fact that it is a combined rate and does not distinguish between work done by various level of attorneys including the work done by others. Further, this rate is in line with hourly rates used by other courts supervising other national MDLs. E.g., In re Guidant, 2008 WL 682174, at *15 (D.Minn. Mar. 7, 2008) (average attorney rate of $379.40 per hour and paralegal rate of $127.49 per hour).
Utilizing the reasonable amounts for the number of hours worked and the averaged billing rate, Mr. Garrett calculated several collective time-fee values for the common benefit services. Through January 2009, he multiplied each individual's hours, totaling 503,185 hours of common benefit work, by that individual's actual billing rate, averaging $431.51 per hour, to calculate a time-fee value for all common benefit work through January, 14, 2009, of $217,128,800.40.[24] Mr. Garrett updated his time-fee value calculation for additional hours submitted through July 30, 2010. *661 He multiplied each submitting individual's hours, totaling 562,943.55 hours of common benefit work, by that individual's actual billing rate, averaging $443.29 per hour, to generate a total time-fee value for all common benefit work through July 30, 2010, of $249,546,751.20. The Court has found that the submitted hours are reasonable and that the actual billing rates which average $443.29 are reasonable. Accordingly, the Court accepts Mr. Garrett's calculation of a time-fee value of $249,546,751.20 for all common benefit work performed through July 30, 2010.
The next step in the lodestar cross-check is to compare the time-fee value to the Court's adjusted percentage-fee value and determine whether a lodestar multiplier is warranted.[25] That is to say, the Court must verify its percentage calculation and determine whether the percentage fee should be increased or decreased in view of other factors. The use of a multiplier is not mandatory and depends on the circumstances of the case. Indeed, a multiplier may not be warranted if the time-fee value adequately compensates the attorneys for their services. See, e.g., Strong, 137 F.3d at 851 (affirming district court decision not to use multiplier to award additional fees). In the present case, however, the Court has already considered the Johnson factors and concluded that a 0.5% increase in the benchmark percentage is warranted. Therefore, it is appropriate to allow for an appropriate lodestar multiplier to the time-fee value in performing the lodestar cross-check.
The Court has concluded that 6.5% of the total settlement amount, or $315,250,000, is a reasonable common benefit fee award. To test this percentage-fee value by the lodestar method it is necessary to divide $315,250,000 by the time-fee value of the common benefit work, which is $249,546,751.20. This produces a lodestar multiplier of approximately 1.2633.[26] This lodestar multiplier is well within the range computed in other comparable MDL or mass tort cases. See, e.g., In re Diet Drugs, 553 F.Supp.2d at 485-87 (E.D.Pa.2008) (2.6 multiplier, and collecting cases with multipliers between 2.4 and 4.45). Other MDL courts have applied lower multipliers. In re Guidant, 2008 WL 682174, at *15 (D.Minn. Mar. 7, 2008) (1.19 multiplier); In re Orthopedic Bone Screw, 2000 WL 1622741, at *8-9 (applying reducing factor because requested fee exceeded available funds). Therefore, the Court is satisfied that the rough lodestar cross-check demonstrates that the 6.5% blended percentage fee is well within the reasonable range. Accordingly, the Court determines that the lodestar cross-check firmly supports an *662 award of 6.5% of the total settlement of $4.85 billion.
D. Fee Award
For the foregoing reasons, the Court awards a common benefit fee of $315,250,000, which is equivalent to 6.5% of $4,850,000,000.
This amount will be available for distribution among all attorneys who performed common benefit work in the MDL and associated state litigation. The Court will first allow the Allocation Committee designated in Pretrial Order 32 to arrive at a suggested distribution, pursuant to the Allocation Guidelines set forth in Pretrial Order 6D and consistent with the evidence produced during hearings conducted or to be conducted for the purpose of determining an appropriate distribution. If disputes arise, the Court will consider appointing a special master to evaluate the recommendation of the allocation committee and the evidence on which it based its recommendation, and to take additional evidence if necessary. The special master will submit a report of his or her findings to the Court for a final determination. The Court retains jurisdiction for purposes of supervising the allocation.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the PLC's Motion for Award of Plaintiffs' Common Benefit Counsel Fees and Reimbursement of Expenses (Rec. Doc. 17642) is GRANTED IN PART as set forth in the foregoing Order & Reasons.
NOTES
[1] On September 23, 2009, the Court ordered that $48.5 million, which represents 1% of the total settlement amount in this case, be set aside as the Common Benefit Expense Fund. See Pretrial Order No. 51 (Sept. 23, 2009). The Court also ordered that $40,049,748.16 in costs be reimbursed at that time. Id. Those requests for reimbursement of common benefit costs were vetted first by the Court-appointed CPA, then by a sub-committee of the Fee Allocation Committee, and finally by the entire Fee Allocation Committee. On December 17, 2009, the Court ordered that an additional $49,216.08 in costs be reimbursed. See Order, Rec. Doc. 30153 (Dec. 17, 2009). Finally, the Court established a procedure whereby future common expenses would be reviewed and reimbursed. See Pretrial Order No. 51 (Sept. 23, 2009).
[2] The allocation of the common benefit fee amongst the fee applicants, which is the responsibility of this Court pursuant to the Settlement Agreement, will not be addressed at this time. The Court will merely determine the appropriate total fee amount, leaving allocation for another day.
[3] For a more detailed factual background describing the events that took place before the inception of this multidistrict litigation, see In re Vioxx Prods. Liab. Litig., 401 F.Supp.2d 565 (E.D.La.2005) (resolving Daubert challenges to a number of expert witnesses).
[4] Some have suggested that the attorneys themselves should select the Plaintiffs' Steering Committee with the attorney with the largest number of plaintiff cases having the laboring oar. See Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal, 63 Vand. L. Rev. 107, 159-77 (2010). But the experience of the MDL courts suggest otherwise. See Carolyn A. Dubay, Federal Judicial Center, Trends and Problems in the Appointment and Compensation of Common Benefit Counsel in Complex Multi-District Litigation: An Empirical Study of Ten Mega MDLs (forthcoming) (July 2010 manuscript at 59). Having a large number of cases in the MDL often indicates skill at advertising, but does not guarantee the best lawyering or even the selection of those best suited to handle the matter in a cooperative endeavor which is crucial for MDL proceedings. The ability to work in a team setting tends to be more difficult for the plaintiff bar than for defense attorneys. But the efficient and successful resolution of an MDL is dependent on coordination and cooperation of lead counsel for all sides. There is room for both vigorous advocacy and professional cooperation. See, e.g., The Sedona Conference Cooperation Proclamation (2008), available at http:// www.thesedonaconference.org/content/tsc_cooperation_proclamation/proclamation.pdf. In an MDL setting where there can be a thousand plaintiffs' attorneys it not only takes a good lawyer to qualify for lead or liaison counsel but one who has the diplomatic skills to coordinate the efforts of a diverse group. Selecting lead and liaison counsel by a neutral party such as an MDL judge may not be the best method but as between it and the selection by other counsel it is the better way. Moreover, the selection of lead counsel by their fellow attorneys would involve intrigue and side agreements which would make MacBeth appear to be a juvenile manipulator. Frequently, recommendations by attorneys for positions on leadership committees are governed more on friendship, past commitments and future hopes than on current issues.
[5] The various consolidated state court proceedings also established similar management structures to coordinate the litigation.
[6] MDL-1657 Vioxx Products Liability Litigation, http://vioxx.laed.uscourts.gov/.
[7] See Plunkett v. Merck & Co., No. 05-4046 (E.D. La. Filed Aug. 23, 2005) (comprising both the first and second bellwether trials, as the first trial resulted in a hung jury); Barnett v. Merck & Co., No. 06-485 (E.D. La. Filed Jan. 31, 2006) (third bellwether trial); Smith v. Merck & Co., No. 05-4379 (E.D. La. Filed Sept. 29, 2005) (fourth bellwether trial); Mason v. Merck & Co., No. 06-0810 (E.D.La. Filed Feb. 16, 2006) (fifth bellwether trial); Dedrick v. Merck & Co., No. 05-2524 (E.D. La. Filed June 21, 2005) (sixth bellwether trial).
[8] The Court once again expresses its thanks to Judge Carol E. Higbee of the Superior Court of New Jersey, Judge Victoria Chaney of the Superior Court of Los Angeles County in California, and Judge Randy Wilson of the 157th Civil District Court of Harris County, Texas for their efforts in bringing this litigation to completion.
[9] For a more detailed factual background of the various mechanics of the Settlement Agreement, including the provisions for the mandatory resolution of governmental liens, see In re Vioxx Prods. Liab. Litig., 2008 WL 3285912 (E.D.La. Aug. 7, 2008) (denying motions to enjoin disbursement of interim settlement payments).
[10] See, e.g., Settlement Agreement § 9.2.4 (establishing that the Court shall appoint a Fee Allocation Committee); § 9.2.5 (establishing that the Court shall "provide appropriate notices governing the procedure by which [it] shall determine the common benefit attorneys' fees and reimbursement of common benefit expenses"); § 16.4.2 (establishing that the Court may modify any provision of the Agreement under certain limited circumstances if the Court determines that the provision "is prohibited or unenforceable to any extent or in any particular context but in some modified form would be enforceable").
[11] See e.g., Pretrial Order No. 32, Rec. Doc. 13007 (Nov. 20, 2007) (exercising the Court's "inherent authority over this multidistrict litigation" as well as its express authority under Paragraph 9.2.4 of the Settlement Agreement to appoint a Fee Allocation Committee; reserving the right to "issue subsequent Orders governing the procedure by which the Allocation Committee shall carry out its function"; and providing that members appointed to the committee may not be substituted by other attorneys "except with the prior approval of the Court").
[12] Some authorities have commented on the "persistent and confusing identification of common-fund recovery as an `exception' to the American rule on attorneys' fees," noting that in a common fund situation the funds are actually distributed "among those aligned with the plaintiff rather than extract[ed] . . . from the defeated adversary." See Restatement (Third) of Restitution § 30 Reporter's Note a (Tentative Draft No. 3, 1994) (quoting Thomas D. Rowe, Jr., The Legal Theory of Attorney Fee Shifting: A Critical Overview, 1982 Duke L.J. 651, 662 (1982)). Regardless of specific taxonomy, the common-fund doctrine, as well as the Court's inherent power to assess fees to compensate appointed managing attorneys, constitute departures from the traditional rule that each litigant bears his or her own costs.
[13] On the other hand, some commentators take the position that the common fund doctrine does not justify assessment of common benefit fees in consolidated mass tort MDLs. Silver & Miller, supra, at 120-30; Restatement (Third) of Restitution § 30 cmt. b (Tentative Draft No. 3, 1994) ("By comparison with class actions, court-imposed fees to appointed counsel in consolidated litigation frequently appear inconsistent with restitution principles, since litigants may have no choice but to accept and pay for certain legal services as directed by the court. The fact that such fees may not be authorized by this Section is probably irrelevant, however, since their predominant rationale is not unjust enrichment but administrative convenience.").
[14] The Fifth Circuit also found support in "the body of law concerning the inherent equitable power of a trial court to allow counsel fees and litigation expenses out of the proceeds of a fund that has been created . . . by successful litigation," which the Court discussed above. Id. at 1017.
[15] The Court takes this opportunity to discuss the initial fee assessments set by the Court in Pretrial Order 19, as well as criticism that the NPC did an end-run around those agreements and "used their control of settlement negotiations to make more money available for themselves." Silver & Miller, supra at 132. The PTO 19 fee assessment agreements were reasonable and appropriate to create a fund to compensate common benefit attorneys for the consolidated MDL discovery work that was contemplated at that early stage of the litigation. When circumstances changed as a result of the extensive discovery, numerous trials, and through negotiation and implementation of a global opt-in settlement, it became necessary to reevaluate the reasonable compensation for the common benefit attorneys who accomplished those tasks. The claimants and their attorneys acknowledged those changed circumstances when they accepted the terms of the Settlement Agreement which supplanted the PTO 19 assessments. Settlement Agreement § 9.2.1. Moreover, the Court's equitable and managerial authority and duty to award fair common benefit fees or to adjust contingent fees exists independent of contractual agreement, and the Court's authority to do justice by reducing attorneys' fees necessarily encompasses the corollary authority to increase fees where appropriate. See Guidant, 2008 WL 682174, at *11-12.
[16] This not to say that third parties have not commented upon and criticized the PLC's fee request. Professors Silver and Miller assert that "[the PLC] used their position to benefit themselves at the expense of those they were charged to represent. Conduct of this sort establishes a predicate for fee forfeiture, not for fee enhancement." 63 Vand. L.Rev. at 135. Professors Silver and Miller served "as paid consultants to a group of attorneys in the Vioxx MDL who have questioned or challenged aspects of the settlement, including the fee assessment." Id. at 107 n. 1.
[17] In Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir.2002), the Fifth Circuit held that "[s]tate law controls both the award of and the reasonableness of fees awarded where state law supplies the rule of decision." The Court will nevertheless utilize the Johnson framework in this case. This matter is before the court through MDL jurisdiction and the global settlement of these claims ensures that state law has supplied no rule of decision. Further, as previously noted in connection with its Order and Reasons capping attorneys' fees at 32%, this Court has the equitable and inherent authority in all federal courts to determine a fair common benefit fee as well as express authority under the Settlement Agreement. In re Vioxx, 650 F.Supp.2d at 558-62; In re Vioxx, 574 F.Supp.2d at 610-14.
[18] See William B. Rubenstein, On What a "Common Benefit Fee" Is, Is Not, and Should Be, 3 Class Action Att'y Fee Dig. 87, 89 (2009) ("As a judicially imposed Portion of a larger privately-negotiated contingent fee, the common benefit fee is logically, therefore, generally a lower fee than the class action fee award.") (emphasis in original).
[19] The Fifth Circuit advises that it does "not require the trial court's findings to be so excruciatingly explicit in this area of minutiae that decisions of fee awards consume more paper than did the cases from which they arose." In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 228-29 (5th Cir.2008) (quoting La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir.1995)). The Court shall attempt to comply with this guidance.
[20] A district court's scrutinizing of attorney time includes painstaking review of each time entry under the lodestar procedure. The experience level of the attorney and the type of work performed may reduce the hourly rate. For example, the district court may ask such questions as whether the attorney was conducting the deposition or only attending a deposition; whether he or she was traveling at the time or in the office, or how many years of experience the attorney possessed. The court also compares and cross-checks the entries of different attorneys to ensure that any duplication of effort is accounted for and no over-billing occurs. These are just some examples, by no means exhaustive, of the detailed and time-consuming tasks required of the district court if the traditional lodestar method is faithfully applied.
[21] The PLC also submitted a compilation of time reports disclosing that up to July 7, 2010, attorneys had submitted 448,195.95 hours. Thus, out of the 562,943.55 hours submitted through July 30, 2010, at least 79.6% of the hours submitted for the lodestar calculation were attorney hours, rather than hours worked by paralegals or others. The PLC also submitted individual breakdowns of each attorney's hours, without specifying whether the attorney is a partner or associate, or the attorney's hourly rate used in calculating the lodestar. The PLC did not submit the ratio of partner to associate hours.
[22] This finding is sufficient for the purposes of the rough lodestar cross-check. This finding does not preclude the Allocation Committee or the Court from disallowing any particular submissions of common benefit time when allocating the common benefit fee award.
[23] See In re Orthopedic Bone Screw, 2000 WL 1622741, at *8 n. 18 ("[T]he hourly rate to be used in computing counsel's lodestar is the rate that is normally charged by counsel of comparable standing, reputation, experience and ability in the community where counsel practices Presumptively, this is the attorney's `usual' billing rate.").
[24] Mr. Garrett also calculated a time-fee value using the same number of hours, but multiplying those hours by the highest billing rate of each category of submitter, such as partner, associate, or paralegal. The highest billing rate time-fee value was $321,897,534.95, which reflects an average billing rate of $639.72 per hour.
[25] The Supreme Court recently addressed lodestar and lodestar multiplier analysis in the context of a civil rights fee-shifting statute. Perdue v. Kenny A. ex rel. Winn, ___ U.S. ___, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). In Perdue, the Supreme Court held that the lodestar analysis pursuant to 42 U.S.C. § 1988 generally takes into account any factors that might justify a multiplier of the lodestar amount. Id. at 1673-75. Therefore, absent "rare" and "exceptional" circumstances, the lodestar amount is presumptively reasonable. Id. The Supreme Court also held that under those facts, the district court's 75% multiplier of the lodestar amount was essentially arbitrary. Id. at 1675-76. The Supreme Court's holding was informed by the Supreme Court's lodestar jurisprudence and the statutory purpose of § 1988. Id. at 1676-77. Accordingly, Perdue has little bearing on the use of the lodestar as a cross-check of a common benefit fee awarded as a percentage of a common fund.
[26] Mr. Garrett calculated a lodestar multiplier by dividing the PSC's requested common benefit fee of 7.5% of $4.85 billion, or $363,750,000, by the time-fee value, or $249,546,751.20, and calculated that the 7.5% fee would represent a multiplier of 1.4576 times the time-fee value. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/726339/ | 95 F.3d 1157
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Stella KODMAN, Individually and as Guardian Ad Litem forMatthew Dean Lane; Matthew Dean Lane, a minorPlaintiffs-Appellants,v.The COUNTY OF MERCED; Merced County Child ProtectiveServices; Bernard Martinez; Shirley Corbin, individuallyand as agents and employees of Merced County ChildProtective Services; John Cullen; Melody Archer; HubWalsh, individually and as the managing agents of MercedCounty Child Protective Services, Defendants-Appellees.
No. 94-16852, 94-17156.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 6, 1995.Decided Aug. 21, 1996.
Before: BROWNING, CANBY and HALL, Circuit Judges.
1
MEMORANDUM*
2
Appellant Stella Kodman, individually and as guardian ad litem for her minor son Matthew Lane, brought this 42 U.S.C. § 1983 action against, inter alia, the County of Merced, Merced County Protective Services ("CPS"), and social worker Shirley Corbin in her individual capacity (collectively "Defendants"). Kodman alleged civil rights violations arising from CPS's temporary removal of Matthew from her custody after Matthew and his grandmother made allegations of sexual abuse against Kodman's former husband. Kodman appeals from the district court's summary judgment in favor of Defendants, and Defendants cross-appeal the district court's denial of their motion for attorney's fees. This Court has jurisdiction under 28 U.S.C. § 1291. We affirm the summary judgment in favor of Defendants and the district court's denial of attorney's fees.
I.
3
We do not set forth all of the facts relevant to Kodman's claims because the parties are familiar with them. Kodman argues that the district court erred in finding that Corbin was entitled to qualified immunity. We review de novo the district court's grant of qualified immunity. Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir.1995).
4
Corbin is entitled to qualified immunity from suits under § 1983 if her official conduct " 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir.1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "The contours of the right must be sufficiently clear that a reasonable official would understand that what [s]he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). We therefore consider whether a reasonable social worker could have believed that taking Matthew into temporary protective custody was lawful in light of clearly established law and the information that Corbin possessed when she made the decision. Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.1989).
5
" '[T]he parental liberty interest in keeping the family unit intact is not a clearly established right in the context of reasonable suspicion that parents may be abusing children.' " Id. (quoting Myers v. Morris, 810 F.2d 1437, 1463 (8th Cir.), cert. denied, 484 U.S. 828 (1987)). At the time of Matthew's removal, it was well established that a state agency may remove a child from a parent's custody without a prior hearing when the child is subject to immediate or apparent danger or harm. See Caldwell, 928 F.2d at 333. There were no firmly established constitutional standards governing the specific procedures that social workers must undertake before effectuating the temporary or emergency removal of a child in the context of a child abuse investigation. Baker, 887 F.2d at 187.
6
In Baker, this Court granted qualified immunity to a social worker who effectuated an emergency removal of a child when a non-offending parent was available to care for the child. At the time of the emergency removal, the alleged offender was unlikely to have contact with the child because he had been arrested and incarcerated. Id. at 184-85. We held that the social workers were entitled to qualified immunity because, on the basis of the circumstances then existing, they believed that the non-offending parent may have been unwilling or unable to protect the child if the offender were released from jail.
7
We have implied that social workers' interference with the parent-child relationship in the absence of any perceived emergency might violate parents' constitutionally protected interests. See Caldwell, 928 F.2d at 333. However, in light of some of the similarities between this case and Baker, we conclude that Corbin reasonably could have believed that placing Matthew in temporary foster care rather than releasing him to Kodman's custody did not violate clearly established constitutional rights. The information that Corbin possessed at the time of the removal reasonably allowed her to conclude that Matthew faced imminent harm. In addition to his grandmother's allegations, Matthew gave a detailed description of the alleged abuse in a separate interview with Corbin and a police officer. Moore also had informed Corbin that when she tried to discuss Matthew's allegations with Kodman, Kodman did not pay attention and did not believe her. Moore's assertions and the fact that Kodman regularly permitted Matthew to visit her ex-husband, Rod Kodman, provided a reasonable basis for Corbin's conclusion that Kodman would not protect Matthew from Rod and that Matthew was in imminent danger. Even if Matthew was unlikely to have contact with Rod within the next few days, Baker could have supported Corbin's belief that an emergency removal did not violate Kodman's established constitutional rights.
8
Corbin's failure to contact Kodman before placing Matthew in CPS custody also did not violate clearly established constitutional rights. Although there is some dispute regarding whether and when Corbin attempted to reach Kodman by telephone, it is undisputed that Kodman found out that Matthew was in CPS custody within a few hours of the emergency removal, when she called CPS and spoke with Corbin. In a situation necessitating the emergency removal of a child, post-deprivation notification is consistent with due process. See Donald v. Polk County, 836 F.2d 376, 381 (7th Cir.1988). Kodman has not shown that the delay in notifying her that Matthew was in CPS custody was so excessive that it violated due process. Id. At the least, there was no clearly established law that would lead a reasonable officer to believe that due process was being violated.
9
Corbin's failure to order a physical examination before the removal did not violate any established constitutional rule or statute. Corbin also was not obligated to believe that the abuse allegations were false just because Rod's attorney phone CPS to warn the agency of a potential charge. She reasonably could have believed that the phone call was an attempt to preempt a sexual abuse allegation that was true.
10
Kodman also contends that the district court improperly drew inferences adverse to her in considering the summary judgment motion. This claim is without merit. After a district court makes all inferences arising from the facts in the non-movant's favor, if there is no genuine issue of material fact the court determines whether the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the district court resolved all factual inferences in Kodman's favor, it was not obliged to conclude that Corbin's actions were unreasonable. The district court was required to make a determination about the reasonableness of Corbin's conduct in light of existing constitutional standards.
II.
11
Kodman argues that the district court erred in granting summary judgment in favor of the County because the County's de facto policy regarding the emergency removal of a child from his parent's custody is unconstitutional. We conclude that the district court properly granted summary judgment in favor of the County.
12
The County is not liable for Corbin's actions under § 1983 unless her allegedly unconstitutional acts were undertaken pursuant to an official policy or custom, Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978), and the policy was the "moving force" behind the constitutional violation. City of Canton v. Harris, 489 U.S. 378, 389 (1989). Although the County's actual practices, rather than its express policy, may subject it to § 1983 liability, Monell, 436 U.S. at 690-91, Kodman did not offer evidence, other than her own allegations, that the County had an unconstitutional de facto policy of removing a child from the custody of a parent solely on the basis of the child's story.1
13
We also find no merit in Kodman's argument that CPS had de facto unconstitutional policies regarding investigations and proceedings following an emergency removal. Post-removal proceedings involve a great deal of prosecutorial discretion. Kathleen Septien, the caseworker who took the case over from Corbin, moved to dismiss the dependency petition because she could not substantiate the allegations. This event suggests that the County does not have a policy that causes social workers to maintain proceedings not supported by evidence. Because Kodman does not present any other significant evidence of de facto unconstitutional policies regarding post-removal proceedings, we conclude that the district court did not err in granting summary judgment on this basis.
III.
14
Kodman argues that the district court erred in granting summary judgment in favor of the County by impermissibly inferring that Corbin was adequately trained and supervised. We conclude that the district court properly granted summary judgment on Kodman's inadequate training and supervision claims.
15
A municipality's failure adequately to train an employee can be considered an unconstitutional "policy" for purposes of § 1983 liability. City of Canton, 489 U.S. at 387. If a facially constitutional policy is unconstitutionally applied by an employee, the municipality "is liable if the employee has not been adequately trained and the constitutional wrong has been caused by that failure to train." Id. To be actionable under § 1983, the failure to train also must amount to a "deliberate indifference" to the rights of others. Id. at 388-89.
16
Kodman did not identify any particular respect in which Corbin's training was deficient. She simply asserted that the fact that Corbin received many hours of training does not mean that she was trained to avoid the invasion of constitutional rights, and that none of the CPS staff asserted that their training included methods for doing the job constitutionally. Kodman did not create a genuine issue of fact regarding whether the need for more or different training of CPS social workers was so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that County policymakers could reasonably be said to have been deliberately indifferent to the need. See id. at 390. We therefore conclude that the district court did not draw impermissible inferences or err in granting summary judgment in favor of the County on Kodman's training and supervision claims.
IV.
17
Defendants cross-appeal the district court's denial of their request for attorney's fees under 42 U.S.C. § 1988. We review the district court's denial of attorney's fees for an abuse of discretion. Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994).
18
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978), limits the availability of attorney's fees to prevailing defendants in civil rights actions. For a defendant to receive attorney's fees in a § 1983 action, the plaintiff's action must be meritless in the sense that it is "groundless or without foundation." Hughes v. Rowe, 449 U.S. 5, 14 (1980). We therefore award defendants in civil rights cases attorney's fees only in exceptional circumstances. Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 202 (9th Cir.1988), cert. denied, 490 U.S. 1081 (1989). We decline Defendants' invitation to reevaluate this Court's strict interpretation of Christiansburg, a matter which would require an en banc hearing in any event.
19
The district court found that Rod Kodman's claims, although immediately dismissed, did not merit an award of attorney's fees because he was proceeding pro se. Because pro se plaintiffs cannot be expected to recognize the legal merit of claims as easily as plaintiffs represented by counsel, Miller v. Los Angeles County Board of Education, 827 F.2d 617, 620 (9th Cir.1987), "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims." Hughes, 449 U.S. at 15. In light of his relationship with Matthew and his experience with CPS, it was reasonable for Rod Kodman to believe that his civil rights had been violated. The district court did not abuse its discretion in denying attorney's fees to Defendants for Rod Kodman's claims.
20
The district court also found that Stella Kodman's claims were not patently frivolous, unreasonable, or without foundation. As the district court noted, her opposition to summary judgment set forth some facts, law, and evidence to support her claims. We conclude that the district court did not abuse its discretion by refusing to award Defendants attorney's fees for their defense against Kodman's claims.
21
The district court also denied Defendants' request for attorney's fees under California Civil Procedure Code § 1038. The court found that because the action was not "wholly frivolous," the claims were not brought in bad faith or without reasonable cause. This determination was not an abuse of discretion.
V.
22
We affirm the district court's grant of summary judgment in favor of Corbin on the basis of qualified immunity because, faced with the totality of the circumstances and our decision in Baker, a reasonable social worker could have believed that she was not violating clearly established constitutional rights. We also affirm the district court's grant of summary judgment in favor of the County because Kodman did not introduce evidence creating a genuine issue of material fact regarding any unconstitutional de facto policy of the County or inadequate training and supervision of social workers. Finally, we affirm the district court's denial of Defendants' attorney's fees.
23
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
1
The only specific evidence Kodman offered in her motion opposing summary judgment was the CPS sexual abuse report and affidavit of an accused parent in another case. This other case, however, also involved an adult calling CPS to report behavior suggesting sexual abuse | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2474022/ | 777 F.Supp.2d 123 (2011)
Salome WILSON, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 09-2258(JEB).
United States District Court, District of Columbia.
April 14, 2011.
*124 Angela T'nia Green, Washington, DC, for Plaintiff.
Richard Allan Latterell, Office of Attorney General, Washington, DC, for Defendant.
MEMORANDUM OPINION AND ORDER
JAMES E. BOASBERG, District Judge.
Plaintiff Salome Wilson claims that she is entitled to reasonable attorney's fees as a prevailing party in an administrative hearing under the Individuals With Disabilities Education Act. 20 U.S.C. §§ 1400-1491 (2006). Plaintiff, as parent and next friend of Y.W., filed an IDEA claim in 2006 against the District of Columbia Public Schools system seeking appropriate school placement for Y.W., and she prevailed on her claim in a subsequent hearing. Plaintiff alleges that her attorney then filed an invoice for attorney's fees with DCPS in December 2006, but received no response. As a result, she filed this action seeking to recover those fees. Plaintiff has now filed a Motion for Summary Judgment on the *125 grounds that there are no material facts in dispute and that she is entitled to a judgment on the merits. The Court has reviewed this Motion, Defendant's Opposition, and Plaintiff's Reply.
I. Background
On August 28, 2006, Plaintiff, as parent and next friend of Y.W., filed a due process complaint against DCPS alleging that: (1) DCPS had denied Y.W. a free and appropriate public education under IDEA; and (2) a different school requested by Plaintiff could provide the necessary educational benefits. Compl. at ¶ 8. On November 16, 2006, DCPS held a hearing to adjudicate Plaintiff's due process claim before a Hearing Officer. Id. Twelve days later, the Hearing Officer ruled in Plaintiff's favor on both counts. Compl. at ¶ 9-10. The Hearing Officer ordered DCPS to place Y.W. in the school requested by Plaintiff. Compl. at ¶ 11. None of this is disputed.
Plaintiff was represented by attorney Anthony R. Davenport at the due process hearing. Compl. at ¶ 13. She alleges that Davenport submitted an invoice for $6,141.66 in attorney's fees to DCPS, but did not receive any response from DCPS. Compl. at ¶ 16-17; see also Plaintiff's Opposition to Defendant's Motion to Dismiss, Att. B. Defendant, however, contends that it has no record that Davenport ever submitted an invoice for this matter. Opp. at 6. Defendant, therefore, disputes both that Plaintiff has sought reasonable attorney's fees through the administrative process established by DCPS and that the fees themselves are reasonable. Id. at 6, 10. As Defendant does not contest that Plaintiff, as a prevailing party, is entitled to reasonable attorney's fees, the only issues for this Court are the process for the payment request and the total amount owing.
II. Legal Standard
Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." FED.R.CIV.P. 56(c)(1)(A). "A fact is `material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are `irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.Cir.1987). "Until a movant has met its burden, the opponent of a summary judgment motion is under no obligation to present any evidence." Gray v. Greyhound Lines, East, 545 F.2d 169, 174 (D.C.Cir.1976). When a motion for summary judgment is under consideration, "the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C.Cir.2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 *126 (D.C.Cir.1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). They are required to provide evidence that would permit a reasonable jury to find in their favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the nonmovants' evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505; see Scott, 550 U.S. at 380, 127 S.Ct. 1769 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is `no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
III. Analysis
Plaintiff's claim arises from Defendant's admitted failure to pay attorney's fees following an administrative hearing. As a prevailing party in an administrative hearing, Plaintiff may be entitled to an award of reasonable attorney fees. 20 U.S.C. § 1415(i)(3)(B); see Moore v. District of Columbia, 907 F.2d 165, 166 (D.C.Cir.1990) (en banc) (IDEA authorizes parent who prevails in administrative hearing to recover attorney's fees). In order to recover attorney's fees, Plaintiff must demonstrate both that she is a "prevailing party" and that the attorney's fees requested are "reasonable." 20 U.S.C. § 1415(i)(3)(B). Defendant concedes that Plaintiff is a prevailing party under IDEA. Opp. at 8. Defendant, however, argues that: (1) Plaintiff has failed to exhaust her administrative remedies; and (2) Plaintiff's attorney's fees are not reasonable.
A. Exhaustion
Plaintiff claims that by filing an invoice for attorney's fees she has exhausted her administrative remedies. Reply at 1. Defendant counters that it has no record of Plaintiff's counsel's invoice, and that Plaintiff has not exhausted her administrative remedies. Opp. at 6-7. IDEA is silent on whether a Plaintiff must exhaust her administrative remedies prior to seeking fees in district court, but courts have found that judicial efficiency is best served by permitting the District to process the attorney claims first. See, e.g. Goldring v. District of Columbia, Civ. No. 02-1761, *3-4 (D.D.C. Sept. 26, 2003); Smith v. District of Columbia, Civ. No. 02-373, *8-9 (D.D.C. Sept. 20, 2002).
The Court agrees in theory that judicial economy favors exhaustion, but the parties have failed to address this issue with sufficient specificity for the Court to rule. In other words, Defendant never explains what administrative steps Plaintiff is required to take or why her inquiries regarding payment are not sufficient. Without more, the Court cannot accept Defendant's exhaustion rationale or determine that a stay is appropriate in this case.
B. Reasonableness of Attorney's Fees
Even absent exhaustion, Plaintiff still has another significant hurdle to overcome. As a matter of law and in order to succeed on summary judgment, Plaintiff must demonstrate with record support that the attorney's fees requested in this case are *127 reasonable. FED.R.CIV.P. 56(c)(1)(A); Taxpayers, 819 F.2d at 297. Here, Plaintiff claims that she sought reasonable attorney's fees, but there is no actual evidence that the requested fees are, in fact, reasonable. Plaintiff fails to submit any record support for two material facts: (1) that the hourly rate charged is reasonable; and (2) that the number of hours worked is reasonable.
1. Hourly Rate
The rate charged in this case is obviously a material fact because it determines whether the attorney's fee request is reasonable and thus affects the outcome under the governing law. See Holcomb, 433 F.3d at 895. If there is a genuine issue over the rate charged, Plaintiff's Motion for Summary Judgment must fail. Id.
Here, Plaintiff claims that the $250.00 per-hour rate charged by counsel for this matter is a reasonable rate. In support of her claim, Plaintiff states in her Motion that Davenport has "approximately 20 years of legal experience." Motion at 4. Plaintiff adds that Defendant has reimbursed Davenport for similar cases at the same rate in the past. Id. at 5. Plaintiff, however, does not point to any record evidence e.g., an affidavit from Davenport to support either of these assertions. Mere argument is not enough to succeed on summary judgment. FED.R.CIV.P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record . . .").
Plaintiff claims only that under the U.S. Attorney's Laffey Matrix,[1] $405.00 per-hour is a reasonable rate for legal services provided by counsel with 20 years of experience. Plaintiff argues that because Davenport's rate is well below the $405.00 per-hour allowed by the Laffey Matrix, it must be reasonable. Motion at 4. But Plaintiff fails to recognize that the Laffey Matrix is not generally applicable to IDEA cases because they are not usually complex. See Agapito v. District of Columbia, 525 F.Supp.2d 150, 152 (D.D.C. 2007) (rejecting application of Laffey Matrix rates in IDEIA (the precursor statute to IDEA) cases). Plaintiff has not demonstrated why Laffey Matrix rates should be applicable in this case. Because Plaintiff's claim that the rate for attorney's fees is reasonable is not supported by record evidence, the Court finds that there is a material fact in dispute as to the reasonableness of the rate charged. The Court must therefore deny Plaintiff's Motion for Summary Judgment.
2. Hours Worked
Even if there were not a genuine issue as to the rate charged in this case, Plaintiff's Motion must fail because there is also a dispute over the hours worked. The number of hours claimed in this case is also a material fact because it determines, when multiplied by the hourly rate, whether the attorney's fee request is reasonable and therefore affects the outcome under the governing law. See Holcomb, 433 F.3d at 895.
Plaintiff argues that the number of hours worked is reasonable, but again fails to point to any record evidence to support her assertion. Plaintiff claims that the itemized invoice allegedly submitted by Davenport reflects "ordinary and necessary legal services" for Plaintiff's due process claim. See Motion at 4. Defendant, however, disputes many of these charges. See Opp., Ex. 1. In her Reply, Plaintiff again claims that "all charges included in *128 the invoice submitted by Plaintiff were necessary to the underlying due process complaint." Reply at 2. Plaintiff attaches an affidavit from Davenport attesting to the fact that Davenport did not have support staff for ministerial tasks while working on Plaintiff's due process claim. Such evidence, however, is insufficient to support Plaintiff's broader claim that "all charges" were "necessary." Indeed, even Davenport's affidavit fails to so state.
Construing the evidence in the light most favorable to Defendant, therefore, the Court finds that there is a material fact in dispute as to the reasonableness of the hours worked as well as the hourly rate.
IV. Conclusion
Because there are genuine issues as to two material facts, the Court ORDERS that:
1. Plaintiff's Motion for Summary Judgment is DENIED;
2. A status hearing in this action shall be set for April 27, 2011, at 10:30 a.m. in Courtroom 19.
NOTES
[1] See Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), aff'd in part, rev'd in part on other grounds, 746 F.2d 4 (D.C.Cir. 1984), modified by Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C.Cir.1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/388771/ | 644 F.2d 1008
UNITED STATES of America, Appellee,v.Tyrone Rogers YOUNG, Appellant.
No. 79-6118.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 6, 1981.Decided March 27, 1981.
William T. Clarke, Greenville, S. C., for appellant.
Kevin J. Harrington, Third Year Law Student (Justin W. Williams, U. S. Atty., Karen P. Tandy, Asst. U. S. Atty., Alexandria, Va., on brief), for appellee.
Before WINTER, BUTZNER and WIDENER, Circuit Judges.
BUTZNER, Circuit Judge:
Tyrone Rogers Young appeals the district court's denial of his motion for relief under 28 U.S.C. § 2255 to vacate his conviction for robbery, use of a firearm, and kidnapping. Because Young's claim that he was denied a fair trial by reason of an attorney's alleged conflict of interest cannot be conclusively decided on the files and records of the case, we remand for an evidentiary hearing as prescribed by § 2255.1
* After Young and his co-defendant, Wayne Hudson, were indicted, Young retained Thomas R. Dyson to represent him. Hudson retained John Shorter, a District of Columbia attorney, who asked Dyson, as an accommodation, to be associated as local counsel to satisfy a rule of the district court. Dyson appeared for both Young and Hudson at a pretrial suppression hearing. Young later terminated his employment of Dyson and retained JeRoyd X. Greene.
A week before the trial, Dyson, as Hudson's local counsel, moved for a continuance because Shorter's participation in a Washington trial would preclude his appearance on the day set for the Young-Hudson trial. Hudson, who was present, expressed a preference for Shorter, whom he had retained. The minutes of this motion do not appear in the record, but the government agrees that the court (Lewis, J.) denied the motion on the ground that Dyson could represent Hudson.
1
At the beginning of the trial (Bryan, J., presiding), Greene appeared as counsel for Young; Dyson appeared in Shorter's absence for Hudson. Greene moved for a severance on the ground that Young impermissibly would be subject to cross-examination by his former attorney, Dyson. The transcript discloses the following colloquy:
2
MR. GREENE: ... The problem that we have is that since this trial is a joint trial of both Defendants, my client will more than likely take the stand. If he takes the stand and if there is an attempt to show responsibility, assuming that that problem comes up, to the co-Defendant, then Mr. Dyson, representing the co-Defendant, would have a responsibility to cross examine him.
3
However, since he was once retained by Mr. Young, then there is a problem of him being able to cross examine a former client and, of course, my client would not waive the lawyer-client privilege which he entered into with Mr. Dyson when he originally represented him.
4
THE COURT: You really anticipate this becoming a real problem, other than a theoretical one?
5
MR. GREENE: Yes, sir, I do. I present that to the Court.
6
(THE PROSECUTOR): Your Honor, I would point out to the Court that the change in counsel has not changed the situation at all in that Mr. Dyson was always local counsel for Mr. Hudson.
7
THE COURT: What is your motion?
8
MR. GREENE: My motion would be for a severance at this time.
9
THE COURT: That motion will be denied.
10
At the conclusion of the government's case, Greene moved for a mistrial:
11
MR. GREENE: ... The other motion we have again is a motion for mistrial at this time for the prejudicial joinder of this case in terms of both defendants because
12
THE COURT: Motion will be denied on that.
13
After a suppression hearing conducted out of the presence of the jury, Greene again adverted to Dyson's former representation of Young:
14
MR. GREENE: Before the jury comes in, your Honor, I will indicate that I am instructing my client of the prejudicial effects that may be attendant to him assuming the Court doesn't sever them in terms of his taking the stand and that his decision to ask for this jury trial
15
THE COURT: Wait a minute....
16
MR. GREENE: His decision to ask for this jury trial contemplates his desire to and right to testify in his own behalf and that his testimony and his decision to testify is based upon his constitutional right which we feel this Court has at least limited or fettered by the presence of his previously retained counsel, who has every right to cross-examine him on any fact which he brings up, because of the fact that we have co-defendants on trial.
17
And if your Honor, the Court, insists on maintaining Mr. Dyson as counsel of record for Mr. Young I mean Mr. Hudson, or the Court refuses again my motion to sever, then I will instruct my client that he can take the witness stand but with the full understanding that he not waive his attorney-client privilege with Mr. Dyson and with the understanding that Mr. Dyson would have every reason not to follow that attorney-client privilege based upon the fact that he has now a higher interest since he has not, since his being retained has been severed, in terms of Mr. Hudson's position, and I believe that the evidence would establish that there will be a conflict in terms of their positions in this matter and the case is now ripe for decision on the question of whether the Court allows Mr. Young to take the stand or not, put it that way, would advise Mr. Young that if he fails to take the stand that he waives it in lieu of the fact that the Court will not limit Mr. Dyson from cross-examining him and will not instruct Mr. Dyson not to cross-examine him.
18
THE COURT: This is the same situation now as it was when these two defendants first employed their counsel, isn't it?
19
MR. GREENE: Yes, sir, but the Court hasTHE COURT: I don't think they are in any position to either force a co-counsel out of the case by changing counsel in mid-stream or limit his cross-examination, so if he elects not to take the stand on that ground then that is entirely up to him.
20
MR. GREENE: He has no control, your Honor, over being My position is
21
THE COURT: He had control over who he wanted as counsel.
22
MR. GREENE: Well, when he had no control over his employment, Mr. Dyson's employment by Mr. Hudson. As a matter of fact, he only
23
THE COURT: They both went to some other counsel first, didn't they?
24
MR. GREENE: No, sir. Mr. Young hired Mr. Dyson first. Mr. Hudson hired Mr. John Shorter of Washington and as a convenience to Mr. Shorter Mr. Dyson undertook to be local counsel.
Now the problem, of course, is
25
THE COURT: Had the situation stayed all the way through we would be exactly where we are today.
26
Dyson then recounted his efforts to get a continuance because Shorter would be unavailable, and the following colloquy occurred:
27
THE COURT: But (the motion for a continuance was) not on any conflict of interest basis?
28
MR. DYSON: No.
29
THE COURT: I am not limiting anybody's right of cross-examination or any such thing as that. This comes up today for the first time, doesn't it?
30
MR. DYSON: That is true, your Honor.
31
THE COURT: All right.
32
MR. DYSON: And Mr. Hudson is on the record as saying he wanted Mr. Shorter and he didn't want me, and in the face of that Judge Lewis appointed me to defend Mr. Hudson.
33
THE COURT: All right.
34
MR. DYSON: Whether or not there is a conflict I don't think anybody in the world can tell until it happens.
35
THE COURT: Well, I am not going to have the Court put in the position of having you say you are not going to put him on the stand because of some possible conflict.
36
If you are in that position or if your client is, Mr. Greene, he put himself in that position, and I am not going to If he wants to take the stand, fine; if he doesn't, fine. He has a perfect right not to. If he doesn't I will tell the jury he has a perfect right not to.
37
But if he finds himself with an attorney on the other side that might ask him some questions that he doesn't want to answer because of any privilege that he is able to assert, or otherwise, that is of his own doing, in my view.
38
At the conclusion of the defendants' case, Greene advised the court that Young would have testified had Dyson not been present. Young then rested without testifying.
II
39
The government urges affirmance of the dismissal of the § 2255 motion because Young did not comply with the district court's order that he submit "an affidavit indicating specific information that was in the possession of Dyson at trial that could have been introduced on cross-examination and incriminated petitioner had he chosen to take the stand." Young, at that time acting pro se, responded with a memorandum in which he claimed that this information was protected by his attorney-client privilege.
40
We find no ground for affirmance in this incident. In Holloway v. Arkansas, 435 U.S. 475, 485-87, 98 S.Ct. 1173, 1179-80, 55 L.Ed.2d 426 (1978), the Court cautioned that when defense counsel suggests a conflict of interest, he should not be pressed to divulge confidential information received from his client. We believe that this admonition is applicable when a defendant presents the same issue. To require him to reveal what he told his lawyer would destroy the attorney-client privilege that conflict of interest rules are designed to protect.III
41
Although successive representation of co-defendants differs chronologically from multiple representation of co-defendants by the same lawyer, the possibility of a conflict of interest is not dispelled by the termination of the former lawyer's services. The lawyer may have received confidential information from his former client that is detrimental to that client but favorable to the lawyer's present client. In this event, a conflict of interest arises that is not substantially different from that which may occur in instances of multiple representation. Therefore, the Supreme Court's most recent opinion on the subject of conflict of interest in a multiple representation case is instructive. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Court, after reviewing its earlier opinions dealing with this issue, explained and clarified the principles that govern its resolution.2 Applying these principles to the situation of successive representation, we have reached the following conclusions.
42
Successive representation is permissible unless it gives rise to a conflict of interest. 446 U.S. at 348, 100 S.Ct. at 1718. When a defendant raises an objection about successive representation, the trial court should afford him an opportunity to show that the potential conflict infringes his right to a fair trial. 446 U.S. at 348, 100 S.Ct. at 1718.3 Although the mere possibility of a conflict of interest is insufficient to set aside a conviction, when the defendant shows that an actual conflict of interest resulting from the successive representation affected his right to a fair trial, he need not demonstrate prejudice. 446 U.S. at 349-50, 100 S.Ct. at 1718-19.
43
In the case of multiple representation, the Court explained that a conflict of interest infringes a defendant's sixth amendment right to effective counsel. 446 U.S. 348-50, 100 S.Ct. at 1718-19. A conflict of interest arising out of successive representation would not necessarily infringe a defendant's sixth amendment rights with respect to his present counsel. Nevertheless, it could impermissibly impair a defendant's right to testify free of cross-examination by his former attorney to whom he had confided information that is detrimental to him but beneficial to the lawyer's present client. In this event, the defendant's right to a fair trial, which the due process clause secures, would be compromised.
IV
44
Young brought the potential conflict of interest to the attention of the district court by a motion for a severance. Without conducting an evidentiary hearing to explore the alleged conflict of interest, the court denied the motion and ruled that it would not limit Young's cross-examination by his former attorney. In making these rulings, it adverted to the fact that all defense counsel in the case were privately retained.
45
This fact, however, did not provide a legally sufficient basis for omitting an evidentiary hearing. In Cuyler the Court put to rest distinctions between appointed and retained counsel with respect to conflicts of interest. The Court referred to its earlier decisions establishing that "court procedures that restrict a lawyer's tactical decision to put the defendant on the stand unconstitutionally abridge the right to counsel." 446 U.S. at 344, 100 S.Ct. at 1716. It then held: "Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers." 446 U.S. at 344-45, 100 S.Ct. at 1716-17.
46
The government urges that Young's former attorney, Dyson, disclosed to the court an adequate factual basis for finding that no conflict of interest existed.
47
We cannot accept this argument. The transcript, which we quoted in Part I, discloses that Dyson, acting on behalf of Hudson, not Young, moved for a continuance on the sole ground that Hudson's principal lawyer could not be present. He did not then mention any conflict of interest. Later, however, when the court was considering Young's motion for a severance, Dyson stated: "Whether or not there is a conflict, I don't think anybody in the world can tell until it happens." This statement does not support the government's contention. It does not establish a factual basis for holding that no conflict of interest existed. On the contrary, it demonstrates that Dyson was aware that an actual conflict might arise.
48
For his part, Young argues that because he made timely objection at trial and the court denied his motion for a severance without a hearing, we should presume there was an actual conflict of interest. Young relies on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), another multiple representation case. There the Court held that if an attorney representing co-defendants alerts the court to a probable conflict of interest, the defendants are deprived of effective assistance of counsel if the judge fails either to appoint separate counsel or to take adequate steps to ascertain whether the risk is too remote to warrant such separate appointment. 435 U.S. at 484, 98 S.Ct. at 1178. See also Cuyler, 446 U.S. at 348, 100 S.Ct. 1717.
49
Because of the difference between multiple and successive representation, we decline to presume that Young was denied a fair trial. When defense counsel alerts the court to a possibility of conflict in a multiple representation case, he obviously claims first-hand knowledge of the conflict and of his inability to afford effective representation. The record in this case, however, illustrates why the presumption applied in cases of multiple representation is not necessarily appropriate for instances of successive representation. Young's former counsel was aware that a conflict might arise, but because he could not foretell Young's testimony, he was unable to say with any certainty whether there would be a conflict. Young's second counsel suspected that a conflict would arise, but, lacking the information that counsel in multiple representation cases have, he was unable to represent on the basis of his own knowledge why there would be a conflict. At the most, he was able to suggest only that Young would be subject to cross-examination by his former counsel. This examination, depending on its content, might, or might not, disclose a conflict of interest. In the absence of a fuller explanation, his anticipation of the conflict was speculative. We therefore conclude that the factual predicate for the presumption that the court applied in Holloway is lacking. The statements of both counsel, however, were sufficient to warrant further exploration of the potential conflict. See Cuyler, 446 U.S. at 346, 100 S.Ct. at 1717.
V
50
Section 2255 of Title 28 U.S.C. provides that unless the record conclusively shows that the prisoner is entitled to no relief, the district court should conduct an evidentiary hearing and state its findings and conclusions. The critical question in this case is whether an actual conflict of interest adversely affected the fairness of Young's trial. The record does not disclose the necessary facts to answer this question.
51
Accordingly, we remand the case for an evidentiary hearing. Young should be required to state what his testimony would have been had he taken the stand at the criminal trial. With this information at hand, Dyson should be questioned to determine whether, in his role as Young's former attorney, he received from Young information detrimental to Young's defense that he could have used on cross-examination to buttress Hudson's defense. An inquiry of this nature accords great weight to a lawyer's perception of a conflict, but as Cuyler reiterates, "courts necessarily rely in large measure upon the good faith and good judgment of defense counsel" in determining whether an actual conflict of interest exists. 446 U.S. at 347, 100 S.Ct. at 1717. With the benefit of hindsight furnished by Holloway and Cuyler, it is apparent that the district court should have pursued essentially this inquiry when Greene moved for a severance. The court then could have determined whether a conflict actually existed or whether the motion was a dilatory tactic. Holloway, 435 U.S. at 486-87, 98 S.Ct. at 1179-1180.
52
For the reasons we mentioned in Part II, neither Young nor Dyson should be required to divulge the content of the privileged information that Dyson received, unless Young expressly waives the lawyer-client privilege.
53
If the court finds that Dyson had received from Young information detrimental to his defense and beneficial to Hudson's it will be apparent that a conflict of interest existed. It also will be apparent that this conflict impermissibly infringed Young's right to testify in his own behalf, for, in accordance with the ruling of the court, he was either required to answer incriminating questions or seek refuge in the lawyer-client privilege. In either event, his right to a fair trial would have been infringed, and he should be granted a new trial.
54
Conversely, if the facts disclose that no conflict of interest existed, the judgment need not be disturbed.
55
VACATED AND REMANDED.
1
On direct appeal we affirmed. See United States v. Young, 512 F.2d 321 (4th Cir. 1975). The issue raised in this motion was not presented at that time. If it had been, we would have been required to remit Young to his remedy, if any, under § 2255 because the record of the criminal trial is insufficient to resolve this issue
2
Cuyler and Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), on which Cuyler relied in part, were decided after Young's trial, and consequently the district court did not have the benefit of these opinions
3
In Cuyler the Court held that state judges are not required by the Constitution to initiate inquiries about the effect of multiple representation. The duty of a federal court to make such inquiries is governed by Fed.R.Crim.P. 44(c) which became effective Dec. 1, 1980. See Cuyler, 446 U.S. at 346 and n.10, 100 S.Ct. at 1717 and n.10 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/461058/ | 777 F.2d 415
14 Collier Bankr.Cas.2d 44, Bankr. L. Rep. P 70,857In re STEVENSON ASSOCIATES, INC., Debtor.Charles W. STEVENSON, Appellant,v.STEVENSON ASSOCIATES, Appellee.
No. 84-5162.
United States Court of Appeals,Eighth Circuit.
Submitted June 14, 1985.Decided Nov. 15, 1985.
Charles N. Nauen, Minneapolis, Minn., for appellant.
Thomas G. Lovett, Jr., Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, JOHN R. GIBSON, Circuit Judge, and PHILLIPS,* Senior Circuit Judge.
JOHN R. GIBSON, Circuit Judge.
1
Charles W. Stevenson appeals from an order of the bankruptcy court, affirmed by the district court, disallowing his claim against the bankruptcy estate of Stevenson Associates, Inc. (Associates), for amounts of deferred compensation owed pursuant to an employment agreement. The bankruptcy judge without an evidentiary hearing concluded, and the district court agreed, that Stevenson's claim was invalid as a matter of law because the employment agreement provided explicitly for Associates' complete discharge from all contractual obligations in the event of its liquidation in bankruptcy. Stevenson presents arguments in this appeal based on contract law principles, due process, laches, and public policy. We conclude that the discharge provision does not present an absolute bar to Stevenson's recovery if, as Stevenson alleges, the liquidation in bankruptcy was caused by Associates' culpable misconduct. Therefore, we vacate the judgment of the district court and remand to the bankruptcy court for a determination of whether the liquidation of Associates was so caused.
2
Stevenson founded Stevenson Associates, Inc., an advertising agency, in 1954. On August 18, 1977, he sold his majority interest of 2,538 shares, valued at $63 per share, to officers of the agency. On the same day the parties entered into an employment agreement. Stevenson was to hold for five years the position of Founder Chairman. Basic compensation was set at $40,000 per year. In this position Stevenson was to act in an advisory capacity only; he was given no power to manage or vote on corporate matters. In addition, for the five years after his full retirement on August 18, 1982, provided he did not voluntarily leave Associates before that date, Stevenson was to receive deferred compensation in the amount of $40,000 per year. The contract stated that part of the consideration supporting Associates' promise to pay the deferred compensation was to be Stevenson's provision of employment services as Founder Chairman. In the event of Stevenson's disability or death during the first five-year period, the contract provided that he or his personal representative would receive deferred compensation at a rate of $10,000 per calendar-year quarter for the period of time equal to that during which he served as Founder Chairman. Stevenson also agreed not to work during the life of the employment contract for any business that competed with Associates. Finally, the contract contained the following clause:
3
10. Bankruptcy or Insolvency of Company. In the event Company liquidates due to insolvency or events resulting in active bankruptcy, this agreement shall terminate and shall be considered as fully and completely discharged.
4
On December 5, 1980, Associates filed for reorganization under Chapter 11 of the Bankruptcy Act. The Chapter 11 proceeding was converted into a Chapter 7 liquidation proceeding on June 12, 1981. At the time of the first filing, just over three years after the sale, the book value of Associates' stock had dropped to zero. Stevenson asserts in his brief, as he did throughout this litigation, that the new officers and directors, after purchasing Associates, became interested in other business, particularly the development of a commercial real estate project, and used their energies and Associates' resources, reputation, and credit record to amass funds to finance this venture. In the process, Stevenson alleges, they ignored the advertising business upon which Stevenson had built the agency, causing Associates' decline.
5
Stevenson timely filed five proofs of claim. The claim with which we here are concerned, filed on May 11, 1981, rests on indebtedness of $224,200 for unpaid deferred compensation. Initially, the trustee in bankruptcy determined this claim to be valid, and in his filing to the bankruptcy judge entitled "Objection to Allowance of Claims," specifically requested that the claim for unpaid deferred compensation be allowed. On December 9, 1983, the parties appeared in bankruptcy court. The bankruptcy judge, over protest by the trustee, challenged the allowance on the basis that Stevenson, as a member of Associates' board of directors, despite his having no control over Associates' affairs, was an insider under 11 U.S.C. Sec. 101(28)(A)(iv) (West Supp.1985). The bankruptcy judge, therefore, suggested that Stevenson's claim should be equitably subordinated to the claims of other unsecured creditors under 11 U.S.C. Sec. 510(b) (West Supp.1985). Stevenson's counsel, taken unawares by this sua sponte objection, requested 30 days to brief the issue. The bankruptcy judge set the hearing for December 14, 1983, five days later.
6
At the December 14th hearing, the trustee for the first time stated--he had not submitted a brief to the bankruptcy judge, nor has he done so at any subsequent stage of this litigation--that after examining the employment contract, he objected to Stevenson's claim for unpaid deferred compensation. The objection was based on the contract's discharge provision at paragraph 10. Stevenson's counsel had been advised of the trustee's changed position by telephone only the previous day and objected to the lack of adequate notice. He thus requested that he be afforded 30 days' notice and an evidentiary hearing to respond to the objection, procedural measures which he asserted were required by the due process provisions of the Bankruptcy Act and Rules. He also complained that the mismanagement of Associates by the new owners, causing the agency's eventual decline, should render inoperative the discharge provision. The bankruptcy judge denied the request for additional notice and hearing. In addition, observing that the claim was facially invalid because the employment agreement explicitly provided that all of Associates' obligations would be fully discharged and Stevenson's rights terminated in the event of liquidation in bankruptcy, the bankruptcy judge sustained the objection and denied the claim.
7
The district court affirmed the decision of the bankruptcy judge. Under 11 U.S.C. Sec. 502(a) (West Supp.1985), a properly filed claim is deemed allowed unless a party in interest objects. If a claim is challenged, the claimant, under 11 U.S.C. Sec. 502(b) (West Supp.1985), must be given notice of the objection and a hearing. A written copy of the objection along with notice of the hearing must be delivered to the claimant at least 30 days before the hearing. Bankr.R. 3007 (West 1984). The court conceded that the procedures employed by the bankruptcy judge were "technically defective." Stevenson v. Stevenson Associates, 3-84 Civ. 184, slip op. at 4 (D.Minn.1984). Nevertheless, it concluded that despite the bankruptcy judge's disregard of these requirements, the procedural defects did not "reach the level of constitutional denial of due process." Slip op. at 4. The court reasoned that the disallowance was based on a legal conclusion to which an evidentiary hearing would have been immaterial. Since Stevenson had received some notice and some opportunity to be heard, due process had been satisfied. The court also rejected arguments based on contract law principles, laches, and public policy. Finally, the court concluded that the bankruptcy judge's determination that liquidation in bankruptcy fully discharged Associates' obligations under the employment contract was correct and affirmed this disallowance.
I.
8
On this appeal, Stevenson reiterates the arguments advanced throughout these proceedings. Some of these arguments seek remand for an evidentiary hearing; others call for outright reversal of the district court's disallowance. These arguments require us to review the district court's interpretation and application of the various provisions of the Bankruptcy Act and Rules, and its construction of the language of the employment contract. We thus consider the scope of our review of the district court's conclusions.
9
A court of appeals exercises plenary review of a district court's interpretation and application of federal statutes or regulations; these raise questions only of law. United States v. Singer Manufacturing Co., 374 U.S. 174, 193, 83 S.Ct. 1773, 1783, 10 L.Ed.2d 823 (1963); United States v. Parke, Davis & Co., 362 U.S. 29, 43-45, 80 S.Ct. 503, 511-12, 4 L.Ed.2d 505 (1960). Similarly, where an adjudication of parties' rights and obligations under a contract rests solely upon a reading of the contract itself, and involves no findings of fact or questions of credibility, we review the district court's conclusions of law free of the clearly erroneous standard of Fed.R.Civ.P. 52(a). Western Contracting Corp. v. Dow Chemical Co., 664 F.2d 1097, 1100 (8th Cir.1981); Swanson v. Baker Industries, 615 F.2d 479, 483 (8th Cir.1980); Teamsters, Local No. 688 v. Crown Cork & Seal Co., 488 F.2d 738, 740 (8th Cir.1973).
10
Stevenson's challenges based on due process and on the effect of the contract's discharge clause both were rejected without an evidentiary hearing. Judgment as a matter of law based solely on the effect of statutory or contract provisions, like summary judgment, may be entered only when it is clear that the truth is known and that there are no disputed material issues of fact requiring resolution by evidentiary hearing. See Trnka v. Elanco Products, 709 F.2d 1223, 1225 (8th Cir.1983); St. Louis County Bank v. United States, 674 F.2d 1207, 1209 (8th Cir.1982). We therefore must view such a case in the light most favorable to the party against whom judgment was entered, granting to that party all beneficial inferences the record can withstand. See Elbe v. Yankton Independent School District No. 1, 714 F.2d 848, 850 (8th Cir.1983); Bellflower v. Pennise, 548 F.2d 776, 778 (8th Cir.1977).II.
11
Stevenson presses two theories to urge our remand of the case for an evidentiary hearing. He argues that without knowledge of the circumstances surrounding Associates' decline and liquidation, the bankruptcy court was unable to properly adjudicate the parties' rights and duties under the contract. He also contends that he is entitled to 30 days' written notice of the trustee's objection and an adequate hearing, as is required by the due process provisions of the Bankruptcy Act and Rules.
12
While this dispute reaches us through a proceeding in bankruptcy, its resolution rests on well-known principles of contract law. The employment agreement provides that it shall be construed under the law of Minnesota, the place of its making, and we will apply that law. Medtronic, Inc. v. Gibbons, 684 F.2d 565, 568 (8th Cir.1982); see also Milliken & Co. v. Eagle Packaging Co., 295 N.W.2d 377, 380 n. 1 (Minn.1980). In its essentials, the agreement required Associates to pay Stevenson $40,000 per year in deferred compensation for the five years commencing on August 19, 1982, unless either Stevenson voluntarily left his employment with Associates during the five years preceding August 19, 1982, or Associates liquidated in bankruptcy during the ten-year period covered by the contract. Associates' duty to perform under the employment contract thus may be viewed as having been conditioned upon the nonoccurrence of two events. Under this analysis, the bankruptcy judge essentially concluded, and the district court agreed, that upon Associates' liquidation in bankruptcy, the second condition had failed, thus as a matter of law discharging Associates' obligation to perform under the contract. Since for the purpose of contesting claims of creditors against a bankruptcy estate the trustee in bankruptcy may assert all defenses to which the debtor would be entitled, Bank of Marin v. England, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197 (1966); Donaldson v. Farwell, 93 U.S. 631, 634, 3 Otto 631, 23 L.Ed. 993 (1876); Schneider v. O'Neal, 243 F.2d 914, 918 (8th Cir.1957); see 2 Collier on Bankruptcy p 323.01 (L. King, ed., 15th ed. 1985) (explaining that principle remains in force under Bankruptcy Act of 1978), the obligation of the trustee, as representative of the estate, 11 U.S.C. Sec. 323(a) (1982), also is discharged.
13
Failure of a condition to performance of a contractual duty, however, does not as a matter of law discharge the promissor of that duty. It long has been held that if the occurrence of an event which triggers the discharge of a promissor's obligation is caused by the promissor's culpable misconduct, the legal duty will not be discharged. Nodland v. Chirpich, 307 Minn. 360, 365-66, 240 N.W.2d 513, 516 (1976); accord Restatement (Second) of Contracts Sec. 230(2)(a); 5 Williston on Contracts Sec. 677, at 224-25 (W. Jaeger, ed., 3d ed. 1961) ("It is a principle of fundamental justice that if a promissor is himself the cause of failure of performance, either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure."). At heart the prevention doctrine, as it has been called, Shear v. National Rifle Association, 606 F.2d 1251, 1254-55 (D.C.Cir.1979), is merely a corollary to the general principle that equity will not permit one to rely on one's own misconduct. Deitrick v. Greaney, 309 U.S. 190, 196, 60 S.Ct. 480, 483, 84 L.Ed. 694 (1940).
14
A court sitting in bankruptcy applies equitable principles, Pepper v. Litton, 308 U.S. 295, 303-04, 60 S.Ct. 238, 243-44, 84 L.Ed. 281 (1939), and indeed, courts have recognized the applicability of the prevention doctrine to bankruptcy cases. In Christensen v. Felton, 322 F.2d 323 (9th Cir.1963), the court ruled as error the trial court's decision to disallow creditors' claims based on a bankruptcy discharge provision in a contract. Christensen involved the sale of a corporation's stock. The terms of the agreement between the shareholders and the purchaser were set out in a written contract which contained a provision discharging the purchaser from its obligation to pay the balance due to the shareholders if either the purchased corporation or the purchaser entered into bankruptcy. Id. at 325. Within about a year of the transaction both became bankrupt. The creditors, invoking the prevention doctrine to overcome the bar of the discharge provision, presented evidence that the purchaser had "systematically looted the assets" of the purchased corporation, and that at the time of the transaction the purchased corporation's assets were more than twice its liabilities, but upon bankruptcy one year later it was "hopelessly insolvent." Id. at 326. The court stated:
15
The testimony shows that to sustain the application of the contract which the referee adopted would permit the bankrupt to profit by its own wrong by wrecking the purchased corporation and diverting to its own use much of those assets, these being what gave the stock value and, having done so, to say to the selling stockholders: "Your company is now bankrupt, as are we, and you have agreed that under these conditions we need not pay you."
16
Id. at 327. The court held that the bankruptcies were caused by the purchaser's culpable misconduct, and that such culpable misconduct prevented the trustee, as successor to the bankrupt, from relying on the discharge provision. Id.
17
Stevenson argues that similar culpable misconduct precipitated Associates' decline. Stevenson asserts in his brief and oral argument to this court, as he has at each stage of this proceeding, that after purchasing Stevenson's majority interest in Associates in 1977, the new owners, who also were its officers and directors, engaged in a rash course of business ventures, including the development of a commercial real estate property. These activities, he contends, improperly diverted Associates' resources from its established advertising business. Stevenson further alleges that the new owners misused Associates' stable credit record to secure additional financing for these ventures, recklessly threatening Associates' solvency. Stevenson also represents that when he sold his stock in the agency which he successfully had managed for 23 years, its book value was $63 a share, and that in just over three years, when Associates filed under Chapter 11, the stock had become worthless. Stevenson thus concludes that the new owners' bad faith management of Associates' resources, resulting in the agency's decline and liquidation, should bar the trustee in bankruptcy, as Associates' successor, from relying on the discharge provision to avoid Associates' contractual obligation to pay deferred compensation.
18
The absence of earlier resolution of this argument can in no way fairly be attributed to Stevenson's lack of diligence. Initially, the parties appeared before the bankruptcy judge merely to confirm a filing by the trustee which consented to allowance of Stevenson's claim for unpaid deferred compensation. At that appearance, on Friday, December 9, the bankruptcy judge sua sponte called for subordination of the claim and granted only five days for presentation of a brief and preparation for hearing. Then at the next appearance, on December 14, the trustee raised for the first time upon one day's oral notice the discharge provision objection. At no time was a filing presented which squarely set forth any objection. Stevenson's counsel at each turn challenged the procedures imposed and articulated the factual underpinnings to the prevention doctrine response. Because the proceedings to this point were conducted in substantial haste, we believe that Stevenson's good faith presentation of these arguments, for the limited purposes of the hearing, adequately raised issues that should have been resolved by the bankruptcy court.
19
These issues, however, remain unresolved, and we cannot say without factual record that Stevenson's claim for unpaid deferred compensation should be disallowed. We believe that Stevenson is entitled to a hearing at which he may present evidence to support his assertions. Therefore, we vacate the judgment of the district court and remand to the bankruptcy court for a determination of whether the failure and ultimate liquidation of Associates was caused by its culpable misconduct.
20
We recognize that courts cannot remake contracts or imply provisions through judicial interpretation. Telex Corp. v. Data Products, 271 Minn. 288, 295, 135 N.W.2d 681, 687 (1965); Anderson v. Twin Cities Rapid Transit, 250 Minn. 167, 176, 84 N.W.2d 593, 599-600 (1957). However, a contract is deemed executed with reference to settled principles of law governing its subject matter. Blaisdell v. Home Building & Loan Association, 189 Minn. 422, 425, 249 N.W. 334, 335 (1933), aff'd, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934); Winter v. Liles, 354 N.W.2d 70, 73 (Minn.Ct.App.1984). A promise to act in good faith to bring about the occurrence of a condition to performance is implied by law in every contract. CRI, Inc. v. Watson, 608 F.2d 1137, 1141-42 (8th Cir.1979) (applying Minnesota law). Thus, we need not and do not suggest that a discharge provision such as that expressed in paragraph 10 is void for all purposes. If the record developed on remand shows that Associates' liquidation in bankruptcy resulted from economic circumstances or despite the good faith exercise of reasonable business judgment, the discharge provision must be accorded its intended effect. We hold only that the discharge provision under these circumstances does not as a matter of law defeat Stevenson's claim on the bankruptcy estate.
21
Stevenson also seeks remand on the theory that the procedures employed by the bankruptcy court and approved by the district court violated the due process provisions of the Bankruptcy Act and Rules. Since we have ordered remand on other grounds, we need not consider this argument. We are satisfied that Stevenson now has sufficient notice and an opportunity to make his case as required by the Bankruptcy Act and Rules.
III.
22
Stevenson presents three arguments to obtain reversal of the disallowance. He contends that principles of quantum meruit require that he receive the deferred compensation for employment services requested, performed, and accepted. He also argues that the doctrine of laches bars the trustee's objection as untimely, and that the discharge provision is void as against public policy.
23
Stevenson asserts that in entering into the employment agreement the parties expected that unless Stevenson voluntarily left Associates' employ during the five-year period beginning August 18, 1977, which he did not, he would upon his full retirement be paid $40,000 per year in deferred compensation for the time he actually served up to five years. At the time Associates filed for liquidation, Stevenson, relying on this mutual expectation, had performed the services of Founder Chairman for nearly four years. Associates received the benefit of these services. On this basis, Stevenson now urges that notwithstanding the discharge provision, principles of quantum meruit should be applied to effect his reliance interest and prevent Associates' unjust enrichment. He thus seeks reversal of the district court judgment and allowance of a claim of $160,000 against the bankruptcy estate, as the remainder due on four years' services.
24
Recovery in quantum meruit may be obtained where a benefit is conferred and knowingly accepted under such circumstances that would make it unjust to permit its retention without payment. Ylijarvi v. Brockphaler, 213 Minn. 385, 393, 7 N.W.2d 314, 319 (1942); see generally 17 C.J.S. Sec. 6, at 572-73 (1963 & Supp.1985). However, there can be no recovery in quantum meruit where a valid express contract between the parties exists. Breza v. Thaldorf, 276 Minn. 180, 183, 149 N.W.2d 276, 279 (1967); Schimmelpfennig v. Gaedke, 223 Minn. 542, 548, 27 N.W.2d 416, 420-21 (1947). Parties to an express contract are entitled to have their rights and duties adjudicated exclusively by its terms. See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977); Carl Bolander & Sons, Inc. v. United Stockyards Corp., 298 Minn. 428, 433, 215 N.W.2d 473, 476 (1974). Stevenson's claim is based upon the employment contract and we have remanded for a determination whether the express provisions bar or do not bar his contractual claim. We thus reject Stevenson's claim for recovery in quantum meruit.
25
Stevenson argues that the trustee's objection, made over two years after Stevenson filed his claim, should be barred by the doctrine of laches. He also urges that the discharge provision creates a forfeiture which should be deemed void as contrary to public policy. We have considered these arguments and the cases offered in support of them and conclude that they are without merit.
26
We vacate the order of the district court and remand this case to the bankruptcy court for proceedings consistent with this opinion.
*
The HONORABLE HARRY PHILLIPS, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation. Judge Phillips participated in oral argument and at conference agreed with the vote of the court. However, due to his untimely death he did not have an opportunity to review this opinion | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/451913/ | 761 F.2d 1101
2 Fed. R. Serv. 3d 472
Philip Carmikle PARKS, A minor, By and Through his parentsand next friends, Bobby Joe PARKS and Clara MaeParks, et al., Plaintiffs-Appellants,v.Geneva COLLINS, individually, and in her capacity asInstructor, Claiborne County Schools, et al.,Defendants-Appellees.
No. 84-4158.
United States Court of Appeals,Fifth Circuit.
June 3, 1985.
Robert C. Connor, Jr., Port Gibson, Miss., Wilbur Colom, North Columbus, Miss., Bodron & Yoste, Vicksburg, Miss., for plaintiffs-appellants.
Frank Campbell, Dist. Atty., Vicksburg, Miss., for Claiborne County.
Allen L. Burrell, Port Gibson, Miss., for Port Gibson Bank.
Brown, Alexander & Sanders, Jackson, Miss., Everett T. Sanders, Natchez, Miss., for Claiborne Co. Bd. of Educ.
Daniel, Coker, Horton & Bell, Jackson, Miss., for Travelers Indem. Co.
Wells, Wells, Marble, Jackson, Miss., for Horace Mann Ins. Co.
Charles A. Brewer, Jackson, Miss., for Geneva Collins.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GOLDBERG, RUBIN, and HILL, Circuit Judges.
ROBERT MADDEN HILL, Circuit Judge:
1
Appellants challenge an order of the magistrate setting aside an order of the district court granting them a default judgment on a writ of garnishment against appellee Claiborne County Board of Education. We decline to address the substantive issues on appeal as we find the magistrate's order was interlocutory and thus not appealable. Accordingly, the appeal is dismissed.
I. Background
2
Philip C. Parks, a minor, by and through his parents as next friends, sued Geneva Collins, individually, and in her capacity as instructor, Claiborne County Schools, Arthur W. Watson, Jr., individually, and in his capacity as principal, Addison Jr. High School, and John Charles Noble, individually, and in his capacity as superintendent, Claiborne County Public Schools, alleging violations of his civil rights and invasion of his privacy as a result of public disclosure of confidential records. The action, before the magistrate by consent of the parties, was tried to a jury which found against Geneva Collins and John Noble, individually. The jury also found that Parks and his mother, Clara Mae Parks, were entitled to $50,000 in actual damages and $30,000 in punitive damages. Judgment was entered in favor of plaintiffs on the jury verdict against Collins and Noble; plaintiffs also were awarded attorney's fees in the amount of $36,226, plus interest from the date of judgment. From this point the factual and procedural background of this case becomes somewhat complicated.
3
In an attempt to collect the judgment, plaintiffs filed a Suggestion for Writ of Garnishment on February 23, 1983, with Collins' employer, the Claiborne County Board of Education (the Board). On February 28 a United States Marshal served the writ upon Dr. Joseph Travillion, the Superintendent of Education of the Board. Because no answer had been filed to the writ of garnishment within the requisite twenty-day period, plaintiffs requested an entry of default against the Board, which the clerk of the district court entered on March 22. Thereafter, on September 6 the district court entered a default judgment against the Board in the amount of $116,226.
4
On November 23 a writ of garnishment was issued against funds of the Board on deposit at the Port Gibson Bank (the bank), in Port Gibson, Mississippi. On December 5, the magistrate who presided over the original jury trial, ordered the bank to disburse funds it held on deposit for the Board in order to satisfy the default judgment. On the same date, the bank paid $118,128 into the registry of the court; the next day, the district court ordered the clerk of the court to disburse the funds to the plaintiffs.
5
On January 12, 1984, Frank Campbell, the state district attorney, on behalf of Claiborne County, Mississippi, filed a motion to set aside the default judgment and a motion for a preliminary injunction and other relief; on the same date, the magistrate ordered that the motions be set for hearing before him on February 2. Then, on January 18, the Board also moved, pursuant to Rule 60(b), to set aside the default judgment1 and applied to the district court for a stay, injunction, and other relief; these motions were noticed for a hearing before the district judge on February 6. On January 31, however, the Board renoticed its motions before the magistrate, after which, on February 8, the magistrate heard both the motions of the district attorney and of the Board.2 Thereafter, on February 29, the magistrate entered an order setting aside the default judgment which had been entered by the district court on September 1, 1983; in addition, the magistrate enjoined the plaintiffs from spending or disposing of the previously received funds that the bank had paid into the registry of the court. Plaintiffs timely noticed their appeal to this Court from the magistrate's February 29 order.
II. Appealability
6
Appellants bring before this Court issues that are raised by the grant of a Rule 60(b) motion to set aside a default judgment entered in their favor. The magistrate's order was interlocutory, however, and thus nonappealable. See Hand v. United States, 441 F.2d 529, 530 n. 1 (5th Cir.1971). When an order granting a Rule 60(b) motion, "merely vacates the judgment and leaves the case pending for further determination, the order is akin to an order granting a new trial and is interlocutory and nonappealable." 7 J. Moore, Moore's Federal Practice p 60.30 (2d ed. 1983) (footnote omitted); see also 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2871 (1973).
7
Appellants contend and appellees appear to concede that the magistrate's order was appealable pursuant to 28 U.S.C. Sec. 1291 which grants jurisdiction to this Court to hear "appeals from all final decisions of the district courts...."3 Appellants offer this line of reasoning for the contention that the magistrate's order is "final." They assert that, relying upon the Mississippi statute that prompted the magistrate to grant the motion to set aside the default judgment,4 the Board could choose ad infinitum to ignore any and all subsequent proceedings. Thus, they argue, the order is a final decision, and falls within Sec. 1291, since it will, as a practical matter, leave nothing more to be adjudged. Cf. 7 J. Moore, Moore's Federal Practice p 60.30 n. 11 (2d ed. 1983). We decline the offer to follow this line of reasoning. The magistrate has merely set aside a default judgment previously entered; the only consequence of such an order is that the court will retain jurisdiction over the parties and address the issues raised in the Suggestion for Writ of Garnishment on the merits or, perhaps, enter another default judgment. In either event, the action is properly before the lower court and not this Court. The order of the magistrate is not a "final decision." Accordingly, we hold that the February 29 order setting aside the default judgment is interlocutory and thus nonappealable. Hand, 441 F.2d at 530 n. 1.
III. The Magistrate's Authority
8
Having determined that the magistrate's February 29 order setting aside the default judgment was not final, we note what appears to be a lack of authority on the part of the magistrate to enter such an order. There is no indication in the record before us that the district court referred consideration of the motion to set aside the default judgment to the magistrate, nor does our review of the record indicate that the parties consented to submit to the authority of the magistrate.
9
If the magistrate had authority to enter the order setting aside the district court's default judgment, his authority derived from the statutory grant provided by 28 U.S.C. Sec. 636. See Ford v. Estelle, 740 F.2d 374 (5th Cir.1984). Section 636(b) empowers a district judge to refer to a magistrate, without consent of the parties:
10
(1) nondispositive motions, which the magistrate may "hear and determine" subject only to district court review for clear error, Sec. 636(b)(1)(A); or (2) dispositive motions or "prisoner petitions challenging conditions of confinement," of which the magistrate may recommend disposition subject to the parties' right to object and the district court's review de novo. Sec. 636(b)(1)(B).
11
Ford, 740 F.2d at 377.5 The magistrate, in this action, did not rule on a "pretrial matter pending before the court," see Sec. 636(b)(1)(A), nor does the Rule 60(b) motion constitute one of the motions excepted in subsection (A) or, by operation of the statute, included in subsection (B). In addition, the motion involves neither post-trial relief of a criminal offender nor a challenge to conditions of confinement. Accordingly, the magistrate's exercise of jurisdiction in ruling on the 60(b) motion was not effectuated pursuant to Sec. 636(b).6
12
If the magistrate was authorized to rule on the motions, his authority would be derived by virtue of Sec. 636(c).7 The parties concede that the original action was tried, with a jury, before the magistrate pursuant to Sec. 636(c). The original action was referred to the magistrate by the district judge and the parties consented to the designation of the magistrate to exercise jurisdiction over the matter. In noticing the hearing of the Rule 60(b) motion before the magistrate, the parties apparently assumed that the magistrate's jurisdiction over the original action reached as well to the garnishment action. Accordingly, it becomes pertinent whether Sec. 636(c) authorized the magistrate to act on the motions.
13
A magistrate may grant or deny a motion to set aside a default judgment by virtue of Sec. 636(c)(1) which states that the magistrate "may conduct any or all proceedings in a jury or nonjury civil matter ... when specially designated to exercise such jurisdiction by the district court...." (emphasis added). We conclude, however, that the magistrate did not have authority pursuant to Sec. 636(c) to grant the Rule 60(b) motion for two reasons. First, fatal to the magistrate's exercise of authority is the lack of any order of reference from the district judge. The magistrate heard the motions to set aside the default judgment apparently by virtue of the fact that they were noticed for a hearing before the magistrate rather than before the district court. Moreover, neither party successfully explained, at oral argument, how the motions came to rest with the magistrate. Consequently, we find that the lack of an order referring the motion to the magistrate precludes the magistrate from exercising jurisdiction over the matter. See, e.g., Alaniz v. California Processors, Inc., 690 F.2d 717, 719-20 (9th Cir.1982).
14
Second, even if the motions had been properly referred to the magistrate, we find no indication that the parties to the garnishment action consented to have the magistrate rule on the 60(b) motions. Notwithstanding the parties' consent to allow the magistrate to try the original action, the parties did not consent to such jurisdiction in the garnishment action. Appellants moved, before the district judge, for a default judgment on the garnishment; thereafter, the district judge entered a default judgment. Both actions evidence a lack of consent by the parties to allow the magistrate to exercise his authority over a matter that had been previously entertained by the district judge.8
15
Our conclusion that the magistrate's authority is lacking because of the lack of consent to such authority is supported by decisions of both this Circuit and the Ninth Circuit which hold that the parties' consent must be clear and unambiguous before the magistrate will be authorized to act under Sec. 636(c). See Glover v. Alabama Board of Corrections, 660 F.2d 120, 124 (5th Cir.1981); Alaniz, 690 F.2d at 720. Consequently, we will not assume that consent to trial of the original action by the magistrate constitutes a similar consent with respect to the garnishment action; nor will such consent be inferred by virtue of the fact that the Rule 60(b) motion was noticed before the magistrate and was heard by the magistrate with no objections. Most recently, we reaffirmed the rule that the consent of the parties "must be explicit, and will not be casually inferred from the conduct of the parties." Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984).
As we stated in Glover, supra:
16
[M]ore fundamental reasons also require us to construe narrowly the consent of the parties. First, the Supreme Court has stated that the Constitution requires that the judicial power of the United States be vested in courts having judges with life tenure and undiminishable compensation in order to protect judicial acts from executive or legislative coercion. O'Donoghue v. United States, 289 U.S. 516, 531, 53 S. Ct. 740, 743, 77 L. Ed. 1356 (1933). A decision without consent by a magistrate, a non-Article III judge, would undermine this objective of the Constitution and might violate the rights of the parties. See DeCosta v. Columbia Broadcasting Co., 520 F.2d 499, 503-06 (1st Cir.1975) (discussion in context of 28 U.S.C.A. Sec. 636(b) ), cert. denied, 423 U.S. 1073, 96 S. Ct. 856, 47 L. Ed. 2d 83 (1976); Ellis v. Buchkoe, 491 F.2d 716, 717 (6th Cir.1974) (interpreting Magistrates Act to allow magistrate to evaluate habeas corpus petitions, even if only to make recommendations to an Article III judge, "could raise serious constitutional questions"); Note, "Masters and Magistrates in the Federal Courts," 85 Harv.L.Rev. 779, 780-89 (1975). Second, the emphasis on the consent requirement in Congressional debates on the amendment evinces a desire for a clear expression of consent by the parties before allowing a magistrate authority under subsection (c). "The applicable legislative history indicates that consent to reference was considered to be a vital element of the amendment to ensure that referral would not violate constitutional rights. See, e.g., Cong.Rec. H5056 (daily ed. June 25, 1979) (Statement of Mr. Danielson); id. at H8725 (daily ed. Sept. 28, 1979) (Statement of Mr. Kastenmeier)." Calderon, supra, 630 F.2d at 353-54 n. 1.
17
Id. at 124.
18
As a result, on the record before us, the magistrate lacked authority to enter the order setting aside the default judgment.9 Accordingly, it would appear proper that after this dismissal, the district court should determine on the record before it, whether the magistrate had authority to enter the February 29 order granting the motion to set aside the default judgment. Should the district court conclude no such authority existed, it would then be proper for it to vacate the magistrate's order and proceed to decide the motions anew.
19
APPEAL DISMISSED.
1
Although the district attorney's motion of January 12 does not so indicate, the Board properly characterizes its motion to set aside the default judgment as a Fed.R.Civ.P. 60(b) motion. We note also that Fed.R.Civ.P. 55(c) provides that "[f]or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)."
2
It is unclear by what authority the magistrate heard these motions. The docket sheet does not reflect that the district court referred the Board's Rule 60(b) motion to the magistrate, nor is there any indication that the parties consented to allow the magistrate to hear the motion. Appellants asserted, at oral argument, that they merely responded to the district attorney's notice and the board's renotice of a hearing before the magistrate. See Part III, infra
3
It matters not that the parties might concede to our jurisdiction of this appeal. Where our jurisdiction of an appeal does not exist, we are duty bound to recognize that fact. Koke v. Phillips Petroleum Co., 730 F.2d 211, 214 (5th Cir.1984), cited in United States v. Garner, 749 F.2d 281, 284 (5th Cir.1985)
4
Miss.Code Ann. Sec. 11-35-13 (1972) provides that
In no case shall judgment be rendered against the state, a county, a municipality, or any state institution, board, commission, or authority for default in failing to make answer to a writ served hereunder.
5
28 U.S.C. Sec. 636(b), in pertinent part, provides:
(b)(1) Notwithstanding any provision of law to the contrary--
(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.
* * *
(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in sub-paragraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
* * *
(2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of Rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts.
(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.
6
We do not decide whether Sec. 636(b)(3), which provides that "[a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States," grants to the magistrate jurisdiction over post-trial motions of this sort. We decline to so decide because of the lack of any evidence indicating that the Rule 60(b) motion was assigned or referred to the magistrate as required by Sec. 636(b)(3). Further, we adhere to our earlier holding that:
under subsection (B)(3), a district judge may refer a civil case to a magistrate for trial on the merits if the parties consent and if the magistrate's findings are subject to de novo determination by the district court. We do not decide whether that authority is completely replaced by the consensual reference provisions of the 1979 amendments. 28 U.S.C. Sec. 636(c).
Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 355 n. 3 (5th Cir.1980). In Ford v. Estelle, 740 F.2d at 381, we recently limited the scope of Sec. 636(b)(3) stating that, "section 636(b)(3) cannot support reference of a civil action to a magistrate for jury trial, and to the extent that a case is to be tried to a jury it can be referred to a magistrate only upon consent of the parties under 636(c)." Whether the authority granted in Sec. 636(b)(3) has been completely replaced by Sec. 636(c), however, remains an unanswered question.
7
28 U.S.C. Sec. 636(c), in pertinent part, provides that:
(c) Notwithstanding any provision of law to the contrary--
(1) Upon the consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves....
(2) If a magistrate is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of their right to consent to the exercise of such jurisdiction. The decision of the parties shall be communicated to the clerk of court. Thereafter, neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate. Rules of court for the reference of civil matters to magistrates shall include procedures to protect the voluntariness of the parties' consent. (emphasis added).
8
Moreover, we note that the local rules for the Southern District of Mississippi defines a "motion ... for review of default judgments," S.D.Miss.R. 8(F)(1)(i), as a dispositive motion for purposes of Local Rule 8, which, in general, provides that "[u]pon consent of the parties, the district judge may refer any dispositive motion to a magistrate to hear and decide." S.D.Miss.R. 8(A)
In addition, Local Rule 7 states:
The clerk shall not accept a consent form unless it has been signed by all parties in the case.
S.D.Miss.R. 7(F)(2).
* * *
A case shall not be considered to have been assigned to a magistrate until the order of reference is executed and filed.
S.D.Miss.R. 7(F)(3)(a). Thus, the local rules, which parallel the requirements of Sec. 636, support the conclusion that absent a properly executed order of reference and absent a formally executed consent form, the magistrate is not authorized to rule on dispositive motions such as the Rule 60(b) motions at issue in this action.
9
Our resolution of this question does not affect the nonappealability of the magistrate's order. Rather, it strengthens our conclusion that the appeal must be dismissed. Even if we accepted appellants' argument that the magistrate's order was, as a practical matter, a final decision, the absence of an order of referral and of the parties' consent renders the magistrate's order nonappealable. See Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/537267/ | 897 F.2d 469
1990-1 Trade Cases 68,936, 29 Fed. R. Evid. Serv. 1170
UNITED STATES of America, Plaintiff-Appellee,v.SUNTAR ROOFING, INC.; and David Kevin Pratt, Defendants-Appellants.
Nos. 89-3113, 89-3114.
United States Court of Appeals,Tenth Circuit.
Feb. 27, 1990.
Laura Heiser (James F. Rill, Asst. Atty. Gen., and Judy L. Whalley, Deputy Asst. Atty. Gen., Dept. of Justice, Washington, D.C.; Diane C. Lotko-Baker, Ann M. Gales, and Kent Brown, Dept. of Justice, Chicago, Ill., with her on the brief), for plaintiff-appellee.
J. Lawrence Louk, of Fox & Partee (Byron Neal Fox, P.C., and Ronald E. Partee, P.C., on the brief), Kansas City, Mo., for defendants-appellants.
Before LOGAN, TACHA, and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
1
Appellants Suntar Roofing, Inc. (Suntar), and David Kevin Pratt (Pratt), president and part-owner of Suntar, appeal their convictions for unreasonably restraining interstate trade and commerce in violation of Sec. 1 of the Sherman Act (15 U.S.C. Sec. 1).
2
Appellants were indicted along with fellow defendants Ronan's Roofing, Inc. (Ronan's Roofing), and its president, Michael T. Ronan (Ronan). Additionally, in its bill of particulars the government identified three unindicted co-conspirators: (1) Tom Keaton (Keaton), a part-owner of Suntar and another roofing company, Keaton Brothers Roofing and Siding, Inc.; (2) Andy Boxley (Boxley), a Suntar employee during the alleged conspiracy; and (3) Samuel K. "Bud" Fleenor (Fleenor), an employee of Ronan's Roofing. At all relevant times, Suntar and Ronan's Roofing were Kansas corporations engaged in the business of constructing and installing cedar shake (shingle) roofs on single and multi-family homes in and around Kansas City, Kansas.
3
The indictment charged that the defendants and co-conspirators engaged in a continuing agreement, understanding and concert of action to allocate and divide among themselves customers for the construction and installation of roofs on new single and multi-family homes in the Kansas City, Kansas metropolitan area. The indictment further charged that commencing in or about June 1985 and continuing through mid-1986, the defendants and co-conspirators met to discuss prices, individual roofing projects, and the means to allocate specific customers between the two companies. The government alleged that they agreed to stop competing and refrained from competing for the business of each company's established customers.
4
The jury returned a verdict of not guilty as to defendants Ronan's Roofing and Ronan and a verdict of guilty as to defendants Suntar and Pratt. Appellants now challenge their convictions on the following bases: (1) that the trial judge erroneously treated the alleged activity as a "per se" violation of the Sherman Act; (2) that the jury instructions erroneously described the elements of the offense charged and that there was insufficient evidence to establish each element; (3) that the trial judge improperly admitted evidence of similar acts under Fed.R.Evid. 404(b); and (4) that the trial judge violated appellants' Sixth Amendment right to effective counsel by failing to require Suntar's counsel to withdraw because of a conflict of interest. We affirm.
ANALYSIS
A. Per Se Violation of the Sherman Act
5
Appellants contend that the trial court erred when it sustained the government's pre-trial motion to prevent the defendants from offering evidence of the reasonableness and/or economic justification for the alleged activities or evidence of the defendants' lack of intent to violate the law or to restrain trade. Thus, appellants allege that they were deprived of any opportunity to present evidence that the conduct charged was permissible under "rule of reason" analysis and that the jury was deprived of its factfinding function to determine whether the charged conduct unreasonably restrained competition.
6
Section 1 of the Sherman Act prohibits "[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce." Generally, courts apply a "rule of reason" analysis to determine whether particular practices or conduct come within the ambit of the statute. Under "rule of reason" analysis, the factfinder weighs all of the circumstances of a case to decide whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977).
7
However, since the passage of the Sherman Act, the courts have formulated and applied a per se rule of illegality for certain restrictive practices that are deemed to be manifestly anticompetitive. Id. at 50, 97 S.Ct. at 2557. As the Supreme Court explained in Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), "there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use." Here, appellants argue that the indictment in this case did not justify the trial court's application of per se analysis in that the restraint charged is not clearly "pernicious" as a matter of law.
8
In its pre-trial motion, the government argued that the conduct charged in the indictment, a "horizontal" customer allocation agreement,1 represented conduct which is illegal per se. Prior to trial, the trial court ruled that the indictment did in fact allege a per se violation of the Sherman Act, and that, assuming the government could present evidence establishing the violation charged in the indictment, the defendants would therefore be precluded from introducing evidence of reasonableness or justification at trial. At trial, the court concluded that the government had established the violation charged and therefore precluded defendants' additional evidence.
9
Consistent with the analysis of the Supreme Court and previous holdings of this court and of other circuits, we concur with the determination of the trial court and hold that the activity alleged in the indictment in this case, an agreement to allocate or divide customers between competitors within the same horizontal market, constitutes a per se violation of Sec. 1 of the Sherman Act. See United States v. Topco Assocs., Inc., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972) ("[o]ne of the classic examples of a per se violation of Sec. 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition"); United States v. Goodman, 850 F.2d 1473, 1476 (11th Cir.1988) ("customer allocation agreement alone is a per se violation of 15 U.S.C. Sec. 1") (citing United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1090 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978)); United States v. Cooperative Theatres of Ohio, Inc., 845 F.2d 1367, 1372 (6th Cir.1988) ("customer allocation ... is the type of 'naked restraint' which triggers application of the per se rule of illegality"); Mid-West Underground Storage, Inc. v. Porter, 717 F.2d 493, 497-98 n. 2 (10th Cir.1983) ("[t]he essence of a market allocation violation ... is that competitors apportion the market among themselves and cease competing in another's territory or for another's customers"); United States v. Koppers Co., 652 F.2d 290, 293 (2d Cir.), cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 617 (1981).
10
B. The Instructions and Sufficiency of the Evidence
11
Appellants next challenge the court's instructions to the jury as to each element of the violation charged and contend that the government failed to present sufficient evidence to establish each element. When examining a challenge to jury instructions, we review the record as a whole to determine whether the instructions state the law that governs and provided the jury with an ample understanding of the issues and standards applicable. Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988). Additionally, so long as the charge as a whole adequately states the law, the refusal to give a particular requested instruction is not an abuse of discretion. United States v. Hines, 696 F.2d 722, 733 (10th Cir.1982).
12
When reviewing the sufficiency of evidence underlying a verdict in a criminal case, we must affirm if, viewing all the direct and circumstantial evidence in the light most favorable to the government, a reasonable trier of fact would find the essential elements of the crime beyond a reasonable doubt. United States v. Culpepper, 834 F.2d 879, 881 (10th Cir.1987) (citing Jackson v. Virginia, 443 U.S. 307, 31819, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)).
1. Conspiracy
13
a. The instructions. Appellants first challenge the charge to the jury as to the conspiracy element of the Sherman Act violation, contending that the instructions failed to properly instruct the jury that a corporation cannot "conspire" with its owners, officers or employees. Appellants correctly point out that the law will not recognize a conspiracy when the only possible "conspirators" are a company and its employee, officer or owner, see Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984); Holter v. Moore & Co., 702 F.2d 854, 855 (10th Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 347, 78 L.Ed.2d 313 (1983). Thus, in the instant case, Pratt could not be convicted of conspiracy if his only possible fellow conspirator was Suntar.
14
However, instruction No. 15 adequately addresses this aspect of the law concerning conspiracy. The instruction stated that "[a] conspiracy to allocate customers is an agreement or understanding between competitors not to compete for the business of a particular customer or customers" (emphasis added). Additionally in this case, there was no evidence suggesting to the jury that Suntar was in competition with its president and part-owner, Pratt. Insofar as appellants contend that there was insufficient evidence for the jury to find that Suntar and Pratt conspired with any of the other alleged co-conspirators (see section 1.b. below), instruction 15 adequately instructed the jury that they could not properly base a guilty verdict upon a "conspiracy" between Suntar and Pratt.2
15
Appellants also contend that the trial court failed to properly educate the jury as to what constitutes an "agreement." In instructions 15 and 17, the trial court stated:
16
Before the jury may find that a defendant ... has become a member of a conspiracy, the evidence in a case must show beyond a reasonable doubt that the conspiracy was knowingly formed, and that the defendant knowingly participated in the unlawful plan, with the intent to advance or further some object or purpose of the conspiracy.
17
While a conspiracy involves an agreement to violate the law, it is not necessary that the persons charged meet each other and enter into an express or formal agreement, or that they stated in words or writing what the scheme was or how it was to be effected. It is sufficient to show that they tacitly came to a mutual understanding to allocate customers.
18
The agreement may be shown by a concert of action by members who participate with knowledge of the common purpose. Direct proof of a conspiracy may not be available, and the common purpose and plan may be disclosed only by the circumstances and acts of the members, such as their course of dealings.
19
These two instructions adequately set forth the law of this circuit as found in United States v. Metropolitan Enters., Inc., 728 F.2d 444, 450-51 (10th Cir.1984) (citing Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947); Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975)).
20
The trial court also instructed the jury properly as to membership in the conspiracy. Instruction 18 reads as follows:
21
To be a member of the conspiracy a defendant need not know all of the other members, nor all of the details of the conspiracy, nor the means by which the objects were to be accomplished. Each member of the conspiracy may perform separate and distinct acts. It is necessary, however, that the Government prove beyond a reasonable doubt that a defendant was aware of the common purpose, and was a willing participant, with the intent to advance the purpose of the conspiracy.
22
Again, this instruction properly sets forth the law of this circuit. In Metropolitan Enters., we stated, "[t]he evidence must show circumstances to warrant a jury finding that the conspirators had a unity of purpose or a common design and understanding." 728 F.2d at 450-51 (citing American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946)).
23
Finally, in instruction No. 20 the court instructed the jury as to the absence of a conspiracy under certain circumstances:
24
In the absence of an agreement on a course of action that is designed to eliminate competition, it is not unlawful for competitors to meet and exchange information necessary to preparation of a bid or discuss common aims or objectives or exchange information on independently derived prices.
25
Although this last instruction was not required (given the scope of the other five instructions), it certainly addressed appellants' concerns that the jury be instructed that "mere conversation" and "guilt by association" do not sustain a finding of conspiracy and that the conspirators must have a "meeting of minds."
26
We conclude the court's instructions adequately state the law of conspiracy and agreement. Accordingly, we cannot say that the trial court abused its discretion by failing to give any particular instruction suggested by appellant.
27
b. The evidence. Appellants also assert that there is insufficient evidence to support a finding of a conspiracy to allocate customers. Appellants specifically contend that since Suntar cannot legally conspire with its own president, the guilty verdicts against Suntar and Pratt are fatally inconsistent with the acquittals of appellants' only other co-defendants, Ronan's Roofing and Ronan. Additionally, appellants contend that the evidence "indicates that neither Pratt nor Suntar ... had the necessary meeting of the minds with anyone from Ronan's Roofing."
28
On appellants' motion for judgment of acquittal or for a new trial, 709 F.Supp. 1526, the trial court concluded that "inconsistent verdicts" is no longer a viable attack on a conviction in the wake of United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). The Powell decision reaffirmed the general rule that consistency in verdicts is not required. Id. at 62, 105 S.Ct. at 475; see also Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). Before Powell, the courts recognized a traditional exception to this general rule when a single conspirator is convicted in the same proceeding or prosecution in which all her alleged co-conspirators are acquitted. Hartzel v. United States, 322 U.S. 680, 682 n. 3, 64 S.Ct. 1233, 1234 n. 3, 88 L.Ed. 1534 (1944); United States v. Howard, 751 F.2d 336, 338 (10th Cir.1984), cert. denied, 472 U.S. 1030, 105 S.Ct. 3507, 87 L.Ed.2d 638 (1985); Romontio v. United States, 400 F.2d 618, 619 (10th Cir.1968), cert. dismissed, 402 U.S. 903, 91 S.Ct. 1384, 28 L.Ed.2d 644 (1971).
29
Concluding that the traditional exception is no longer viable after Powell, the trial court "decline[d] to apply the traditional exception to set aside the convictions of Suntar and Pratt." Unfortunately, the trial court's conclusion is substantially undercut by the fact that the Powell opinion does not discuss Hartzel or expressly overturn the traditionally recognized exception.3
30
However, the facts of this case do not demand the resolution of any conflict between Powell and Hartzel. Either analysis yields the same result. In line with Hartzel, this court has consistently held that a defendant's conspiracy conviction must be reversed only where all the alleged co-conspirators are acquitted. Howard, 751 F.2d at 338; Romontio, 400 F.2d at 619. Here, the government identified three unindicted co-conspirators in addition to the four indicted co-conspirators. The jury could have found the existence of a conspiracy involving one or more of the unindicted co-conspirators. Under the law of Howard and Romontio, appellants' convictions will stand if there is sufficient evidence in the record from which the jury could have concluded that a conspiracy existed between the appellants and any of the unindicted conspirators.
31
The three unindicted co-conspirators were Boxley, Fleenor and Keaton. Boxley, of course, was only an employee of Suntar and hence his participation could not support a conspiracy conviction of his employer. Keaton was a part owner of Suntar, but also was part owner of a competitor roofing contractor. See infra, at 480 n. 5. For purposes of our review and discussion, the evidence in the record points to Fleenor as the most likely co-conspirator of Pratt and Suntar. Indeed, there is sufficient evidence in the record from which the jury could conclude that Bud Fleenor met with Kevin Pratt on several occasions to discuss ending the price war between the two roofing companies and that he in fact reached an agreement with Pratt to allocate specific builder customers between Suntar and Ronan's Roofing.
32
First, Boxley testified that during summer 1985 Boxley, Pratt and Pratt's brother, Don Pratt, agreed that the 1985 "price war" between Suntar and Ronan's Roofing had gone "far enough." Boxley also testified that he called Fleenor at Ronan's Roofing to talk to him about "bringing an end to [the price war]." At that time, Fleenor refused to discuss the subject and hung up on Boxley. The next weekend, Boxley again called Fleenor, this time at Fleenor's residence, and the two agreed that "no one was winning [the price war] but the actual builders, and [Fleenor] told [Boxley] to have [Pratt] give [Ronan] a call at the office." The next Monday, Boxley reported his conversation to Pratt and Pratt said he would get hold of Ronan. Boxley also testified that Ronan then came over to Suntar's offices and met with Pratt. After that meeting, Pratt told Boxley that "the price war [is] over, that [Pratt] and [Ronan] had reached an agreement" and that "Ronan's was going to get their builders back and that [Suntar] would be getting [their] builders back." Thereafter, Pratt and Boxley held two meetings with Fleenor in the summer of 1985: one at Suntar's office and one at Ronan's office.
33
Next, Fleenor testified that, as a result of the discussions between Pratt and Fleenor, it was "understood" that Pratt would begin raising his prices on Don Bell Homes, a former Ronan's Roofing customer that had recently switched some of its subcontracting work to Suntar. Shortly thereafter, Ronan's Roofing won back the Don Bell account. Fleenor also testified that he told Pratt that Ronan's Roofing would cease using three-eighths inch shakes when their current supply ran out. (Keeping three-eighths inch shakes in stock enabled Ronan's Roofing to win the business of two builders, Glanville and Rodrock, that preferred using three-eighths inch shakes to higher quality half-inch shakes. Glanville and Rodrock had previously done business with Suntar when Ronan's Roofing did not carry three-eighths inch shakes. Most of Ronan's steady customers preferred using half-inch shakes.) Shortly thereafter, Ronan's stopped using three-eighths inch shakes and Glanville and Rodrock returned their business to Suntar.
34
Fleenor also testified that he told Pratt that Ronan's would begin raising the price of its bids to Rechfertig Homes and Rechfertig Taulbert, builders that previously had employed Suntar but that had switched to Ronan's during the price war. Ronan's Roofing did raise its prices to Rechfertig and Rechfertig Taulbert, and both builders eventually gave their business back to Suntar.
35
Appellants maintain that "[i]t is inconsistent for the jury to believe that Pratt or some other agent of Suntar conspired with Fleenor while at the same time finding that Ronan and Ronan's Roofing did not conspire with Suntar." However, appellants' argument on this point goes no further than this flat assertion. Viewing the evidence in the light most favorable to the government, we hold that there is sufficient evidence in the record from which the jury could conclude that Pratt conspired with Fleenor and that Fleenor did not have the approval of Ronan or Ronan's Roofing to engage in such activity.
36
In his testimony, Ronan gave his own account of his trip to Suntar's offices and of his discussion there with Pratt. Ronan testified that he never had conversations with Pratt or Boxley about ending the price war, and that he never entered an agreement with Suntar or Pratt to end the price war, split up builders or give back builders. He testified that he only visited Suntar's offices to collect a past-due bill for material sold to Suntar by Ronan's Roofing.
37
Ronan also testified that Fleenor told him that Suntar was willing to end the price war and that Fleenor asked Ronan what he thought. Ronan responded that there was "no way that I was going to split up any builders." Ronan testified that he did not recall having any other conversations with Fleenor regarding "end[ing] the price war." He testified that he never authorized or directed Fleenor to enter into any such agreement. Ronan also testified that Fleenor was solely responsible for sales and for bidding contracts for Ronan's Roofing and had been since 1980 or 1981. Fleenor's testimony corroborated this fact.
38
Therefore, we hold that there was sufficient evidence before the jury to support a finding that Suntar and Pratt had conspired with Bud Fleenor, an employee of Ronan's Roofing, to allocate builders between the two roofing companies.
2. Interstate commerce
39
a. The instructions. Appellants next contend that the trial court improperly instructed the jury on the jurisdictional prerequisite that the restraint of trade involve interstate commerce. Specifically, appellants argue that the trial court erred by failing to employ the following instruction proposed by appellant:
40
If you find that a defendant's illegal activities had either no impact or only a minimal impact on interstate trade, then you must find that the defendant's activities did not involve interstate commerce, and you must find the defendant not guilty.
41
The trial court first instructed that the jury was required to find "[t]hat the conspiracy charged in the indictment either affected interstate commerce in goods or services or occurred within the flow of interstate commerce in goods or services." This instruction ably states the law as established in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 242, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980):
42
Although the cases demonstrate the breadth of Sherman Act prohibitions, jurisdiction may not be invoked under that statute unless the relevant aspect of interstate commerce is identified; it is not sufficient merely to rely on identification of a relevant local activity and to presume an interrelationship with some unspecified aspect of interstate commerce. To establish jurisdiction a plaintiff must allege the critical relationship in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings either that the defendants' activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce.
43
(Citations omitted.) See also, Crane v. Intermountain Health Care, Inc., 637 F.2d 715, 723-24 (10th Cir.1980) ("even the purely local activity of a completely local business falls within the Act's reach if it appreciably affects a channel of commerce demonstrably interstate in character."). To further delineate the distinction between the "in commerce" and "effect on commerce" theories, the trial court instructed the jury:
44
An essential element of the offense prohibited by the Sherman Antitrust Act is that the defendants' alleged unreasonable restraint of trade must involve interstate commerce. The term "interstate commerce" includes transactions of commodities that are moving across state lines or that are in the continuous flow of commerce from the commencement of their journey until their final destination in a different state. When such transactions are involved, the amount of commerce restrained by the conspiracy is of no significance.
45
The term "interstate commerce" may also include entirely intrastate transactions in which some or all the defendants are not engaged in interstate commerce and some or all of the acts are wholly within a state, if the activities substantially and directly affect interstate commerce.
46
It is a question of fact for the jury to determine whether a particular defendant's conduct involves such interstate commerce in the light of business practices.
47
In our opinion, the instructions of the trial court adequately state the law of this circuit and properly put before the jury the requirements for finding "[a] nexus, assessed in practical terms, between interstate commerce and the challenged activity." Crane, 637 F.2d at 724.
48
b. The evidence. Appellants also argue that the government failed to present evidence that the customer allocation agreement reduced the flow of goods in interstate commerce. However, neither the "in commerce" nor "effect on commerce" test requires the government to quantify the adverse impact of the challenged activity. As this court noted in Crane:
49
"There is no ... concern with the specific magnitude of the impact on interstate commerce caused by the alleged conspiracy. Instead, the Court in each case ends its inquiry when it has satisfied itself that the logical and therefore probable effect of the alleged act is to reduce the flow of goods in interstate commerce."
50
637 F.2d at 724 (quoting Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48, 53 (3rd Cir.1973) (footnote omitted & emphasis added)); see also, Goldfarb v. Virginia State Bar, 421 U.S. 773, 785, 95 S.Ct. 2004, 2012, 44 L.Ed.2d 572 (1975) ("in commerce" theory; so long as the challenged business activity is in commerce, "no specific magnitude need be proved"); McLain, 444 U.S. at 243, 100 S.Ct. at 510 ("effect" test; "jurisdiction [is not] defeated in a case relying on anticompetitive effects by plaintiff's failure to quantify the adverse impact of defendant's conduct").
51
The burden on the government is even less when a per se restraint is at issue. In Burke v. Ford, 389 U.S. 320, 321-22, 88 S.Ct. 443, 444, 19 L.Ed.2d 554 (1967) (reversing 377 F.2d 901 (10th Cir.1967)), the Supreme Court held that in the context of horizontal territorial market divisions (a per se restraint), a substantial adverse effect on interstate commerce results, as a matter of practical economics, by virtue of the restraint itself. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 745, 96 S.Ct. 1848, 1852, 48 L.Ed.2d 338 (1976); United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1192 (3d Cir.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785 (1985); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1085-86 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978). The Burke court held:
52
The Court of Appeals held that proof of a state-wide wholesalers' market division in the distribution of goods retailed in substantial volume within the State but produced entirely out of the State was not by itself sufficient proof of an effect on interstate commerce. We disagree. Horizontal territorial divisions almost invariably reduce competition among the participants. When competition is reduced, prices increase and unit sales decrease. The wholesalers' territorial division here almost surely resulted in fewer sales to retailers--hence fewer purchases from out-of-state distillers--than would have occurred had free competition prevailed among the wholesalers.
53
389 U.S. at 321-22, 88 S.Ct. at 444 (citations omitted).
54
Assuming for purposes of our review that the jury concluded that the customer allocation agreement was a purely local activity, we hold that there was sufficient evidence in the record from which the jury could infer a substantial and appreciable effect on interstate commerce. All of the cedar shakes purchased by Suntar and Ronan's Roofing were purchased from out-of-state companies. From June 1985 until 1986, Ronan's Roofing purchased approximately $400,000 worth of shakes from a company in Oregon. Suntar and Ronan's Roofing combined purchased an additional $230,000 worth of shakes during that same time period from a lumber company in Oklahoma. All of these shakes were produced in mills in either the Northwest United States or in Canada.
55
Additionally, the jury could draw certain inferences from the existence of the per se restraint itself. Although the market division here was on a smaller scale than the state-wide divisions at issue in Burke, the jury could still infer that the practical effect of Suntar's and Fleenor's agreement to raise prices on certain builders and Fleenor's agreement to stop purchasing three-eighths inch shakes was to decrease the purchases of both companies from their out-of-state suppliers. Given the volume of shakes purchased the preceding year, the jury could well conclude that the agreements had a substantial and appreciable effect on interstate commerce.
C. Rule 404(b) Similar Acts Evidence
56
Appellants next contend that the trial court erred in ruling prior to trial that evidence of similar acts under Fed.R.Evid. 404(b)4 was admissible and in allowing such evidence to be presented at trial. At trial, the government presented evidence concerning similar customer allocation agreements entered into by the defendants before and during the time period charged in the indictment "to show that participation of defendants in the charged customer allocation conspiracy was part of a course of conduct and was knowing and intentional, rather than the result of accident or mistake." Appellants assert that this evidence should have been excluded for two reasons: (1) appellants' intent was not at issue because they denied that they had committed the acts charged in the indictment, and (2) the probative value of the evidence was far outweighed by its prejudicial effect.
57
A district court has broad discretion in determining whether to admit evidence of other crimes under 404(b), and its decision to admit such evidence will not be reversed by this court absent an abuse of discretion. United States v. Record, 873 F.2d 1363, 1373 (10th Cir.1989); United States v. Cuch, 842 F.2d 1173, 1177 (10th Cir.1988). A defendant is protected from unfair prejudice if the evidence is relevant and offered for a proper purpose, if the probative value is not substantially outweighed by its potential for unfair prejudice, and if the court, upon request, instructs the jury to consider the evidence only for the proper purpose for which it was admitted. Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988); Record, 873 F.2d at 1374. When offered to show intent, such similar acts should be reasonably similar and close in time to the offense charged. Cuch, 842 F.2d at 1176.
58
Similar acts evidence is admissible under 404(b) to prove knowledge, intent, or lack of mistake. Intent to restrain competition (here, by way of the customer allocation agreement) is an element of a criminal violation of the Sherman Act. United States v. Metropolitan Enters., Inc., 728 F.2d 444, 449 (10th Cir.1984) (citing United States v. United States Gypsum Co., 438 U.S. 422, 443-46, 98 S.Ct. 2864, 2876-78, 57 L.Ed.2d 854 (1978)). The requisite intent can be proved by showing that the defendants knowingly joined and participated in the conspiracy. Id. at 450, 98 S.Ct. at 2880. Thus, the intent of the conspirators was properly at issue during the trial.
59
As with all similar acts evidence, the evidence presented here to the jury carried some danger of prejudice and confusion of the issues. However, the evidence as admitted contained several of the Huddleston safeguards against unfair prejudice. First, the similar acts presented were reasonably similar and close in time to the offense charged.5 Second, the trial court repeatedly instructed the jury during trial as each piece of similar acts evidence was admitted that the evidence could be considered only for the limited purpose of proving knowledge, intent, or lack of mistake, and could only be considered with respect to the particular defendants against whom it was being admitted. Third, the court's instruction No. 25 at the close of trial properly stated the text of Rule 404(b) and reminded the jury of the limited purposes for which the evidence could be used. We therefore hold that the trial court did not abuse its discretion in admitting the similar acts evidence.
D. Conflict of Interest
60
Finally, Appellants contend that the trial court violated appellants' Sixth Amendment right to effective assistance of counsel by failing to allow Suntar's counsel to withdraw. At trial and on appeal, appellants maintain that because Byron Neal Fox (Fox) served as counsel for both Suntar and Keaton, his continued representation of Suntar at trial created a conflict of interest. (Keaton was named as an unindicted co-conspirator in the government's bill of particulars and he was a party to some of the discussions used as similar acts evidence at trial.)
61
"A court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflict warrants separate counsel." Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) (citations omitted). While we review de novo the district court's determination of whether an actual conflict existed, the court's resolution of the underlying facts giving rise to its conclusion is subject to a clearly erroneous standard of review. United States v. Soto Hernandez, 849 F.2d 1325, 1328-29 (10th Cir.1988).
In Soto Hernandez, this court stated:
62
The sixth amendment entitles a criminal defendant to an attorney free of interests that actually conflict with those of the accused. This right is not limited to cases involving joint representation of codefendants at a single trial, but extends to any situation in which a defendant's counsel owes conflicting duties to that defendant and some other third person. To prevail on an ineffective assistance claim of this variety 'a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.' Once an actual conflict and an adverse effect are shown, an accused need not show prejudice to receive relief.
63
849 F.2d at 1328 (citations omitted).
64
Although the defendant raised an objection to the possible conflict just prior to trial, the court held a hearing on the issue and issued an order declining to require counsel to withdraw. The trial court "was not convinced that an actual conflict [arose] from Fox's posture" in the case, and, in its denial of appellants' motion for judgement of acquittal or for a new trial, the court observed that "the evidence at trial indicated that the interests of Keaton and Suntar were parallel, as Keaton was the part-owner of Suntar."Although Keaton was also named individually as an unindicted co-conspirator, we fail to find any evidence in the record that contradicts the trial court's finding. Moreover, appellants have never done more than allege a possible conflict of interest; they have made no attempt to establish or demonstrate that an actual conflict of interest adversely affected Fox's performance at trial. Accordingly, we cannot say that the trial court's findings are clearly erroneous and we affirm the trial court's conclusion that no actual conflict existed for Suntar's attorney which violated appellants' right to effective counsel.
65
Appellants' convictions are AFFIRMED.
1
"[A]n agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition ... is usually termed a 'horizontal' restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed 'vertical' restraints." United States v. Topco Assocs., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972)
2
This court will not "impute to a jury the inability to understand correctly the totality of the trial court's instructions, even in a complicated case, nor will [we] impute nonfeasance, in the form of disregard of the trial court's instructions, to a jury." Rasmussen Drilling Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978)
3
Two other circuits have reached this issue and come to the same conclusion as did the trial court. See United States v. Andrews, 850 F.2d 1557, 1561 (11th Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 842, 102 L.Ed.2d 974 (1989); United States v. Valles-Valencia, 823 F.2d 381, 383 (9th Cir.), modifying, 811 F.2d 1232 (1987). The Eleventh Circuit chose to distinguish Hartzel rather than assume Powell had overruled it--an approach sharply disputed by the decision's dissenters. The Ninth Circuit failed to mention Hartzel
4
Fed.R.Evid. 404(b) provides:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
5
Specifically, the evidence showed that (1) Suntar and Ronan reached an agreement in early 1985 to allocate Cowan Homes to Ronan's Roofing; (2) Suntar, through Pratt, reached customer allocation agreements with four other roofers, Larry Vaught Roofing, Russell Nugent Roofing, Keaton Bros. Roofing & Siding, Inc., and Cedarside Roofing at various times between 1982 and mid-1985; and (3) in the spring of 1986, Pratt met with another roofer, Orin Jackson, to discuss entering into a customer allocation agreement | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/461032/ | 777 F.2d 272
Frederick KIRKPATRICK, etc., Petitioner-Appellant,v.Frank BLACKBURN, Warden, Louisiana State Penitentiary, etal., Respondents- Appellees.
No. 85-3029.
United States Court of Appeals,Fifth Circuit.
Nov. 26, 1985.Opinion on Denial of Rehearing and Rehearing En Banc Jan. 16, 1986.
Patrick L. Durusau, Jena, La., Robert L. McGlasson, Atlanta, Ga., for petitioner-appellant.
Joseph E. Kopsa, Asst. Atty. Gen., Baton Rouge, La., Harry H. Howard, Asst. Atty. Gen., New Orleans, La., Margaret A. Coon, Asst. Dist. Atty., Covington, La., for respondents-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, RUBIN and RANDALL, Circuit Judges.
PER CURIAM.
1
A prisoner condemned to death for first degree murder committed in the course of a robbery and under conditions that the jury found to be especially heinous seeks habeas corpus relief. The district court, 597 F.Supp. 1562, denied the writ but issued a stay of execution and a certificate of probable cause. Having reviewed the record of the trial, the state post-conviction proceedings, and the federal evidentiary hearing with care, we conclude that, as to all issues on which the district court made findings of fact, the findings are supported by the record. Applying settled legal principles to those facts, we affirm. The district court, however, made no findings on the claim that trial counsel had been ineffective because he failed to seek suppression of evidence used at the trial, and we, therefore, remand for further consideration of this issue.
I.
2
Frederick Kirkpatrick was convicted of first degree murder by a twelve-person Louisiana jury on the following evidence, as summarized by the Louisiana Supreme Court1 and as reflected in the record. Kirkpatrick and Charles Faulkner, both of whom lived in Mississippi, came to the home of Steve Radoste in the Pearl River area of St. Tammany Parish, on the evening of January 27, 1982, perhaps by hitch-hiking a ride with Radoste. During the night, Radoste was killed, his home was robbed, and his truck was stolen. The next day, his battered, nude body was found lying on the floor with a gunshot wound in the right side of his head and a butcher knife stuck to the hilt into his chest. He had another grave knife wound to his abdomen and other wounds to his head. Two blood-stained pillows, each with a bullet hole, lay next to the right side of the victim's head. The coroner found that the gunshot wound caused death, but that the stab wounds would themselves have been fatal within a few hours as a result of slow internal bleeding.
3
On the afternoon of the same day, the Meridian, Mississippi, Police Department found a burned pickup truck south of the city. Acting on information, they obtained a warrant to arrest Kirkpatrick for arson. The police went to the home of Caroline Wright, where Kirkpatrick was then living, to execute the warrant. When they entered the house to make the arrest, the officers observed two television sets, a wine rack, some leather jackets, and other items.
4
After being advised of his Miranda rights, Kirkpatrick made a statement in which he admitted that he and Charles Faulkner had driven the pickup truck, whose owner had not then been identified, to a remote area near Meridian and that he had watched while the truck was burned. He also stated that Faulkner had a .22 caliber Derringer.
5
The next day the Meridian police department received a teletype from the St. Tammany Parish, Louisiana, sheriff's office that identified the truck as Radoste's. Deputies from St. Tammany Parish went to Meridian to examine the truck. After the deputies identified the truck, the Meridian police obtained a warrant to search the house at which Kirkpatrick was living. They there found and seized the property described above, which was later identified as belonging to Radoste. Kirkpatrick was then arrested for Radoste's murder.
6
While the investigation was being made, Faulkner's cousin delivered to the police a .22 caliber Derringer which he said had been given to him by Faulkner. Tests showed that the bullet removed from Radoste's head had been fired from this weapon. Faulkner was later apprehended and charged.
7
Kirkpatrick was thereafter tried for first degree murder in Louisiana. During the trial, Kirkpatrick took the stand in his own defense and testified that, to the extent he was involved at all in the assault on Radoste, he was acting in self-defense to fend off Radoste's homosexual advances. He testified that Radoste held Faulkner and him at gunpoint, and that he got into a struggle with Radoste to protect his friend and himself. He said he hit Radoste over the head with a glass dish cover, then stabbed the victim twice with a knife that the victim had earlier used in serving his two guests a meal. "When the man fell, the pistol went off," he said. Other witnesses testified that Kirkpatrick had given varying accounts of the events of the night, including telling them at various times that Faulkner had shot Radoste and that Kirkpatrick had "killed" Radoste (without specifying how).
8
At 7:30 p.m. on Thursday night, following a four-day trial, the jury returned a verdict finding Kirkpatrick guilty of first degree murder. The state judge then proposed to start the sentencing phase of the trial immediately. Just before that proceeding began, Kirkpatrick's lawyer, Thomas Ford, moved for an overnight recess because, he said, five of the six witnesses he wished to call were not present. Ford named the absent persons as Kirkpatrick's foster parents, Annabelle and Arthur Jones; two children of his common-law wife, Billy and Robert Kirkpatrick; and his brother, Eddie Kirkpatrick. All six had been subpoenaed to be present at the start of the trial on Monday. None had arrived.
9
The court said, "If these witnesses didn't show up for Monday morning at nine-thirty o'clock, a.m., this was the time for us to deal with this particular problem, not at seven forty-five on Thursday evening." Kirkpatrick's lawyer explained that he had not required the witnesses to be present at the beginning of the trial because neither he nor Kirkpatrick could pay their expenses for travel, lodging, and food. "Kirkpatrick talked to them last night and was given all verbal assurances that they would, in fact, be here today. And at this point, they are not here." He stated that he could not assure the court that they would be present the next day if the trial were recessed, saying, "I cannot assure the court of anything. I can merely try." The state trial judge denied a recess and the sentencing phase of the trial began.
10
The one witness called to testify for Kirkpatrick was Caroline Wright. Ms. Wright said that she and Kirkpatrick had lived together two years and that he had treated her and her children "very good." She testified at some length about his devotion to her children and their love for him. The jury retired to deliberate and, at 10:30 p.m., returned with a recommendation that Kirkpatrick be sentenced to death. The jury found, as the Louisiana statute requires,2 two aggravating circumstances: the offender was engaged in the commission of an armed or simple robbery at the time of the murder and the offense was committed in an especially heinous, atrocious, or cruel manner.3
11
Kirkpatrick appealed his conviction and it was affirmed.4 He then sought a writ of habeas corpus in state court, which held an evidentiary hearing on some of the issues. When relief was denied, Kirkpatrick applied for a writ to the federal district court, which, likewise, denied relief. Although the state did not respond and filed no pleadings, the federal district court conscientiously reviewed each of the twenty-four contentions raised by Kirkpatrick's counsel and rendered a 48-page opinion.
12
Kirkpatrick raises several issues on this appeal. First, Kirkpatrick contends that the trial court's refusal to grant a recess before the sentencing phase of the trial deprived him of a fair trial and reliable sentencing determination, rights granted him by the fourteenth and eighth amendments. Second, Kirkpatrick alleges that the prosecutor's repeated use of "highly prejudicial, irrelevant, arbitrary and non-record assertions" denied Kirkpatrick due process of law because it made the trial fundamentally unfair. Third, Kirkpatrick argues that his trial counsel was ineffective, denying him the fourteenth amendment-sixth amendment right to effective assistance of counsel. Last, Kirkpatrick submits that the trial court's jury instruction denied him due process of law because it did not require the jury to find before imposing a death sentence that Kirkpatrick killed, intended to kill, or attempted to kill the victim without legal justification as is required in capital cases. We discuss these issues in turn.
II.
13
Because the state court record was inadequate for determining whether the trial court's refusal to grant a continuance was an abuse of discretion and a denial of due process, the federal district judge held an evidentiary hearing on this issue. The only evidence presented was the testimony of Kirkpatrick's foster parents, Anabelle and Arthur Jones, and the state court postconviction testimony of his aunt and his twin brother. Ms. Jones testified that Kirkpatrick's trial counsel had communicated with her and her husband and told them to be ready to come to the trial when he telephoned them. If someone had telephoned them and had told them when to come, they would have come to testify with only one day's notice for they lived in Mississippi, only four hours drive from Covington, Louisiana, where the trial was held. Ms. Jones would have testified that Kirkpatrick's parents had been very poor, and that he had not received adequate food, clothing, or education. Kirkpatrick's father had died when Kirkpatrick was nine years old. He and his twin brother had lived with the Joneses from the time the boys were twelve years old, when their mother had died, until they were nineteen. Ms. Jones loved Kirkpatrick. Had she testified at the trial, she would have asked the jury to spare his life.
14
The district judge observed, however, that Ms. Jones' testimony "evidenced her difficulty in recalling basic facts about her relationship with Kirkpatrick." She remembered that he had been in trouble with the police three or four times, at least once for stealing, but she was uncertain whether he had ever been arrested. He had visited her about six times since he had left her home, but she was not able to say when the last visit was. She had not visited him after his arrest and had not written to him, nor had he telephoned her or written to her. She had not visited him since his conviction for murder. The court summarized, "[o]n the whole, I did not find her to be a very favorable witness for Kirkpatrick."
15
Much of Mr. Jones' testimony was to the same effect, but his testimony differed from that of Ms. Jones in some respects that were noted by the district judge. The district judge commented, "Mr. Jones testified with far more confidence, but he contradicted his wife on at least two occasions. He testified that Kirkpatrick's troubles with the police involved only traffic violations and that Kirkpatrick had returned to visit the Jones only once after his departure from their home." Mr. Jones had known Kirkpatrick was in the Mississippi State Prison at Parchman for a year and a half before January 1982, but he had not visited Kirkpatrick. Kirkpatrick had been in trouble before but for "just boylike things. I mean he got in jail a couple of times down there. The cops picked him up, give him a speeding ticket, or [sic] not wearing a helmet, things like that." Also he had stolen a van.
16
The court concluded that, had the state trial judge granted an overnight continuance, the Joneses would have been present at Kirkpatrick's trial the next day to offer their testimony. Their testimony, the district judge noted, was "potentially favorable to Kirkpatrick." The state offered no explanation why the state trial judge had found it so urgently necessary to begin the sentencing phase of the trial immediately. On the other hand, the trial of Kirkpatrick's co-defendant, Faulkner, set to begin on the same day as Kirkpatrick's, was continued for two months. "To paraphrase the Supreme Court," the federal district court wrote, "such 'myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend [by presenting witnesses] an empty formality.' "5
17
The federal district court correctly noted that the grant or denial of a continuance rests in the sound discretion of the trial judge and his action may be successfully questioned only by showing an abuse of the wide decisional latitude that he is given. Relying upon decisions in which an abuse of discretion was found,6 the federal district court concluded that the state trial court had transgressed even these broad limits.
18
The court then considered whether this trial error violated Kirkpatrick's constitutional rights. In doing so it applied the correct standard, for the writ of habeas corpus is not granted to correct every error committed by a trial court. It is allowed only for the deprivation of a constitutional right.7 The defendant asserts, however, that the trial court's denial of a continuance violated his constitutional right to due process of law. Unless some other constitutional right incorporated into the fourteenth amendment by the due process clause is abridged, due process is violated only if the court's action denies a defendant a fundamentally fair trial.8 The test applied to determine whether a trial error makes a trial fundamentally unfair is whether there is a reasonable probability that the verdict might have been different had the trial been properly conducted.9
19
Kirkpatrick argues that the federal district court applied the wrong analysis after it concluded that the state trial court's denial of a continuance amounted to an abuse of discretion. He contends that at that point the burden of proof should have shifted to the state to prove beyond reasonable probability that the error complained of did not contribute to his conviction, quoting the test applied by the Supreme Court in Chapman v. California.10 This contention is based on an improper analysis: Kirkpatrick fails to distinguish between the standards applicable to the direct appeal of a federal conviction and those applied to applications for a writ of habeas corpus.
20
To obtain a reversal on direct appeal, a defendant need not show that the denial of a continuance denied him due process; he need show only that the denial was an abuse of discretion. In these cases, an abuse of discretion is defined as a trial error that "materially prejudice[s] the defendant."11 Courts also describe this inquiry in other words with the same effect, whether the trial court's denial of a continuance prejudiced the defendant's "substantial rights," tracking the language of Federal Rule of Criminal Procedure 52(a) which provides that any error that "does not affect substantial rights shall be disregarded."12
21
An applicant for habeas corpus, on the other hand, must show more than prejudice to his substantial rights, because the habeas writ issues only to correct errors of constitutional magnitude.13 The petitioner must, therefore, establish that the trial error was not merely an abuse of discretion, but was so grave as to amount to a denial of his constitutional right to substantive due process:14 that is, that the error made the trial fundamentally unfair.15 If the state court is found to have abridged the petitioner's constitutional rights, the more demanding review is then exacted,16 and, as Chapman holds, the burden shifts to the prosecution to show that the error was harmless beyond reasonable doubt.17
22
The tests applied in direct appeals and in habeas cases employ the same words but they differ in two significant respects: (1) the amount of proof required for reversal, and (2) which party shoulders the burden of proof. On direct appeal, it is less difficult for a defendant to show that a trial error prejudiced his substantial rights than it is to show, in a habeas proceeding, that the error abridged his constitutional rights by rendering his trial fundamentally unfair. If, however, constitutional error is shown, the prosecution has the burden of showing that the error was harmless beyond reasonable doubt, while in direct appeals the burden of showing not only that error was made but that he suffered substantial prejudice thereby is on the defendant.
23
Kirkpatrick, therefore, must establish that the trial error was an abuse of discretion amounting to a denial of his constitutional right to substantive due process--that the error made his trial fundamentally unfair. Only at that point does the Chapman harmless error test apply. Although the Chapman test is applied to some violations of generic substantive due process,18 it is by its nature incapable of application to a due process violation at the sentencing stage. Because the petitioner must show the harmfulness of the error to establish the constitutional violation, subsequent application of a second harmless-error test would be superfluous. If Kirkpatrick successfully demonstrates that he was denied due process because the trial court's failure to grant a continuance was an abuse of discretion so egregious as to render his sentencing determination fundamentally unfair, the error obviously could not then be shown to be harmless. Thus, our initial, and only, inquiry is whether the refusal denied Kirkpatrick a fundamentally fair sentencing determination.
24
The district court concluded that the trial was not fundamentally unfair because there was no reasonable probability that the Jones' testimony would have changed the verdict. They were, he concluded, "bad witnesses for Kirkpatrick." They had had little communication with him since 1976, when he left their home. They had not visited him while he was serving sentences in Mississippi and Louisiana penitentiaries. Their testimony was inconsistent, and they appeared to lack concern about his future.
25
While Kirkpatrick did not, at the federal district court evidentiary hearing, produce the other witnesses who, he alleges, would have testified in his behalf at the sentencing phase of the trial in such a way that the verdict might have been different, he did introduce the transcript of the testimony given by his twin brother and his aunt at the state habeas corpus hearing. His twin brother, however, would not have attended Kirkpatrick's trial even if the court had granted a continuance because at that time he had been enlarged from federal custody on a bond conditioned on his not leaving Mississippi and he had been unable to get a waiver of this condition. Kirkpatrick's aunt would have testified to the deplorable conditions under which the Kirkpatrick family lived before the twins went to live with the Jones family.
26
The sentencing phase of a capital trial is literally vital. The state must give the defendant an opportunity, however vile the crime of which he has just been convicted, to demonstrate his human qualities and any circumstance that might mitigate his culpability or incline the jury to lenity.19 Whether the denial of the right to present such evidence deprives a defendant of a constitutional right turns on the availability of such testimony. Given the district court's analysis of the Jones' testimony, which is supported by the record, the unavailability of his brother, and the limited scope of his aunt's testimony, we are unable to say that Kirkpatrick has proved that there was a reasonable probability that the granting of a continuance would have permitted him to adduce evidence that would have altered the verdict and hence he has failed to establish that his sentencing hearing was fundamentally unfair.
III.
27
Kirkpatrick contends that in the closing arguments made by the prosecutor at both the guilt-innocence and sentencing phases of the trial, the prosecutor made irrelevant and inflammatory statements calculated to appeal to the jury's prejudice. Specifically, Kirkpatrick complains that the prosecutor, in arguing for a verdict of guilty, referred falsely to past lives Kirkpatrick allegedly took and wrongly referred to the personal character of the victim. Kirkpatrick also complains that later, in arguing for capital punishment, the district attorney improperly discussed the law of the defense of others, improperly exhorted the jury to fight crime by sentencing Kirkpatrick to death, and prejudicially compared the rights of the defendant to the putative rights of the victim. Kirkpatrick argues that improper jury argument by the prosecutor so infected the trial with unfairness as to render his conviction a denial of due process.
28
In habeas corpus proceedings, federal appellate courts do not employ the broad supervisory power that they exercise over the federal trial courts.20 Accordingly, federal courts may not, in a habeas corpus proceeding, impose the same standards upon state prosecutors that they apply to federal prosecutors in cases on direct appeal.21 The prosecutor's remarks do not present a claim of constitutional significance unless they were so prejudicial that Kirkpatrick's state court trial was rendered fundamentally unfair within the meaning of the fourteenth amendment.22 There is such unfairness only if the prosecutor's remarks evince "either persistent and pronounced misconduct or ... the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred."23 When thus attacked, prosecutorial comments are not considered in isolation, but are evaluated in the context of the entire trial as a whole including the prosecutor's entire closing argument.24
A. STATEMENTS DURING GUILT PHASE
29
Kirkpatrick singles out as an egregious example of the prosecutor's misconduct a statement the prosecutor allegedly made in arguing for a conviction of guilt. The transcript of the prosecutor's closing argument at the guilt phase of the trial contains the following paragraph:
30
What you have to do, if you want to acquit, if you want to acquit Freddie Kirkpatrick, you've got to say 'I believe everything he said today.' And even though some of it doesn't make sense and even though some of it is impossible, give him the benefit and let him go. And forget about Mr. Radosti [sic ] and forget about all of the other witnesses and forget about the past lives that Kirkpatrick has took.25
31
The state contends that the prosecutor did not refer to "past lives that Kirkpatrick has took" but to "past lies that Kirkpatrick has told" and that the transcript is in error. No proceedings to correct the record have been taken, however, as Louisiana decisional law apparently permits.26 In federal proceedings, the transcript is "deemed prima facie a correct statement of the testimony taken and proceedings had,"27 but the record may be corrected upon proof that the transcript is incorrect.28 Such a correction should presumably be made by the trial judge.29
32
The issue of the correctness of the transcript was not raised during Kirkpatrick's appeal for the contention was not then made that the prosecutor's remark was inflammatory. Hence, no motion to correct the state trial transcript was made. While Louisiana has a procedure for correction of transcript error while an appeal is pending, its Code of Criminal Procedure contains no provision for such a correction after a judgment has become final, and Louisiana courts have never considered whether the record might then be changed.
33
The transcript, however, does not become gospel once the conviction is final. If it is in error, it should be correctible by a procedure analogous to that prescribed for earlier convictions, that is, by a motion to correct, addressed to the trial court. Here no motion was filed, but the issue of the correctness of the transcript was fully considered during the state habeas corpus hearing by the judge who had conducted the state trial. Because both parties were fully aware of the issue and evidence was adduced, the state court post-conviction proceedings appear to us to be sufficiently reliable to warrant our reliance on them.
34
At the state post-conviction hearing, the defense attorney testified that he did not remember that the words quoted in the transcript had been used. The state judge in his opinion said he "did not hear such a statement as this." He continued:
35
Had this statement been made, I am convinced that I would have come from my chair, [defense counsel] from his, and [co-counsel for defendant] present would have had a conniption fit.
36
[The prosecuting attorney] is too experienced, too trained, too skilled and too intelligent to have made such a statement. This statement alone would have resulted in a mistrial. Further, [his] English albeit only some better than mine is considerably better than that as noted by the reporter.
37
This Court is convinced that instead of saying "Forget about the past lives that Kirkpatrick has took," what [the prosecuting attorney] said was "Forget about the past lies," l-i-e-s, "that Kirkpatrick has told."
38
This finding is supported by the context in which the words were used and the earlier part of the prosecutor's argument in which he emphasized a number of alleged lies told by Kirkpatrick. While comment on other homicides not in evidence would indeed have been grossly improper, the finding that such a statement was not in fact uttered, made by the judge who had conducted the trial, should be considered a correction of the transcript. Thus corrected, the statement was not improper.
39
Kirkpatrick also complains that the state prosecutor improperly referred to the character of the victim, Mr. Radoste, during his argument in the guilt stage of the trial. There were two references. The following was the most severe:
40
I prefer to think that here's a man who apparently had been responsible all of his life. Here's a man that apparently has never hurt anybody. Here's a man that helped raise sisters. Here's a man that works, that takes care of his property, that apparently is concerned about other people, apparently a gentleman, apparently a kind man.
41
These comments were made by the prosecutor in an effort to refute Kirkpatrick's contention that he acted to fend off Radoste's homosexual advances, supposedly made at gunpoint. Considering the nature of the defense, we do not think that the prosecutor's remarks were intended to evoke the jury's sympathy. Nor were they excessive. They were, instead, a measured response to an asserted line of defense. While we recognize that references to the victim's character may be improper,30 we do not find the argument made here to be unfair.
B. SENTENCING PHASE
42
In his closing argument at the sentencing phase of the trial, the prosecutor argued:
43
Under Louisiana law, if any one of us would have been fortunate enough, or unfortunate enough as it might have turned out, to have walked up on that scene just before Mr. Radoste died, we would have had every legal right in the world to blow those people away, to kill them both on the spot.... But now, you see, they want to make you feel guilty when, in accordance with the legal process, you're called upon to decide what punishment fits the crime. You have no reason to feel guilty.
44
Kirkpatrick argues that the prosecutor thus impermissibly focused the jury's attention on the law of defense of others as the basis for giving the death penalty, instead of the aggravating and mitigating circumstances in the case, which is the constitutionally required basis.
45
In addition the prosecutor ended his argument with an invocation of duty to the victims of crime:
46
Let your mind think about your obligation to other Mr. Radoste's, to other victims of crime. Let your mind think about how you cope with the Freddie Kirkpatrick's of the world, because you have to give that some hard thought. You have to give it hard thought. And we have a right to be protected.
47
This theme was repeated in slightly different expression:
48
And it always sort of bothers me in a way and it always comes to my mind in these situations that we're--you know, poor old Mr. Radoste didn't have nobody there to argue for him. He didn't have a trial. He didn't have twelve citizens called in to sit in that living room and decide whether Freddie and Charles could do what they wanted to with him. He didn't have a lawyer, you know. He didn't have an appeal. Freddie Kirkpatrick did it all. And yet, our system is, we're in here worrying about and arguing over Freddie Kirkpatrick.
49
The federal district court did not discuss the propriety of these statements. Instead, it said that the record did "not demonstrate either persistent or pronounced misconduct. Moreover, the evidence supporting Kirkpatrick's conviction is not insubstantial. The record demonstrates that Kirkpatrick received a fair and constitutional trial; there is no doubt of his guilt.... In light of the evidence against him, the statements complained of do not rise to the level of a denial of a fundamentally fair trial."31
50
This court has held comments of each type not so inflammatory as to constitute denial of a fair trial. We first consider the statements about the defense of others. In Willie v. Maggio,32 an application for federal habeas relief, the Fifth Circuit considered an identical prosecutorial argument. The court found this argument improper because it "misstates the law regarding Louisiana's scheme of capital punishment, which does not allow the jury to impose the death penalty simply because lethal force could have been used in defense of the victim."33 However, the court found that the prosecutor's remarks did not render the sentencing part of the trial fundamentally unfair. It viewed the arguments and evidence as a whole and concluded that the jury's recommendation of death was not influenced by the improper comments: the jury had found two aggravating factors34 and there was little mitigating evidence.
51
While the prosecutor's argument was improper because it distracted the jury from its proper concern--the aggravating and mitigating factors mandated by Louisiana's capital punishment scheme--it was not so prejudicial as to render the trial fundamentally unfair. As in Willie, the jury found two aggravating factors at the sentencing phase of Kirkpatrick's trial.35 As the federal district court observed, the evidence of Kirkpatrick's guilt was far from insubstantial.
52
Kirkpatrick next complains of the prosecutor's invocation of the jury's duty. He argues that this remark could serve only to arouse the passions of the jurors and persuade them to vote for the death penalty for improper reasons. However, the prosecutor's remarks, akin to a "war on crime" argument, were less egregious than similar arguments that we have found proper. In United States v. Caballero,36 the court held the prosecutor's closing argument, in which he requested the jury to "have the courage to go out there and find these Defendants guilty," to be a permissible plea for law enforcement. In the recent Eleventh Circuit decision, Brooks v. Kemp,37 the majority found the following argument proper as an argument for deterrence:
53
You can bring back the death penalty and you can tell William Brooks, and you can tell every other criminal like him, that if you come to Columbus and Muskogee County, and you commit a crime, and it's one of those crimes that's punishable by death, and if the aggravating circumstances are there, you're going to get the electric chair....
54
The prosecutor's comments at Kirkpatrick's trial are no more egregious.
55
The prosecutor also impliedly condemned Kirkpatrick's invocation of the legal process. Kirkpatrick contends that this argument infringed on his right to counsel, his right to trial by jury, and his right to an automatic direct appeal from a sentence of death.
56
In the recent case of Caldwell v. Mississippi,38 the Supreme Court considered a prosecutor's argument at the sentencing stage of a bifurcated capital case that led the jury to believe that responsibility for determining the appropriateness of the death sentence lay elsewhere. The Court held that this argument rendered the sentencing hearing fundamentally unfair. In Caldwell, however, the prosecutor argued to the jury that, if it were to return a sentence of death, the decision would automatically be reviewed by the Supreme Court. This was a calculated response by the prosecutor to the closing argument of defense counsel; it was an effort to "minimize the jury's sense of importance of its role."39 This case is not controlled by Caldwell. In arguing that Kirkpatrick be sentenced to death, the state prosecutor's comments were not designed to shift the burden of decision from the jury.
57
We recognize that it is improper for a prosecutor "to urge that a criminal defendant's exercise of constitutional rights is a ground for discrediting his defense," and to imply "that the system coddles criminals by providing them with more procedural protections than their victims."40 However, we view the prosecutor's remarks in this case as an attempt to illustrate for the jury the defendant's total disregard of the rights of the victim, rather than an attempt to discredit Kirkpatrick for his decision to put the state to its proof. Even if the argument was inappropriate, it did not make the sentencing hearing unfair. Finally, when viewed as a whole, each of the closing arguments was not improper.
IV.
58
Kirkpatrick contends his counsel were ineffective. He alleges numerous grounds in support of his contention, arguing that competent counsel would have taken another course. These include their failure to (1) seek suppression of the evidence the police obtained in their search of Kirkpatrick's residence in Mississippi on the ground that the warrants for his arrest for arson, and later for murder, were facially invalid; (2) object to allegedly improper prosecutorial statements; (3) investigate and interview witnesses prior to trial; (4) move to suppress oral inculpatory statements; (5) conduct adequate voir dire examination of the talesmen, including failure to rehabilitate those talesmen excluded for cause because of their attitude toward the death penalty; (6) prepare Kirkpatrick before he testified at trial; (7) object to improper jury instructions; and (8) file a meaningful brief on direct appeal to the Louisiana Supreme Court. Many of these form the basis of other independent claims for relief. Kirkpatrick also contends that the workload of Thomas Ford, the principal defense counsel, as a public defender was so excessive as to render his assistance per se ineffective.
59
While an evidentiary hearing was held on these contentions in the state post-conviction proceeding, the federal district court correctly concluded that the state judge had failed to make any express findings of historical fact and that it was obliged to make an independent evaluation of the record. The district court then said, "Because I have read and considered the entire record of Kirkpatrick's trial, it is not necessary for me to review Kirkpatrick's allegations of ineffective assistance individually."41 The federal district judge then concluded, "The evidence supporting Kirkpatrick's conviction and sentence is substantial."
60
In Strickland v. Washington42 the Supreme Court announced the standard for determining when counsel in a state criminal trial has been so ineffective as to warrant federal relief. To succeed on a claim of ineffective assistance of counsel a defendant must demonstrate both that his counsel's performance was deficient and that the error so prejudiced his defense as to deny him a fair trial.43 If proof of one element is lacking, the court need not examine the other.44
61
To satisfy the first prong of Strickland 's test, a defendant must demonstrate that his counsel made errors so serious that he did not function as the "effective counsel" guaranteed by the sixth amendment.45 "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms."46 There is a strong presumption that defense counsel rendered effective assistance and that his conduct fell within the range of reasonable professional assistance,47 for in any given case there are countless ways to provide effective assistance.48 The court must determine whether, in the light of all the circumstances, the identified acts or omissions are outside the wide range of professionally competent assistance.49 The court must recognize, however, that the "reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."50
62
Even if the defendant successfully shows an error or deficient performance by counsel, he also must show that counsel's error was prejudicial to the defense. The standard by which prejudice is proved is high; the defendant has the burden of showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."51
63
The district court's conclusory review of the record pretermits the contention that we view as serious: whether the evidence obtained in the search of Kirkpatrick's residence, which established his complicity at least in robbery, would have been admitted had counsel moved to suppress it, and, if so, the effect of exclusion of that evidence. While the district court received no assistance from the state by brief or pleading, it carefully reviewed each of the twenty-four alleged constitutional violations raised by Kirkpatrick. Nevertheless, we do not think it appropriate for us to make the factual determination whether Kirkpatrick's counsel was deficient or whether Kirkpatrick was thereby prejudiced. Accordingly, we remand for these determinations, to be made conformably with Washington v. Strickland. The district court may hold an evidentiary hearing or, if the record is sufficient, may make findings solely on the evidence already adduced.
V.
64
In Enmund v. Florida,52 the Supreme Court held that the eighth amendment proscribes a death sentence for accomplice liability in felony murders, stating that capital punishment may be imposed only on one who himself kills, attempts to kill, or intends that a killing take place or that lethal force will be employed. We have interpreted Enmund to require proof that "the defendant either participated directly in the killing or personally had an intent to commit murder."53 Thus, we have held that a defendant may not be sentenced to death for participation in a felony in the course of which murder was committed by another felon.54 Before a state may impose the uniquely severe and irrevocable sentence of death, it must "focus on the personal intent and culpability of the defendant himself, and not merely that of an accomplice."55
65
The Louisiana trial court charged the jury on the law of principals as follows:
66
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the crime, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals and are guilty of the crime charged.
67
The court was clearly entitled to give this charge with respect to the offenses of armed and simple robbery56--the enumerated felonies that the state argued Kirkpatrick committed during his murder of Radoste, thus supporting its allegation of first degree murder.57 The court did not, however, permit the jury to find Kirkpatrick guilty of first degree murder solely because of his participation in the robbery or any vicarious guilt. It then properly charged the jury on the requirements for finding Kirkpatrick guilty of first degree murder:
68
In order to convict the defendant of first degree murder, you must find, one, that the defendant killed or was a principal in the killing of Steven Radoste; and, two, that the defendant acted with a specific intent to kill or inflict great bodily harm; and, three, that the defendant was engaged in or was a principal in the commission or attempted commission of armed robbery or simple robbery. (Emphasis added.)
69
Kirkpatrick contends that the jury instructions did not meet the Enmund test. The error charged is that the jury might have found Kirkpatrick guilty even if he intended only to inflict great bodily harm on Radoste. Who killed Radoste and whether Kirkpatrick had the intention of killing him were contested issues. As the Louisiana Supreme Court found "there [was] no conclusive evidence as to who actually shot Mr. Radoste."58 Kirkpatrick testified that he did, however, strike Radoste over the head and then stab him twice.
70
Similar issues have been raised in three cases that we have considered. Reddix v. Thigpen59 involved the habeas application of a prisoner convicted under Mississippi's capital murder statute. The defendant, Reddix, had attracted the attention of the victim while an accomplice "slipped up behind him and, as Reddix watched, brutally hit him over the head three or four times with a Stilson wrench, crushing his skull." The two had then robbed the victim's store. The court charged the jury that it might find Reddix guilty of capital murder if it found that the killing was "done with any design to effect death by any person engaged in the crime of robbery." We upheld Reddix's conviction of capital murder, reasoning that Enmund did not affect the state's definition of any substantive offense, and thus Mississippi was free to convict a defendant of capital murder if a murder was committed by any co-defendant during the course of an enumerated felony.60 We concluded, however, that Mississippi could not sentence such a defendant to death absent the specific intent from Enmund. Because "[a] reasonable juror carefully heeding [the court's] instructions fairly could conclude that [the accomplice's] intent to commit murder may be imputed to Reddix,"61 we, therefore, reversed Reddix's death sentence. In Bullock v. Lucas,62 we followed Reddix.
71
In Clark v. Louisiana State Penitentiary,63 a Louisiana prisoner sought a writ of habeas corpus alleging that he had been sentenced to death in violation of Enmund. Louisiana's first degree murder statute requires the state to prove the defendant's specific intent to kill or inflict great bodily injury.64 Because the trial court's instructions permitted the jury to "attribute the murderous act of one conspirator to the other,"65 we reversed Clark's conviction.
72
In none of these cases, therefore, did we consider whether the jury must be instructed, before it imposes the death sentence, that the intentional use of lethal force is essential or that the deliberate infliction of great bodily harm that results in death is insufficient for the imposition of the supreme penalty.
73
Neither Enmund nor our three decisions interpreting it makes the use of the words "lethal force" talismanic. Enmund 's teaching is that a person may not be sentenced to death for the death-dealing act of another unless he shares culpability for the homicide. The words "lethal force" as employed in Enmund make it clear, however, that the defendant will not be absolved if he contemplates "that lethal force will be employed by others."66 While the death penalty may not "be imposed for vicarious felony murder ...,"67 it may be imposed on one who knowingly participates in a course of action that contemplates the use of lethal force, even if one is not the triggerman. Imposition of the death penalty, Enmund instructs, depends "on the degree of [the defendant's] culpability--what [his] intentions, expectations, and actions were."68
74
When the defendant himself acts with the intention of inflicting great bodily harm and either killed the victim or was a principal in his killing and was engaged in or was a principal in the commission of robbery, he has acted with personal culpability. Indeed lethal force might be employed without the intention of inflicting great bodily harm, for example, by the use of a firearm to shoot at the victim without intending to cause his death or serious injury. When a defendant personally intends to inflict great bodily harm and succeeds in producing death, his personal involvement and individual culpability is sufficiently established that the capital sentence is not cruel and unusual.
75
Kirkpatrick testified that, after striking the victim over the head, he stabbed Radoste twice. The knife used in the assault was buried to the hilt in the victim's chest and the victim had severe abdominal wounds. Both wounds were potentially lethal. The gunshot was but the coup de grace and Kirkpatrick cannot be exonerated even if he did not pull the pistol trigger. We conclude not only that the charge was proper but that the evidence was sufficient to warrant conviction.
76
For these reasons, the judgment of the district court is AFFIRMED insofar as it denies relief on all of the grounds asserted except the alleged ineffectiveness of counsel, particularly in failing to seek suppression of the evidence seized in Mississippi. We VACATE the judgment denying relief and REMAND for further proceedings on that issue consistent with this opinion.
77
ALVIN B. RUBIN, Circuit Judge, dissenting in part.
78
I respectfully dissent from Part IIIB of the opinion, which holds that the prosecutor's remarks at the sentencing hearing did not deny Kirkpatrick due process when he was sentenced to death. Even if any one of the prosecutor's comments was not egregious, the cumulative effect of his arguments was sufficient to deprive the accused of the rational sentencing proceeding to which due process entitled him.
79
Because death is so fundamentally different from other kinds of punishment, the Constitution requires, by means of procedural safeguards and judicial vigilance, assurance that the imposition of death is not the product of arbitrariness or caprice.1 At a sentencing hearing in a capital case, the jury's role is to focus on the aggravating and mitigating circumstances of the crime. In reviewing such a proceeding, we inquire whether the jury was motivated by subjective rather than objective factors in reaching its decision. If the prosecutor's arguments make a rational assessment by the jury unlikely, or the prosecutor engages in "persistent or pronounced misconduct,"2 then the sentencing hearing is fundamentally unfair.
80
As the majority opinion notes, while each of the three arguments was improper, we have, in other cases, held each of them, standing alone, not so pernicious as to deny the accused due process. In this case the prosecutor sought to arouse the jury not once, but three times, and we should consider them in the context of the entire proceeding.3 The district attorney's argument covered only four pages of the transcript, and, therefore, likely took less than five minutes. In so short a span, he made three wrongful appeals to the jurors' emotions. While each by itself may not have awakened the jurors' prejudices, together they were capable of doing so, for they directed attention to matters irrelevant to the determination of the aggravating circumstances that alone warranted imposition of the death penalty.
81
"Louisiana's scheme of capital punishment ... does not allow the jury to impose the death penalty simply because lethal force could have been used in defense of the victim,"4 and we have, therefore, held a prosecutor's invocation of the right to defend others grossly improper,5 for it diverts the jurors from their proper concern--the aggravating and mitigating circumstances of the crime.6
82
The district attorney also exhorted the jury to join the fight on crime. Jurors are neither warriors nor policemen. They are judges, judges of the facts. It is their task to decide, not to ferret out evil. As Judge Frank Johnson has observed, an argument that enlists the jurors in a cause is notoriously inflammatory:
83
Not only does the characterization of the defendant as an anonymous member of the "criminal element" deprive him of the individualized consideration required prior to the imposition of the death penalty, but the suggestion that a "war" has been declared, and the attendant implication that jurors have a "duty" to fight it, removes from the jury the sense of responsibility for their decision that makes for an appropriately bounded exercise of their discretion.7
84
The prosecutor's third error, his implied condemnation of Kirkpatrick's invocation of the legal process is equally egregious.8 The popular media have inflamed public opinion with resentment, if not rage, at the protection accorded the accused while, to assert a popular view, there is less (or no) concern for the rights of the victim. To invoke prejudice against the accused because he is entitled to due process of law before being condemned is to strike at the fundamental due process protections accorded by the fourteenth amendment.
85
The cumulative effect of the district attorney's comments fatally infected the sentencing hearing and rendered it fundamentally unfair. They injected improper considerations into the jury's deliberations, undermining the jurors' ability to weigh dispassionately the aggravating and mitigating factors of the case and to reach a rational determination. Accordingly, I would remand for a proper sentencing hearing.
ON SUGGESTION FOR REHEARING EN BANC
OPINION
PER CURIAM:
86
Kirkpatrick's petition for rehearing argues that we applied an improper standard of review to the alleged constitutional errors in his state court trial. The application relies on three Supreme Court decisions, all referred to in our original opinion, but our decision is fully consistent with each of them.
87
Lockett v. Ohio1 held an Ohio death penalty statute unconstitutional because it allowed consideration of only three enumerated mitigating circumstances and thus did not permit the full individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments. Eddings v. Oklahoma2 vacated a death sentence imposed on a person who was sixteen years old at the time of the crime because the trial court had refused to consider evidence of the youth's troubled past when offered to mitigate the sentence. The Court held that all relevant mitigating evidence must be considered.
88
The trial court's refusal to grant a continuance was equivalent neither to the exclusion of mitigating evidence nor to the limitation of such evidence to specific factors. Mitigating evidence was in fact presented. If the denial of a continuance violated any of Kirkpatrick's constitutional rights, it was his right to due process, not his right to be free from cruel and inhuman punishment.
89
Similarly, Kirkpatrick seeks to persuade us to apply to our review of the prosecutor's remarks the standards exacted by the Eighth Amendment rather than the less stringent due process criteria, citing as authority Caldwell v. Mississippi.3 As we explained in our panel opinion. Caldwell held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.4 It does not follow that every other improper remark by a prosecutor at the sentencing phase of a capital case is per se so prejudicial as to be weighed against the same balance.
90
The concluding paragraph of the majority opinion in Caldwell states.
91
In this case, the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.5
92
In our opinion the "no effect" test applies to the state's effort to minimize the jury's sense of responsibility, not to every other improper argument.
93
Finally, we emphasize as we did in our original opinion that "when viewed as a whole, each of the closing arguments was not improper." It is on this final conclusion that we ultimately rest.
94
No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.
95
For these reasons the application for rehearing by the panel is DENIED. Judge Rubin adheres to his original dissent.
1
State v. Kirkpatrick, 443 So.2d 546 (La.1983)
2
La.Code Crim.P. art. 905.3 (West 1984) (Louisiana requires that a jury find at least one statutory aggravating circumstance before it recommends a sentence of death)
3
See La.Code Crim.P. art. 905.4 (West 1984) (list of aggravating circumstances)
4
State v. Kirkpatrick, 443 So.2d 546 (La.1983)
5
Citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, 930 (1964)
6
Hicks v. Wainwright, 633 F.2d 1146, 1150 (5th Cir.1981); United States v. Fessel, 531 F.2d 1275, 1281 (5th Cir.1976); Dickerson v. Alabama, 667 F.2d 1364, 1370 (11th Cir.), cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982)
7
28 U.S.C. Sec. 2254 (1982). See Mabry v. Johnson, 467 U.S. 504, ----, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437, 441 (1984)
8
United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481, 490 (1985); Lassiter v. Department of Social Serv. of Durham Cty., 452 U.S. 18, 24, 33, 101 S.Ct. 2153, 2158, 2163, 68 L.Ed.2d 640, 647, 653 (1981) (parental custody proceeding); Skillern v. Estelle, 720 F.2d 839, 850 (5th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984); Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981)
9
See Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 179 (1941) ("In order to declare a denial of [due process guaranteed by the fourteenth amendment] we must find that the absence of [fundamental] fairness fatally infected the trial....") (emphasis added); see also United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (A defendant's allegation that his fifth amendment or fourteenth amendment right to due process was violated by the prosecution's violation of Brady shows a constitutional violation only if the omitted evidence creates a "reasonable doubt" that the verdict of guilt was correct.)
10
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
11
United States v. Miller, 513 F.2d 791, 793 (5th Cir.1975). See also United States v. Walker, 621 F.2d 163, 168 (5th Cir.1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981). See generally United States v. Walker, 772 F.2d 1172 (5th Cir.1985)
12
United States v. Jones, 730 F.2d 593, 596 (10th Cir.1984) ("Even if this denial [of a continuance] constituted error, it would not have been reversible absent a showing that the error was prejudicial to the substantial rights of the defendant.")
13
See supra, note 5
14
Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, 930 (1964); Skillern v. Estelle, 720 F.2d 839, 850 (5th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984); Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981); Gandy v. Alabama, 569 F.2d 1318 (5th Cir.1978)
15
United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481, 490 (1985)
16
See "Fourteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1983-1984," 73 Geo.L.J. 249, 774 (1984); 3A Wright, Federal Practice and Procedure: Criminal 2d Sec. 854 at 302, Sec. 855 at 335 (1980). See also United States v. Phillips, 664 F.2d 971, 1027 n. 84 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Castillo, 615 F.2d 878, 883-84 (9th Cir.1980)
17
United States v. Ackerman, 704 F.2d 1344, 1349-50 (5th Cir.1983)
18
See, e.g., Garland v. Maggio, 717 F.2d 199, 203 (5th Cir.1983) (Chapman harmless error test applied to jury instructions violative of Sandstrom )
19
See Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 989 (1978); Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). See also Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976)
20
Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 436 (1974)
21
Whittington v. Estelle, 704 F.2d 1418, 1422 (5th Cir.), cert. denied, 464 U.S. 983, 104 S.Ct. 428, 78 L.Ed.2d 361 (1983)
22
Whittington v. Estelle, 704 F.2d at 1421; Houston v. Estelle, 569 F.2d 372, 378 n. 8 (5th Cir.1978)
23
Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir.1982), rev'd on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983)
24
Cobb v. Wainwright, 609 F.2d 754, 755 n. 1 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980)
25
Emphasis added
26
See, e.g., State v. Domingue, 298 So.2d 723 (La.1974)
27
28 U.S.C. Sec. 753(b) (1982)
28
United States v. Smith, 433 F.2d 149 (5th Cir.1970); United States v. Carter, 347 F.2d 220 (2d Cir.), cert. denied, 382 U.S. 888, 86 S.Ct. 178, 15 L.Ed.2d 124 (1965)
29
United States v. Smith, 433 F.2d at 151; 8 Federal Procedure, L.Ed. Sec. 20:183, at 305 (1982)
30
Vela v. Estelle, 708 F.2d 954, 956 (5th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984)
31
Citing Higgins v. Wainwright, 424 F.2d 177, 178 (5th Cir.), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970)
32
737 F.2d 1372 (5th Cir.1984)
33
Id. at 1390
34
See La.Code Crim.P. art. 905.4 (West 1984)
35
See supra, text accompanying note 3
36
712 F.2d 126 (5th Cir.1983)
37
762 F.2d 1383 (11th Cir.1985)
38
--- U.S. ----, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)
39
Id. at ----, 105 S.Ct. at 2637, 86 L.Ed.2d at 236
40
Brooks v. Kemp, 762 F.2d 1383, 1411 (11th Cir.1985) (en banc). See also Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984)
41
The federal district judge cited Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir.1982), rev'd on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983)
42
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
43
Id. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 692
44
Id. at ----, 104 S.Ct. at 2069-70, 80 L.Ed.2d at 699; Willie v. Maggio, 737 F.2d 1372, 1392 (5th Cir.1984)
45
466 U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 692. See also McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773 n. 14 (1970) (the right to counsel is the right to effective assistance of counsel)
46
Strickland, 466 U.S. at ----, 104 S.Ct. at 2065, 80 L.Ed.2d at 694
47
Id. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695
48
Id
49
Id
50
Id
51
Id. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698
52
458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140, 1151 (1982)
53
Reddix v. Thigpen, 728 F.2d 705, 708 (5th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984)
54
Id
55
Reddix v. Thigpen, 728 F.2d at 708. See also Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984); Bullock v. Lucas, 743 F.2d 244, 247 (5th Cir.1984), cert. granted sub nom., Cabana v. Bullock, --- U.S. ----, 105 S.Ct. 2110, 85 L.Ed.2d 476 (1985)
56
La.Rev.Stat.Ann. Sec. 14:24 (West 1974). See also State v. Watson, 397 So.2d 1337, 1342 n. 10 (La.), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981)
57
See La.Rev.Stat.Ann. Sec. 14:30 (West Supp.1985)
58
State v. Kirkpatrick, 443 So.2d 546, 552 (La.1983)
59
728 F.2d 705, 707 (5th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984)
60
Id. at 708-09
61
Id. at 709
62
743 F.2d 244 (5th Cir.1984), cert. granted sub nom., Cabana v. Bullock, --- U.S. ----, 105 S.Ct. 2110, 85 L.Ed.2d 476 (1985)
63
694 F.2d 75 (5th Cir.1982)
64
La.Rev.Stat.Ann. Sec. 14:30 (West Supp.1985)
65
Clark, 694 F.2d at 76
66
Enmund, 458 U.S. at 799, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152
67
Id
68
Id. at 800, 102 S.Ct. at 3378, 73 L.Ed.2d at 1153
1
See, e.g., Zant v. Stevens, 456 U.S. 410, 413, 102 S.Ct. 1856, 1857, 72 L.Ed.2d 222, 225 (1982)
2
Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir.1982), rev'd on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983)
3
See Cobb v. Wainwright, 609 F.2d 754, 755 n. 1 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980) (instances of prosecutorial argument are not to be viewed in isolation)
4
Willie v. Maggio, 737 F.2d 1372, 1390 (5th Cir.1984)
5
Id
6
See majority opinion, supra, text following note 34
7
Brooks v. Kemp, 762 F.2d 1383, 1430 (11th Cir.1985) (Johnson, J., dissenting)
8
See, e.g., Bruno v. Rushen, 721 F.2d 1193 (9th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984)
1
438 U.S. 586. 98 S.Ct. 2953. 57 L.Ed.2d 973 (1978)
2
455 U.S. 104. 102 S.CT. 869. 71 L.Ed.2d 1 (1982)
3
105 S.Ct. 2633 (1985)
4
Id. at 2639
5
105 S.Ct. at 2645 (emphasis supplied) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1645073/ | 259 Minn. 563 (1961)
108 N.W. (2d) 10
STATE
v.
JOHN BRUCE MORRISSEY.
No. 38,246.
Supreme Court of Minnesota.
March 3, 1961.
John Bruce Morrissey, pro se, for appellant.
Walter F. Mondale, Attorney General, George M. Scott, County Attorney, and Theodore R. Rix, Assistant County Attorney, for respondent.
PER CURIAM.
Defendant was convicted of burglary on May 28, 1959, and was sentenced on June 4, 1959, to the custody of the Youth Conservation Commission *564 for an indeterminate term. On July 25, 1960, defendant applied to the clerk of district court for a transcript of his trial. On August 19, 1960, the district court denied the application on the grounds that there was no proceeding then pending before the supreme court and that the district court was therefore without authority to provide a transcript to defendant pursuant to the provisions of Minn. St. 611.07. On September 4, 1960, defendant filed a "Notice of Appeal" referring to an "order of judgment dated August 30, 1960." On February 1, 1961, the state filed a motion to dismiss the appeal which now brings the matter before this court.
Under Minnesota statutes a defendant may secure review of a criminal case by the supreme court by appeal or writ of error by filing a notice of appeal within 6 months after the date of judgment or after the date of the decision of a motion denying a new trial. § 632.01. If a notice of appeal is filed more than 6 months after the date of judgment or order denying a new trial, this court has no jurisdiction to review the case.
A transcript needed for presenting errors upon appellate review may be provided for indigent defendants under § 611.07, but only when there is a case pending in the supreme court. Since defendant took no appeal to the supreme court within the 6 months' statutory period, the district court had no authority to order the provision of a transcript for defendant herein. Defendant cannot, by appealing from the order denying him a transcript, extend the 6 months' period within which he may secure a review of his case. Accordingly, it is self-evident that there is nothing for this court to review, and it is futile to have further proceedings in this matter. Accordingly, the motion to dismiss the appeal is granted.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567975/ | 10 So. 3d 866 (2009)
Dwayne LEDFORD
v.
NEW ORLEANS SAINTS.
No. 2008-CA-1307.
Court of Appeal of Louisiana, Fourth Circuit.
April 29, 2009.
Rehearing Denied June 3, 2009.
*868 Frank A. Bruno, New Orleans, LA, for Plaintiff/Appellant.
David K. Johnson, Johnson, Stiltner & Rahman, Baton Rouge, LA, for New Orleans Saints and Louisiana Worker's Compensation Corporation.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
EDWIN A. LOMBARD, Judge.
In this Workers' compensation matter, Plaintiff, Dwayne Ledford, appeals the decision of the trial court finding in favor of Defendants, the New Orleans Saints ("the Saints"). For the reasons more fully set forth below, we affirm.
Relevant Facts
On March 14, 2006, Mr. Ledford, a veteran football player, entered into a contract with the Saints. The terms of the contract provided that it was to be a twoyear contract from March 1, 2006 to February 28, 2008, with payment of $210,000.00 for the first year and $260,000.00 for the second year, if the player was member of the active roster.
On April 8, 2006, while in course and scope of his pre-season employment with the Saints, Mr. Ledford fractured his right pinkie finger. As a result, Mr. Ledford had surgery during which a plate and screws were placed in his finger. Subsequently, Mr. Ledford continued to participate in off-season workouts, mini camps and training camp exercises, until he was released from the team for unsatisfactory performance on September 1, 2006, prior to the beginning of the regular football season. Mr. Ledford was never a member of the Saints 2006 active roster.
Almost immediately following his release from the Saints, Mr. Ledford was offered positions with two other football teams with contract offers up to $100,000.00, but he chose to decline the offers without ever trying out for the teams. He later began a career as a football coach with NFL Europe, and earned $2,081.00 per month from March through July 2007. In January 2008, Mr. Ledford began earning *869 $5,000.00 per month with the All American Football League ("AFL").
Trial Court's Findings of Fact
After a trial, the trial found:
(1) Mr. Ledford was injured and released in the pre-season; his earnings for 24.28 weeks totaled $12,808.58, which was the basis of determining his average weekly wage;
(2) Mr. Ledford's average weekly wage is $527.00 per week;
(3) Mr. Ledford's Supplemental Earnings Benefits ("SEB") rate is $351.61 per week;
(4) Mr. Ledford did not carry his burden of proof that he is entitled to Temporary Total Disability or Permanent Partial Disability Benefits;
(5) Mr. Ledford did not carry his burden of proof that he suffered a workrelated accident with injury to his knee in 2006;
(6) Mr. Ledford did suffer a work-related accident with injury to his right fifth finger while within the course and scope of his employment with the New Orleans Saints on April 8, 2006 during the pre-season;
(7) Mr. Ledford did not carry his burden of proof that he earned less than or was not able to earn 90% of his pre-accident wages with an AWW of $527.00 per week;
(8) This claim was reasonably controverted. No penalties and attorney fees are due; and
(9) Each party is assessed its own costs.
Assignments of Error
Mr. Ledford argues that the trial court erred in the following:
(1) by failing to correctly calculate his average weekly wage to reflect the true earning capacity of an NFL football player;
(2) by denying supplemental earnings benefits and all other indemnity benefits and ignoring the medical evidence verifying his disability;
(3) by denying reimbursement of medical expenses for the treatment of his finger, which included removal of the hardware in his finger as well as physical therapy; and
(4) by failing to award attorney's fees and penalties for the employer/carrier's arbitrary refusal to pay any Workers' compensation benefits that are due and for the medical treatment that was clearly related to his injury.
Standard of Review
In Workers' Compensation cases, the appropriate standard of review to be applied by the appellate court to the Office of Workers' Compensation judge's findings of fact is the manifest error-clearly wrong' standard. Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So. 2d 112, 117. Thus, the trial court's factual finding should be given great weight and should not be overturned absent manifest error. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So. 2d 706.
Law and Discussion
Calculation of Average Weekly Wage
In his first assignment of error, Mr. Ledford argues that the workers' compensation judge erred in basing the calculation of his average weekly wage on his actual earnings of $12,808.58. He argues that the workers' compensation judge should have determined his average weekly wage based on his promised annual salary of $210,000, which would have given him a pre-injury monthly wage of $17,500.
*870 The court in Hughes v. New Orleans Saints & LWCC, 05-712 (La.App. 5th Cir.2/27/06), 924 So. 2d 1086, addressed similar circumstances. In Hughes, the Fifth Circuit Court of Appeal found that the workers' compensation judge incorrectly evaluated the claimant's status based on his promised contractual salary of $400,000.00, rather than his actual earnings. Id. at 1092. In so finding, the Fifth Circuit determined that although Hughes' contract promised a salary of $400,000.00 paid in "equal weekly or bi-weekly installments over the course of the applicable regular season period, commencing with the first regular season game played by the Club," it was improper to use that number to calculate benefits because Hughes was "released on September 5, 1999 before [emphasis added] the regular season commenced." Id.
As in Hughes, the record in this case reveals that the Saints released Mr. Ledford from the team on September 1, 2006, prior to the commencement of the regular 2006 season. As such, he was not actually entitled to the wages as set forth in his 2006 NFL contract because he was not, as contemplated in the agreement, a member of the Saints "active roster." According to the record, Mr. Ledford's wages for his 2006 pre-season play totaled $12,808.58. Therefore, the workers' compensation judge was correct in using this number for purposes of determining Mr. Ledford's entitlement to benefits. And since Mr. Ledford's tenure with the Saints consisted of 24.28 weeks (since his contract was signed March 14, 2006 and he was released on September 1, 2006), the trial court correctly calculated his average weekly wage to be $527.41 per week.
Entitlement to Supplemental Earnings Benefits
The purpose of supplemental earnings benefits is to compensate the injured employee for the wage-earning capacity he has lost as a result of his accident. Nelson v. City of Grambling, 31,303 (La.App.2d Cir.12/9/98), 722 So. 2d 358. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So. 2d 551. The determination of the correct average weekly wage earned by claimant at the time of his injury affects the computation of whether he is entitled to supplemental earnings benefits. In his second assignment of error, Mr. Ledford argues that the workers' compensation judge applied the incorrect calculation of his average weekly wage to calculate his level of supplemental earnings benefits. Again, Mr. Ledford contends that the workers' compensation judge should have calculated his average weekly wage and determined his entitlement to supplemental earnings benefits based on his promised annual salary of $210,000.00. Under this scenario, since his current earnings are not greater than 90% of his average weekly wage and Mr. Ledford would be entitled to supplemental earnings benefits.
La. R.S. 23:1221 sets out the schedules of compensation for the various categories of injuries within the statute. Since Mr. Ledford is neither permanently totally nor temporarily totally disability categories under La. R.S. 23:1221(1)-(2)., La. R.S. 23:1211(3), the statute that provides for supplemental earnings benefits, applies in this case. La. R.S. 23:1221(3) provides as follows:
(a) For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any *871 employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10).
La. R.S. 23:1221(3) places the initial burden to prove disability on the claimant. To qualify for Supplemental Earnings Benefits, a plaintiff is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages. LSA-R.S. 23:1221(3)(a); Nelson v. City of Grambling, supra. The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that Workers' compensation law is to be liberally construed in favor of coverage. Id.
As we previously stated, the trial court correctly calculated Mr. Ledford's average weekly wage using his pre-season salary. Because Mr. Ledford was not a member of the active roster as of the beginning of the season, he was not entitled to the agreed upon earnings stipulated in his contract with the Saints. Thus, when calculating supplemental earnings, in accordance with La. R.S. 23:1221(3)(d)(i), Mr. Ledford would only be entitled to supplemental earnings if he was unable to earn at least 90% of his pre-season salary.
Reviewing the facts related above, we conclude that trial court's finding that Mr. Ledford did not establish by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident was correct. Our review of the evidence reveals that Mr. Ledford's preinjury wages earned from his pre-season participation in Saints' training camps and work-outs was $12,808.58. Thus, he would only be entitled to supplemental earnings if he can prove that he cannot earn 90% of $12,808.58, or $11,527.72. The record reflects that Mr. Ledford was offered positions on two separate teams immediately after his release from the Saints, but he chose to decline the offers without trying out for the teams. Although Mr. Ledford may or may not have been able to return to play professional football, he began a second career as a football coach earning $2,081.00 per month from March through July 2007 with NFL Europe and, as of March 2007, earning $5,000.00 per month with the AFL. Thus, as Mr. Ledford is clearly able to earn 90% or more of his pre-injury earnings, the trial court's finding that Mr. Ledford is not entitled to supplemental earnings benefits is correct.
Reimbursement of Medical Expenses
In his third assignment of error, Mr. Ledford argues that the workers' compensation judge erred in denying reimbursement of medical expenses for the treatment of his finger, including removal of the hardware in his finger, as well as treatment and physical therapy for an alleged knee injury. He argues that the trial court ignored the medical evidence consisting of reports of Mr. Ledford's treating physician and those of the Saints' physician in failing to award damages for these expenses.
With regard to medical treatment, La. R.S. 23:1203(A) provides that the employer shall provide all necessary treatment, including "medical and surgical treatment, or any nonmedical treatment recognized by the laws of this state as legal." An employee establishes a claim for medical benefits by proving by a preponderance of the evidence and to a reasonable *872 certainty, the need for such treatment following his work-related accident. Ware v. Allen Parish Sch. Bd., 02-1011 (La.App. 3 Cir. 5/21/03), 854 So. 2d 374. Under La. R.S. 23:1021(1) an accident is defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."
In this case, the medical evidence presented at trial does in fact show that Mr. Ledford injured his right pinkie finger in April 2006 accident while participating in drills with the New Orleans Saints. The medical records from Dr. Claude Williams, the Saints' team physician, indicate that Mr. Ledford received the appropriate medical care for that condition and was having no problem with his hands as of the date he was released from the team on September 1, 2006. Notably, Mr. Ledford admitted in a deposition that he participated in all pre-season workouts, mini-camps, and training camp exercises following the injury to his finger.
On July 10, 2006, before his release by the Saints, Mr. Ledford's finger was examined by an orthopedist of his choice, Dr. Messer. Dr. Messer diagnosed Mr. Ledford with a right pinkie finger fracture due to an April 8, 2006 injury and recommended physical therapy with Dr. Williams in New Orleans to determine whether or not he would be able to play football without restrictions. Mr. Ledford returned to the team for the remainder of the pre-season. After his release, Mr. Ledford again sought medical advice from Dr. Messer and stated that he was having pain in his finger. Dr. Messer noted that Mr. Ledford desired to have the hardware in the finger surgically removed.
According to the Saints' team physician, at the time Mr. Ledford was released from the Saints, his finger fracture had healed. Although it was noted in his records that he may desire to have the hardware removed in the future, Mr. Ledford has provided no medical evidence that it was medically necessary that he do so. Moreover, that there is no evidence that the Saints authorized any of the medical treatment rendered. Therefore, we do not find that the trial court erred in failing to award Mr. Ledford damages for the subsequent medical treatment and surgery he sought for his finger after September 1, 2006.
Further, we do not find that Mr. Ledford has proven that his alleged knee injury was a result of an "accident" suffered while he was with the Saints. Although there was some anecdotal evidence of a second injury to Mr. Ledford's knee, Mr. Ledford admitted in deposition that he did not recall any incident or accident when his knee was injured and did not know what caused his knee problem. Moreover, he testified that he did not tell the Saints' team physician about any knee injury and never received medical treatment for any knee injury prior to his release from the Saints.
Thus, pursuant to the provisions of LSA-R.S. 23:1021(1), Mr. Ledford has failed to demonstrate the requisite "identifiable, precipitous event" or accident injury to link any subsequent knee problems to his employment with the Saints. Therefore, Mr. Ledford's injury for the purposes of workers' compensation is limited to his finger injury and we find no error in the trial court's failure award Mr. Ledford damages to reimburse him for the treatment of his alleged knee injury.
Attorney's Fees and Costs
Mr. Ledford's final assignment of error seeks review of the workers' compensation judge's failure to award penalties *873 and attorneys fees for the Saints' alleged arbitrary and capricious refusal to pay benefits. La. R.S. 23:1201(F) provides for assessment of a penalty and attorney fees where the employer or insurer has refused or failed to pay benefits due. However, the penalty and attorney fees do not apply if the claim is reasonably controverted. La. R.S. 23:1201(F)(2). To determine whether the claimant's right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 7-10 (La.12/1/98); 721 So. 2d 885, 889-91. This definition is in accord with that presently used by the lower courts to determine whether penalties and attorney fees are owed. Id.
Reviewing the evidence in the case, it is clear that the claim was reasonably controverted based on the information available to the Saints. Notably, the Saints paid Mr. Ledford his normal weekly wage until he was officially cut from the team on September 1, 2006. At the time of his exit examination with the Saints' physician, Mr. Ledford's fracture was healed. Further, based upon the evidence available to the Saints, immediately after his release from the Saints, Mr. Ledford was offered positions with other professional teams and had accepted positions as a professional coach. Moreover, Mr. Ledford failed to request authorization for medical treatment from the Saints for his finger injury and has failed to show that removal of the hardware in the finger was medically necessary. Accordingly, because Mr. Ledford's claim was reasonably controverted, he is not entitled to penalties and attorneys fees for the Saints' failure to pay benefits.
Conclusion
Based on the foregoing, we find no error in the trial court's findings. Mr. Ledford has not proved his entitlement to supplemental earnings benefits, workers' compensation benefits, medical expenses, and/or penalties and attorneys fees. Accordingly, we affirm that trial court's judgment in its entirety. Costs of this appeal are to be split equally between the parties.
AFFIRMED.
ARMSTRONG, C.J., concurs in the result.
ARMSTRONG, C.J., concurs in the result.
I agree with the majority opinion that the only injury established by the record was to the claimant's "pinkie" finger. As I do not believe that the record supports a finding that the injury was disabling, I concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/732829/ | 104 F.3d 359
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.POTTER-SHACKELFORD CONSTRUCTION COMPANY, INCORPORATED,Plaintiff-Appellee,v.LAW ENGINEERING, INCORPORATED, Defendant-Appellant.POTTER-SHACKELFORD CONSTRUCTION COMPANY, INCORPORATED,Plaintiff-Appellant,v.LAW ENGINEERING, INCORPORATED, Defendant-Appellee.
Nos. 96-1073, 96-1112.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 29, 1996.Decided Dec. 23, 1996.
Appeals from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (CA-95-116-6-20)
ARGUED: Robert O'Neal Fleming, Jr., SMITH & FLEMING, Atlanta, Georgia, for Appellant. Thomas H. Coker, Jr., HAYNSWORTH, MARION, MCKAY & GUERARD, L.L.P., Greenville, South Carolina, for Appellee. ON BRIEF: Boyd B. Nicholson, Jr., Cynthia Buck Brown, HAYNSWORTH, MARION, MCKAY & GUERARD, L.L.P., Greenville, South Carolina, for Appellee.
D.S.C.
REMANDED IN PART, AFFIRMED IN PART.
Before MURNAGHAN and MICHAEL, Circuit Judges, and DOUMAR, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
OPINION
PER CURIAM:
1
Potter-Shackelford Construction Co., Inc. ("Potter-Shackelford"), sued Law Engineering, Inc. ("Law") for breach of contract, negligence, professional negligence and negligent misrepresentation. The basis of Potter-Shackelford's claim was Law's alleged failure to provide adequate recommendations regarding the suitability of a concrete floor slab on a building, with which Potter-Shackelford was involved. Punitive damages also were sought. At the close of evidence Law made a motion for judgment as a matter of law as to punitive damages. The district court granted that motion. Thereafter, the jury returned a compensatory verdict in favor of Potter-Shackelford for $126,552.73. The district court denied Law's post-trial motion for judgment notwithstanding the verdict holding that the liability of limitation clause contained in the contract executed by the parties, which limited Law's liability to $50,000, did not apply to the claims raised by Potter-Shackelford against Law. Both Potter-Shackelford and Law have appealed.
I.
FACTS AND PROCEDURAL HISTORY
2
In 1988, Hart Corporation ("Hart"), a real estate development company, awarded Potter-Shackelford, a commercial general contractor, a contract to build a "shell" building for speculative sale. The inside of the building, to include a floor slab, was left unfinished in order to allow a potential buyer flexibility in using the building. Hart hired Law, an engineering company providing soils and construction material testing and related engineering services, to provide geotechnical engineering services in connection with the project. Before Potter-Shackelford did any work on the site, Law examined the existing site in order to make recommendations to Hart regarding, among other things, the type of soil fill material to be placed in the building's subgrade. Law made recommendations regarding the physical characteristics of the fill material, specifically including recommendations concerning the "liquid limits" of the soil fill and its maximum "plasticity index."1 Law recommended a maximum plasticity index of 15 for fill materials within the shell building.
3
In 1991, Hamilton Standard Company ("Hamilton"), a distributor based in Connecticut, purchased the shell building. Hamilton requested that Potter-Shackelford and other contractors submit bids to upfit the building to suit Hamilton's specific needs. These upfits included the construction of a concrete floor slab, offices, and other facilities. After receipt of the bids, Hamilton asked Potter-Shackelford to revise its proposal to provide assurances that the subgrade would properly support a concrete floor slab. Potter-Shackelford agreed to Hamilton's proposal, but conditioned its acceptance on Hamilton's agreeing to pay extra for the removal of unsuitable material found in the subgrade. Hamilton agreed to do so.
4
After reaching its agreement with Hamilton, Potter-Shackelford contacted Law to provide engineering services in connection with the construction of a concrete floor slab in the building. On January 2, 1992, Art Baiden of Potter-Shackelford spoke with Michael Parker, an engineer with Law. Baiden and Parker agreed to meet at the building site on January 7, 1992. No work order was executed before the meeting.
5
At the site, Baiden, bearing in mind Hamilton's obligation to pay for unsuitable material found in the subgrade, asked Parker what needed to be done to make the existing subgrade suitable to support the proposed concrete floor slab. At that time, Parker recommended that the subgrade be reconditioned by evacuating the upper one to two feet of soil, adding moisture, and then replacing and compacting the soil. Parker also recommended that plateload testing be performed in three areas, to make sure that the reconditioned soil would have adequate strength to support the proposed concrete floor slab. Parker did not recommend any further testing of the soil, nor did he discuss with Baiden the existence of plastic soils within the subgrade.2 Based on Parker's recommendation, Baiden authorized Law to perform the plateload testing.
6
After the meeting, Parker returned to his office and prepared a written proposal, under which Law would conduct field density testing during preparation of test areas, to conduct plateload tests, and to report the results. The proposal clearly related to two parts of a single obligation recommendation and the work authorization for accomplishing it. Law's proposal was printed on a form titled "Work Authorization Sheet." That form stated: "The purpose of this sheet is to obtain your authorization for the work verbally requested and confirm the terms under which these services are provided as shown below and on back." On the back of the form are Law's standard "Term and Conditions," including the following provision:
7
PROFESSIONAL LIABILITY. Client agrees that Law Engineering's liability to Client or any third party due to any negligent professional acts, errors or omissions or breach of contract will be limited to an aggregate of $50,000 or our total fee, which ever is greater. If Client prefers to have higher limits of professional liability, we agree to increase the limit to a maximum of $1,000,000 upon Client's written request at the time of accepting our proposal, providing that Client agrees to pay an additional consideration of ten percent of our total fee, or $500, whichever is greater. The additional charge for the higher liability limit is because of the greater risk assumed by us and is not a charge for additional professional liability insurance.
8
After completion of the plateload testing,3 in February 1992, Law sent Potter-Shackelford a written report detailing the tests and making recommendations based on the test results. The report made references to the October 1991 and December 1991 reports, but made no mention of the problems respecting the high plasticity index values of the soil present in the subgrade. Prior to receiving the February 1992 report, Potter-Shackelford recompacted the subgrade and began pouring the concrete slab floor over the original subgrade soil. By March, 1992, the concrete floor had been completed. Thereafter, a portion of the concrete floor, began to buckle and shift, causing the owner (Hamilton) to become aware of the building problems. After investi gations by several engineers,4 Potter-Shackelford and Hamilton concluded that the high plastic soils in the subgrade were responsible for the problems with the concrete floor slab. Potter-Shackelford then removed and replaced approximately 8,500 square feet of the concrete floor slab.
9
Potter-Shackelford sued Law for breach of contract, negligence, professional negligence and negligent misrepresentation in the Court of Common Pleas, in Greenville, South Carolina. Law removed the case to the United States District Court for the District of South Carolina based on diversity of citizenship. Law moved for partial summary judgment limiting its liability to $50,000, in accordance with the limitation of liability clause contained in the work authorization form. Finding a genuine issue of material fact existed as to whether the limitation of liability applied, on August 21, 1995, the district court denied the motion.
10
On November 29, 1995, the district court granted Law's motion for judgment as a matter of law as to punitive damages. At the close of Potter-Shackelford's case, and again at the close of all the evidence, Law sought judgment as a matter of law enforcing the limitation of liability clause. The district court denied both motions. On November 30, 1995, the jury awarded Potter-Shackelford damages in the amount of $126,552.73. On December 12, 1995, the district court denied Law's post-trial motion for judgment as a matter of law with respect to the liability limitation clause contained in the work authorization form. Law filed its notice of appeal on January 10, 1996, and Potter-Shackelford filed its notice of cross-appeal on January 22, 1996.
II.
DISCUSSION
11
On appeal we must center on whether a limitation of liability provision on the back of Law's Work Authorization Form, which was signed by Potter-Shackelford's representative is legal and applies. As the issue raised is one of contract construction, the district court's decision is subject to plenary review by the court. Bailey v. Blue Cross & Blue Shield of Virginia, 67 F.3d 53, 54 (4th Cir.1995), cert. denied, 116 S.Ct. 1043 (1996). Preliminarily, the parties disagree on what state law controls in the instant appeal.
A. Choice of Law
12
The aforementioned limitation of liability provision provides that the agreement shall be governed by the laws of the State of Georgia. As Law notes, South Carolina courts have long respected the consistently enforced contractual choice of law provisions, except where the stipulated law directly conflicts with South Carolina public policy. Associated Spring Corp. v. Roy F. Wilson Avent, Inc., 410 F.Supp. 967, 975 (D.S.C.1976). Furthermore, Law argues that application of Georgia law relating to exculpatory clauses does not violate South Carolina public policy.5
13
The limitation of liability clause here is legal, and hence, Georgia law will control. In any event, as Potter-Shackelford has candidly admitted, Georgia's law respecting limitation of liability is no different from that of South Carolina. Potter-Shackelford's Brief, at p. 17 n. 11.
14
Under Georgia Law, contractual limitation of liability provisions are valid and enforceable:
15
It is the paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract. A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest. Exculpatory clauses in Georgia are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence. Parties to the contract are presumed to have read their provisions and to have understood the contents. One who can read, must read, for he is bound by his contracts.
16
My Fair Lady of Georgia, Inc. v. Harris, 364 S.E.2d 580, 581 (Ga.App.1987).
17
B. The Applicable Limitation of Liability Provision
18
In a nutshell, Potter-Shackelford argues that the limitation of liability provision is limited to the performance of plateload tests, not to Law's recommendations with respect to plateload tests, i.e., performance vs. advice to perform. Potter-Shackelford expresses no dissatisfaction with the actual plateload testing performed by Law. Rather, Potter-Shackelford argues that Law's recommendation of plateload testing at the January 7 meeting was faulty, especially in light of Law's prior experience with the concrete slab. Law was paid for that recommendation and no limitation of liability form was executed for that work, Potter-Shackelford contends.
19
Furthermore, Potter-Shackelford argues that "the most important evidence on the issue is the authorization form itself." Potter-Shackelford claims that the authorization form speaks only to Law's performing and reporting of plateload tests. The form, Potter-Shackelford contends, makes no mention of providing any consultation services.6 On the other hand, Law argues what Potter-Shackelford wanted from Law was its engineering judgment necessary to determine what needed to be done to the subgrade. Law argues that Law's recommendation of plateload testing, and the subsequent implementation of that recommendation, are complementary parts of a single transaction.7 Law maintains that the gravamen of Potter-Shackelford's complaint is that Law's recommendation of plateload testing instead of other kinds of testing which would have revealed the existence of plastic soils in the subgrade, amounted to the result of the plateload testing which Law represented would make the subgrade soils suitable to support the concrete floor slab. Law responds there was one continuous activity by it or two closely linked activities acting together. Parker prepared a written proposal embodying Law's recommended course of action and sent that proposal to Potter-Shackelford. The proposal was signed and accepted by Potter-Shackelford and became the contract between the parties. Included within that contract, Law argues, is the limitation of liability clause.
20
In an oral ruling, the district court denied Law's motion for judgment as a matter of law at the close of all the evidence on the grounds that the limitation of liability provision "pertains purely to a separate specific contract concerning plateload testing, which is not even claimed in this case as far as the contract action by the plaintiff against the defendant."8
21
In our view the ruling of the district court should be amended to take account of the limitation of liability. Law correctly states that contract language is to be evaluated in light of surrounding circumstances to ascertain the intention of the parties. Paul v. Paul, 219 S.E.2d 736 (Ga.1975). Prior to constructing the concrete floor slab, Potter-Shackelford turned to Law for its advice on the suitability of the subgrade to support a concrete floor slab. After the January 7 meeting between Baiden from Potter-Shackelford and Parker from Law, Parker prepared a written proposal in which Law was to provide an engineer technician to conduct field density testing; conduct three plateload tests; and report the results of those tests. On the back of the proposal, the limitation of liability clause appears, as well as the choice of law provisions.
22
It is a situation designed to lead to performance if feasible and continuing to be performed when determined to be feasible. Potter-Shackelford's argument seems merely an attempt to salvage its jury verdict through resort to an unrealistic approach to the parties' agreement. After Law completed its work, Law sent Potter-Shackelford a single invoice in the amount of $3,582.28, which included a charge of $225 for Parker's time on January 7. That indicated a belief by Law that a single contract covering both the recommendation of plateload testing and the implementation of the recommendation was in existence. Agreement as to such an interpretation by Potter-Shackelford is demonstrated by its payment without objection of the entire bill without asking for a separation into distinct activities.
23
Potter-Shackelford stresses that no work authorization form was completed with respect to the January 7 meeting, however, the lack of a work authorization form weighs against Potter-Shackelford. The fact that no separate work authorization form exists, or was created, for the January 7 meeting suggests that Parker's January 7 meeting, and his recommendations are a part and parcel of the proposal Parker sent to Potter-Shackelford. Parker's recommendations were followed on without interruption by the plateload testing itself. Potter-Shackelford's argument that only the actual plateload testing--and not the plateload recommendation itself--is covered by the limitation of liability clause ignores the circumstances under which the plateload testing was done in the first place.
24
Moreover, Baiden testified that he met with "Parker at the job site to get his opinion as a geotechnical engineer as to what we needed to do with the [soil] subgrade to make it suitable to accept the [concrete] floor slab." Potter-Shackelford does not dispute that Parker recommended plateload testing and Potter-Shackelford promptly accepted the recommendation. Law argues persuasively that a single operation needed to be done which included both the recommendation of plateload testing, as well as the performance of that testing and the reporting of the results.
25
The surrounding circumstances related to the formation and interpretation of the contract include the fact that the parties acted to send and pay only one invoice for the plateload testing work, including the recommendation that the testing be done and the fact that Potter-Shackelford engaged Law's expertise to determine how to make the subgrade suitable for the concrete floor slab. They amply demonstrate that the recommendation of plateload testing was part of a single contract entered into between the parties, and hence, the limitation of liability provision should apply.
C. Punitive Damages
26
In its cross-appeal, Potter-Shackelford appeals the district court's grant of Law's motion for judgment as a matter of law as to punitive damages. Potter-Shackelford contends that the district court erred in ruling as a matter of law on the punitive damages issue because the record provided substantial evidence that Law withheld crucial information from Potter-Shackelford.
27
The district court apparently passed over the matter whether breach of contract would support punitive damages, Floyd v. County Square Mobile Homes, Inc., 336 S.E.2d 502 (S.C.Ct.App.1985); Vann v. Nationwide Ins. Co., 185 S.E.2d 363 (S.C.1971), ruling that insufficient evidence existed to create a jury question on the punitive damages issue. Potter-Shackelford argues that the standard of review should be de novo, and we do not disagree. Benedi v. McNeil-PPC, Inc., 66 F.3d 1378 (4th Cir.1995).
28
In diversity cases federal law governs whether an issue is to be determined by the court or the jury. Johnson v. Hugo's Skateway, 974 F.2d 1408, 1416 (4th Cir.1992) (en banc). Under federal law, the grant of judgment as a matter of law is appropriate only when the evidence, viewed in a light most favorable to the non-moving party, would support only one reasonable verdict. See Williams v. Cerberonics, Inc., 871 F.2d 452, 458 (4th Cir.1989). The same standard is applied by the Fourth Circuit in reviewing a district court's granting judgment as a matter of law. Nehi Bottling Co. v. All American Bottling Co., 8 F.3d 157, 162 (4th Cir.1993). In determining whether judgment as a matter of law is appropriate regarding punitive damages, however, a federal court in diversity must apply state substantive law. Defender Industries, Inc. v. Northwestern Mutual Life Insurance Co., 938 F.2d 502, 504-05 (4th Cir.1991) (en banc). Under South Carolina law, punitive damages are appropriate where the conduct of the defendant was willful, wanton or reckless. Barber v. Whirlpool Corp., 34 F.3d 1268 (4th Cir.1994). A demonstration of "conscious wrongdoing" must be made by the plaintiff to justify an award. Id. at 1278.
29
Potter-Shackelford argues that sufficient evidence existed to submit the punitive damages issue to the jury. As support for its position, Potter-Shackelford notes that at the time Parker met with Baiden, Law, through its representative Parker, knew, and had reported in the past, that the project's subgrade contained expansive, plastic soils which rendered the subgrade unsuitable for a concrete floor slab. Law failed to inform Potter-Shackelford of those facts. Potter-Shackelford argues that "[t]he fact that Law withheld information concerning plastic soils, standing alone, created an issue of fact for the jury to determine whether Parker, as a professional engineer, had willfully or recklessly withheld information from Potter-Shackelford."
30
Furthermore, Potter-Shackelford contends that Law continued to withhold the information about the plastic soils, even after the problems with the subgrade became manifest. In addition, according to Potter-Shackelford, Law took an affirmative step further to mislead Potter-Shackelford concerning the subgrade, by noting in its 1994 report, that the maximum plasticity index value for the project site should be 30. The 30 figure was double the index value given in Law's three prior reports in 1988, October 1991, and December 1991.
31
Potter-Shackelford argues that a jury could have reasonably concluded that Law withheld information about the plastic soils in order to hide the fact that Law performed faulty work on the project in 1988. Potter-Shackelford notes that in 1988, Law monitored the soil fill placement for Hart, the owner of the site at the time. In 1988, as well as 1991, Law recommended a maximum plasticity index of 15. Based on the soil tests performed in 1993 and 1994 showing plasticity index values ranging from 21 to 74, the jury could have reasonably inferred that Law failed properly to monitor fill placement in 1988, and that upon realizing this failure, worked to withhold the information.
32
In response, Law argues the evidence viewed in a light most favorable to Potter-Shackelford permits only one reasonable conclusion: Law's failure adequately to apprise Potter-Shackelford about plastic soils in the subgrade resulted from miscommunication and misunderstanding, not willful misconduct. Law claims that when Parker met with Baiden from Potter-Shackelford, Parker believed that Baiden had read both the October 1991 and December 1991 reports because Baiden knew of the existence of the reports. Therefore Parker thought Baiden was aware of the plastic soils in the subgrade.9 Moreover, Law contends that Law did not provide copies of the October 1991 and December 1991 reports to Potter-Shackelford after the concrete floor slab began manifesting problems because of Law's standard policy that any report Law prepares is the property of the client, and cannot be provided to a third party without the client's permission. As for Potter-Shackelford's argument that Law failed reasonably to monitor fill placement in 1988 and upon realizing that failure, worked to withhold the information, Law contends that Law was not hired to monitor the plasticity of fill soils during the 1988 construction.
33
The district court correctly granted Law's motion for judgment as a matter of law on the punitive damages issue. While Law was probably negligent in not making sure that Baiden had read the October 1991 and December 1991 reports, Potter-Shackelford has not offered any evidence from which a reasonable jury could conclude that Law's conduct rose to the level of willfulness or "conscious wrongdoing." The district court should, therefore, as to punitive damages, be affirmed.
34
Accordingly, the recovery judgment should be remanded to be covered by the limitation of liability at $50,000 and the denial of punitive damages should be affirmed.
35
REMANDED IN PART AND AFFIRMED IN PART.
1
Soils with a high plasticity index have a high potential for swelling and also have inherent in them the opposite problem of shrinking when moisture is lost. The plasticity index tells engineers the potential the soil has for swelling when the soil becomes wet. Soil materials with high plasticity indexes are generally undesirable for construction and are normally removed because the swelling of the soil causes the floor slab to be raised in areas above the swelling soil
2
In October 1991, Parker prepared a report for David Rogers, a Law customer, concerning the condition of the subgrade of the building. Law's October 1991 report indicated that soil borings taken by Law had a plasticity index of 53. The report also stated that the presence of plastic soils "compromises the ability of the subgrade to provide proper support...." On December 20, 1991, Law prepared another report, in which Law recommended that the soils used in compacted fills have a plasticity index less than 15, and that the subgrade in its present condition did not appear feasible to support a floor slab. Parker did not prepare the second report, but was aware of the report. Parker had copies of both reports when he met with Baiden, but did not discuss the reports with Baiden. These reports, and Parker's failure to mention them to Baiden form the basis for Potter-Shackelford's punitive damages claim to be discussed in more detail hereafter
3
Potter-Shackelford contends that Law performed the plateload testing and verbally reported the results of the testing before Baiden signed the Work Authorization Form. Baiden signed the form on January 16, 1992. Law's performance of the work before Baiden signed the form does not appear to be material to the controversy at hand
4
Law also examined the concrete floor and expressed its belief that curling may have been responsible for the floor's problems. Curling occurs when the top of the concrete slab dries faster than its bottom. In January, 1994, after performing additional tests on the subgrade, Law issued a report concluding that expansive soils were not causing the slab's problems because "no evidence [exists] that the overall moisture content of the subgrade ... changed significantly." Law's 1994 report made reference to its October, 1991 and December, 1991 reports. Law's report also recommended a desired plasticity index of 30
5
Law cites to two unpublished decisions from the Fourth Circuit to support its proposition, Georgetown Steel Corp. v. Law Engineering Testing Co., 7 F.3d 223 (Table), 1993 WL 358770 (4th Cir. Sept. 14, 1993), and Gibbes, Inc. v. Law Engineering, Inc., 960 F.2d 146 (Table), 1992 WL 78830 (4th Cir. Apr. 20, 1992). While the decisions are not precedent, we find their holdings persuasive. Potter-Shackelford agrees that they reiterate the general rule that exculpatory clauses like the one involved in the present case are not void as a matter of public policy
6
In addition, Potter-Shackelford argues that another authorization form provided by Law to another client specifically mentions examining the subgrade conditions and rendering an opinion "on the suitability of the soil subgrade to receive a concrete floor slab on grade." Notwithstanding the irrelevance of another authorization form addressed to another client, not involved with the present lawsuit, even if that other form was otherwise relevant, the language included in that form bears no relevance to the language in the present form. Undeniably, Law did not include similar language in the form Law provided to Potter-Shackelford. The lack of that language, however, does not demonstrate in any way that the recommendations provided by Parker were not a part of the contract executed by the parties. Law was approached by Potter-Shackelford to solve a problem not to break it into two or more pieces. At best, the absence of the language represents an oversight by Parker, or sloppy work, or else perhaps avoidance of needless redundancy
7
It is as though in baseball one hits a home run. That means a single hit not four hits (a single, a double, a triple, and a four baser). Or a double play where the ball passes from pitcher to batter, to shortstop, to second baseman to first baseman is overall a single event though involving different though complementary acts by five different players. In other words, we are dealing with an A1 and A2 which coalesced into a composite A. Even if we had a situation where two distinct items merged (A k B = a successor A), which neither of the parties nor the district judge has addressed, we might well end up with the same conclusion. DeLong v. Cobb, 111 S.E.2d 89, 93 (Ga.1959) ("[Y]et it is a well-settled principle of law ... that all pertinent representations and negotiations prior to the preparation and execution of a written contract are merged therein."), overruled sub nom. on other grounds, Long v. Walls, 177 S.E.2d 373 (Ga.1970)
8
In an earlier written ruling on Law's motion for partial summary judgment on the limitation of liability provision, the district court denied that motion on the grounds that "[a]t the very least, a genuine issue of material fact exists as to whether the limitation of liability applies."
9
Law relies on Parker's notes recorded contemporaneously with the telephone conversation on January 2 between Parker and Baiden setting up the January 7 meeting. The notes, unrebutted, state that "[h]e [Baiden] does not have either report but obtained Oct copy from Steven Turner...." Law's Reply Brief, at 8. The notes also state that "he [Baiden] needs to read both reports so he can determine what to do." Id | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3049851/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1777
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Christopher Clutter, *
*
Defendant - Appellant. *
___________
Submitted: January 13, 2012
Filed: March 26, 2012 (Corrected: 03/27/2012)
___________
Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.
___________
LOKEN, Circuit Judge.
After entering a conditional plea of guilty to receiving and possessing child
pornography in violation of 18 U.S.C. §§ 2252(a)(2), (a)(4), (b)(1), and (b)(2),
Christopher Clutter appeals the district court’s1 denial of his motion to suppress,
arguing that his father, Joel Clutter, had neither actual nor apparent authority to
consent to the seizure of three computers from the family home. We review the
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of United States
Magistrate Judge James C. England.
denial of a motion to suppress de novo but the underlying factual determinations for
clear error, giving due weight to inferences drawn by law enforcement officials.
United States v. Nichols, 574 F.3d 633, 636 (8th Cir. 2009). We conclude based on
the totality of the circumstances that the seizure was not constitutionally unreasonable
and therefore affirm.
Early on a December morning, Jasper Missouri Police Chief Christopher
Creekmore followed fresh tracks in the snow from the site of a commercial burglary
to the Clutter residence, learning from employees of a bank along the route that
Clutter had asked whether the bank’s surveillance camera was operating that
morning. Creekmore encountered Clutter on the back porch. He denied involvement
in the burglary. After further interviews, on January 8 Clutter admitted committing
a series of burglaries and took Creekmore and another officer to the family home,
where they explained the situation to Joel Clutter, a former police officer, who gave
permission to search the entire residence. Clutter led the officers to his bedroom and
showed them stolen tools, computers, and other electronic items. He said he had used
the stolen computer equipment to build several computers. He also said he had
downloaded business files from the stolen computers and pointed to a large stack of
discs next to his computer. Creekmore arrested Clutter and seized the stolen
computer equipment, including the stack of discs.
Some days later, Creekmore searched the seized discs to identify burglary
victims. When he saw photos he believed to be child pornography, he stopped the
search and turned the material over to Detective Tim Williams of the county sheriff’s
department to commence a child pornography investigation, telling Williams officers
had observed three computers at the Clutter residence on January 8 that were not
seized. On January 22, with Clutter in custody at the county jail, Williams and
Creekmore went to the Clutter residence. They told Joel Clutter they had discovered
child pornography and were concerned that three computers in the home might
contain more illegal images. Joel Clutter said that he owned the home, invited the
-2-
officers in, gave them permission to search, and signed consent forms for three
computers. Two were found in common areas of the house and the third in an area
controlled by Joel Clutter. He urged the officers to take the computers. They did so
and then obtained a warrant to search their contents. Officers executing the warrant
found over five hundred images of child pornography. This prosecution followed.
Prior to trial, Clutter moved to suppress (i) incriminating statements made on
January 8; (ii) the warrantless seizure of computer equipment on January 8 and the
subsequent search of the seized discs; and (iii) the warrantless search of his home and
seizure of three computers on January 22. After an evidentiary hearing at which
Chief Creekmore and Detective Williams testified, Magistrate Judge England issued
a lengthy Report and Recommendation recommending the motion be denied in its
entirety. Clutter filed Objections arguing (i) Clutter did not consent to the January
8 seizures and if he did, the subsequent search of the discs exceeded that consent; and
(ii) there was no valid consent for the warrantless seizure on January 22 because the
government presented no evidence that Joel Clutter “used or had electronic access”
to the three computers. District Judge Fenner adopted Magistrate Judge England’s
recommendations and denied the motion.
On appeal, Clutter argues that the district court erred in upholding the
warrantless search and seizure of his computers on January 22. No exception to the
Fourth Amendment’s warrant requirement applies, he argues, because the government
failed to prove that Joel Clutter had actual or apparent authority to consent to the
seizure. As Clutter does not appeal the district court’s other suppression rulings, it
is undisputed for purposes of this appeal that the discs were validly seized on January
8 and that a valid search of the discs before January 22 uncovered evidence of
downloaded child pornography.
Clutter’s appeal centers on the principle of third party consent, a recognized
exception to the Fourth Amendment’s warrant requirement. See Nichols, 574 F.3d
-3-
at 636. The principle “does not rest upon the law of property . . . but rests rather on
mutual use of the property by persons generally having joint access or control for
most purposes, so that it is reasonable to recognize that any of the co-inhabitants has
the right to permit the inspection in his own right and that the others have assumed
the risk that one of their number might permit the common area to be searched.”
United States v. Matlock, 415 U.S. 164, 172 n.7 (1974); see Frazier v. Cupp, 394 U.S.
731, 740 (1969) (joint use of duffel bag validated third party’s consent to search).
Even when a third party lacks actual authority to consent to search or seizure of
shared property or premises, the Fourth Amendment is not violated if the officers
reasonably relied on the third party’s apparent authority to consent, United States v.
James, 353 F.3d 606, 615 (8th Cir. 2003), because the Amendment’s reasonableness
requirement demands of government agents “not that they always be correct, but that
they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
Clutter relies primarily on Matlock as applied in James, 353 F.3d at 613-15,
where we held that a friend who was asked by the defendant to store computer discs
marked “Confidential” had no actual or apparent authority to consent to a warrantless
search of their contents. In recent years, whether a third party validly consented to
search of a shared computer has been a recurring Fourth Amendment issue,
particularly in child pornography prosecutions. It is a sensitive issue because, “[f]or
most people, their computers are their most private spaces.” United States v. Andrus,
483 F.3d 711, 718 (10th Cir. 2007) (quotation omitted), cert. denied, 552 U.S. 1297
(2008). When determining whether a third party exercised actual or apparent
common authority over the contents of a computer, courts typically examine several
factors -- whether the consenting third party in fact used the computer, whether it was
located in a common area accessible to other occupants of the premises, and -- often
most importantly -- whether the defendant’s files were password protected. See
United States v. Stanley, 653 F.3d 946, 950-51 (9th Cir. 2011); United States v.
Stabile, 633 F.3d 219, 232-33 (3d Cir.), cert. denied, 132 S. Ct. 399 (2011); Andrus,
483 F.3d at 719-20; United States v. Buckner, 473 F.3d 551, 554-55 (4th Cir.), cert.
-4-
denied, 550 U.S. 913 (2007); United States v. Morgan, 435 F.3d 660, 663-64 (6th Cir.
2006). Clutter argues it was error to deny his motion to suppress because the
government presented no evidence “that Joel Clutter used or had electronic access to
the computers.”
The primary flaw in this argument is that the only Fourth Amendment issue
with any factual support is whether the three computers were validly seized at the
Clutter home on January 22. There is no evidence that the officers searched the
computers before obtaining an unchallenged warrant authorizing the search. The
distinction, though often overlooked, is important:
Although our Fourth Amendment cases sometimes refer
indiscriminately to searches and seizures, there are important differences
between the two . . . . The Amendment protects two different interests
of the citizen -- the interest in retaining possession of property and the
interest in maintaining personal privacy. A seizure threatens the former,
a search the latter. As a matter of timing, a seizure is usually preceded
by a search, but when a container is involved the converse is often true.
Significantly, the two protected interests are not always present to the
same extent; for example, the seizure of a locked suitcase does not
necessarily compromise the secrecy of its contents, and the search of a
stopped vehicle does not necessarily deprive its owner of possession.
Texas v. Brown, 460 U.S. 730, 747-48 (1983) (Stevens, J., concurring), cited in
Arizona v. Hicks, 480 U.S. 321, 328 (1987); see generally United States v. Jones, 132
S. Ct. 945, 951 (2012); Soldal v. Cook County, 506 U.S. 56 (1992). In this case, the
distinction is significant for three different reasons.
First, “[a] ‘seizure’ of property occurs when there is some meaningful
interference with an individual’s possessory interests in that property.” United States
v. Jacobsen, 466 U.S. 109, 113 (1984). In this case, Clutter was in jail on January 22.
A temporary seizure of the computers while the officers applied for a search warrant
-5-
did not meaningfully interfere with his possessory interests. Joel Clutter, who was
in actual possession of the computers in his home, consented to their seizure, indeed,
he asked the officers to take them from the home. Viewed from this perspective, no
Fourth Amendment “seizure” occurred. See United States v. Place, 462 U.S. 696,
705-06 (1983).
Second, based on their prior valid search of the discs, Chief Creekmore and
Detective Williams had probable cause to believe the computers contained evidence
of child pornography offenses. “Where law enforcement authorities have probable
cause to believe that a container holds contraband or evidence of a crime, but have
not secured a warrant, the Court has interpreted the [Fourth] Amendment to permit
seizure of the property, pending issuance of a warrant to examine its contents, if the
exigencies of the circumstances demand it or some other recognized exception to the
warrant requirement is present.” Place, 462 U.S. at 701; see Jacobsen, 466 U.S. at
121-22. As the Sixth Circuit said in upholding the warrantless seizure of a suitcase
while officers obtained a search warrant, “[t]his was a plain old-fashioned seizure of
a person’s effects, based on probable cause, in order to prevent the disappearance of
evidence and so that a warrant could be obtained and a search conducted.” United
States v. Respress, 9 F.3d 483, 486 (6th Cir. 1993). Likewise, the Eleventh Circuit
held that seizure of a computer “to ensure that the hard drive was not tampered with
before a warrant was obtained” did not violate the Fourth Amendment in United
States v. Mitchell, 565 F.3d 1347, 1350 (11th Cir. 2009); accord United States v.
Walser, 275 F.3d 981, 985-86 (10th Cir. 2001), cert. denied, 535 U.S. 1069 (2002).
Third, the officers’ limited purpose in temporarily seizing the computers -- to
avoid the destruction of evidence while they applied for a search warrant -- is relevant
to the validity of Joel Clutter’s third party consent. The officers knew that the
computers were located in areas of the home accessible to Joel Clutter, a former
police officer who knew why they wanted to seize the computers, signed consent
forms, and urged the officers to take the computers with them. As in Stabile, 633
-6-
F.3d at 232-33, and in Nichols, 574 F.3d at 636-37, the officers reasonably relied on
Joel Clutter’s actual or apparent authority to consent to a temporary seizure, without
inquiring as to whether he “used or had electronic access to the computers.”
For these reasons, we conclude that the totality of the circumstances plainly
support the district court’s determination that seizure of the three computers on
January 22 was not constitutionally unreasonable, based on Joel Clutter’s consent,
the officers’ probable cause to believe the computers contained evidence of child
pornography offenses, and their intent to obtain a search warrant.
The judgment of the district court is affirmed.
______________________________
-7- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1568492/ | 10 So. 3d 1279 (2009)
Aquiline ARNOLD
v.
BROOKSHIRE GROCERY COMPANY, et al.
No. 09-44.
Court of Appeal of Louisiana, Third Circuit.
May 6, 2009.
*1280 Charles J. Foret, Briney & Foret, Lafayette, LA, for Defendant/Appellee, Brookshire Grocery Company.
Michael L. Barras, Galloway Jefcoat, LLP, Lafayette, LA, for Plaintiff/Appellant, Aquiline Arnold.
Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
PICKETT, J.
The plaintiff, Aquiline Arnold, appeals a judgment of the trial court dismissing her suit against the defendant, Brookshire Grocery Company (d/b/a Super One Foods and hereinafter referred to as Brookshire's), with prejudice, at her costs. We affirm the judgment of the trial court.
FACTS
This case arises out of a slip and fall which happened at the Brookshire's store in New Iberia on June 21, 2006. The plaintiff filed suit on June 19, 2007, basing her claim on La.R.S. 9:2800.6 which covers actions causing injury, death, or loss "because of a fall due to a condition existing in or on a merchant's premises." In due course, on January 28, 2007, the defendant filed a motion for summary judgment. A hearing on the defendant's motion was set for March 14, 2008, but upon motion filed by the plaintiff was continued until May 30, 2008. Thereafter, on May 22, 2008, the plaintiff filed a supplemental and amending petition, which for the first time raised the issue of spoliation.
The defendant's motion for summary judgment was heard on May 30, 2008. A judgment sustaining the motion, dismissing the plaintiff's claims under La.R.S. 9:2800.6, was signed June 11, 2008, and a hearing on the claim of spoliation, raised by the plaintiff's supplemental and amending petition, was set for July 23, 2008.
Subsequently, the defendant filed an exception of no cause of action and requested a continuance of the July 23, 2008 hearing until August 28, 2008. The continuance was granted without opposition, and, following the August 28, 2008 hearing, the defendant's exception was sustained and the plaintiff's suit dismissed with prejudice at her costs. The plaintiff appeals.
LAW AND DISCUSSION
The plaintiff slipped and fell on a spot of broken egg(s) in an aisle of the defendant's store. There was an employee stocking the end cap of the aisle. He was notified and he called another employee, Maria Romero, to the scene of the accident. The plaintiff alleges that Ms. Romero's action of cleaning up the broken egg(s) on the floor before the Brookshire's manager arrived and photographed the scene constituted spoliation of the evidence. The trial judge found that Ms. Romero's actions "fail[ed] to state a cause of action for spoliation of evidence." We agree.
Spoliation constitutes "a tort action against someone who has impaired the party's ability to institute or prove a civil claim due to negligent or intentional [destruction] of evidence." McCool v. Beauregard Mem'l Hosp., 01-1670, p. 2 (La. App. 3 Cir. 4/3/02), 814 So. 2d 116, 118. Thus, in order to state a cause of action in spoliation one must demonstrate two elements: (1) the intentional or negligent destruction of evidence and (2) that the first element was for the purpose of depriving the plaintiff of its use. See Kammerer v. Sewerage and Water Bd. of New Orleans, 93-1232 (La.App. 4 Cir. 3/15/94), 633 So. 2d 1357, writ denied, 94-0948 (La.7/1/94), 639 So. 2d 1163, citing Williams v. Gen. Motors Corp., 607 So. 2d 695 (La.App. 4th Cir. 1992).
*1281 In the trial court's Reasons For Judgment And Judgment the court stated:
In this case, there is no dispute that there was a broken egg(s) on the floor. The Summary Judgment was granted, not on the factual issue of the presence or non-presence of eggs, but rather on the issue of knowledge of the defendant and the temporal element required by law to make the defendant liable.
At least two of the defendant's employees saw the broken egg(s) on the floor. The defendant did not contest the presence of the broken egg(s). Ms. Romero's clean-up of the mess did not impair the plaintiff's cause of action under La.R.S. 9:2800.6. The following is well settled: "Imposition of liability under the theory of spoliation of evidence is inappropriate when the record reveals no intentional destruction of evidence for the purpose of depriving the opposing party of its use. Randolph v. General Motors Corp., 93-1983 (La.App. 1 Cir. 11/10/94), 646 So. 2d 1019; writ denied, 95-0194 (La.3/17/95), 651 So. 2d 276." Gordon v. State Farm Ins. Co., 97-270, p. 6 (La.App. 5 Cir. 9/30/97), 700 So. 2d 1117, 1120.
Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff/appellant, Aquiline Arnold.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567166/ | 255 S.W.2d 396 (1953)
DE LA GARZA et al.
v.
SALINAS et al.
No. 12510.
Court of Civil Appeals of Texas, San Antonio.
February 18, 1953.
*397 Magus F. Smith, McAllen, for appellants.
Royce A. Oxford and Joe V. Alamia, Edinburg, for appellees.
W. O. MURRAY, Chief Justice.
This is an election contest instituted by Rodolfo de la Garza, Leo J. Leo and Manuel Conde, as contestants, against Saragoza Salinas, Nieves E. Garcia and Ernesto Jackson, as contestees, seeking to have contestants declared to be elected to three places on the Board of School Trustees of the Tabasco Consolidated Independent School District of Hidalgo County, Texas.
Upon a hearing, the trial court rendered judgment in favor of contestees and contestants have prosecuted this appeal.
Appellants present only the following point:
"The trial court erred in refusing Contestants' motion to open the boxes containing the marked ballots and recount such ballots, because the uncontradicted testimony showed that the election officials were biased and prejudiced against Contestants and in favor of Contestees, the results as declared by the election officials were incorrect, having been arbitrarily set by such election officials without regard to the number of ballots cast for each candidate, and the results as declared by the election officials showed more ballots counted than were actually cast."
Appellants do not contend that they offered any evidence showing that illegal votes were cast and counted for appellees. Their only contention is that the ballots were not properly counted. In support of this contention they cited numerous irregularities and errors in the conduct of the election. They point out that Miss Florine Baker, presiding judge of the election, told Arturo Garza, a supervisor for appellants, "You go into the counting room where they are counting the votes." Arturo Garza testified, "She (Miss Baker) said that we were not to look at the ballots, that we were to have seats in the room where they were counting. She told us that we were to remain quiet and not say anything, that we were not to talk, and that if I saw anything wrong that I was to write it out." In so instructing the supervisors the presiding judge was stating fairly accurately the provisions of Article 3.05 Election Code, V.A.T.S., which provides in part as follows:
"* * * He shall not be permitted to enter into any conversation with the judges or clerks regarding the election while it is progressing, except to call the attention of the judges or clerks to any irregularity or violation of the law that he may observe. Such supervisor shall call the attention of officers holding such election to any fraud, irregularity or mistake, illegal voting *398 attempted, or legal voting prevented, or other failure to comply with law governing such election at the time it occurs, if practicable, and if he has knowledge thereof at the time."
The only mistake she made was in telling the supervisors they were not to see the ballots and that they could only make their complaints in writing. In instructing the supervisors that she had the authority of a district judge, the presiding judge was supported by the provisions of Article 8.05 of the Election Code, V.A.T.S., reading as follows:
"Judges of election are authorized to administer oaths to ascertain all facts necessary to a fair and impartial election. The presiding judge of election while in the discharge of his duties as such, shall have the power of the district judge to enforce order and keep the peace."
This supervisor also testified that on one occasion the tallying clerks were five votes apart on their counting and that this decrepancy was corrected by adding two votes to the votes of appellees and adding three votes to those of the appellants. It is apparent that this matter could have had very little effect on the total vote cast for each side, and in view of the fact that appellees were elected by a majority of more than eighty votes, according to the election returns, this instance could not have in any way affected the final result of the election. Appellants further contend that most of the election officials were either related to members of the School Board or were working for one Beto Reyna, who was supposed to be a political leader of the dominant faction in the school district and that all of the election officials belonged to the dominating political faction in the school district, and that no one was on the election board who was friendly to appellants. This constituted an illegality which could properly be considered by the trial judge in determining whether or not he would unseal the ballot boxes and recount the ballots, but it is not sufficient to require that he do so. Appellants further complain that the school superintendent, H. C. Baker, and the school tax collector, Chito Cavazos, were seen around the school house off and on during the time of the election. One of the supervisors overheard H. C. Baker instruct two of the clerks to get him "out of there," evidently meaning to get Arturo Garza out of the room where the votes were being counted. Both baker and Cavazos had offices in the school building where the election was being held, and their presence was explained by the fact that they were going to and from their offices. One of the appellants, Leo J. Leo, had made an election bet but had withdrawn it before the election, when he found out it was against the law. At the close of the election, Cavazos, the tax collector, who was not an election official, took charge of the election, figured up the results and announced such results. After the results were announced some one, probably one of the election officials, called Mr. Cavazos' attention to the fact that more votes had been counted than had actually been cast. Thereupon Cavazos went back into the room and started figuring again, and without recounting the votes announced different results. These results were certified as being the correct results. Arturo Garza, supervisor for appellants, testified that he was not permitted to look at the ballots to see how they were marked but that by stretching his neck he was able to see a few of the ballots but not many. The record does not show that he even requested the right to see the ballots as they were counted. He also admitted that he could have seen more. Appellants contend that more votes were counted than were actually cast, but it is shown that there were a number of absentee votes, and when these are added to the votes cast at the election the total vote, as declared by the election officials, does not exceed the total number of votes cast.
The trial judge who heard the testimony and saw the witnesses, refused to unseal the ballot boxes and recount the ballots. This was a matter largely addressed to his discretion, and his action will not be reversed upon appeal unless it be shown that he abused the discretion placed in him in such matters.
*399 We are cited to the case of Meriwether v. Stanfield, Tex.Civ.App., 196 S.W.2d 704, as authority supporting appellants' contention that the trial judge abused his discretion in not unsealing the ballot boxes and recounting the ballots. We are of the opinion that that case does not support the contention of appellants. It was a contest of a primary election, which is governed by the provisions of Chapter 13, art. 13.30 of the Election Code, V.A.T.S., while this case relates to a general election, governed by the provisions of Chapter 9 of the Election Code, V.A.T.S. In that case the trial judge unsealed the ballot boxes and recounted the ballots, and the question there presented was whether or not he had abused his discretion in doing so. Where the trial judge refused to unseal the ballot boxes and recount the ballots, the question is, did he abuse his discretion in so refusing? We are of the opinion that the evidence in this case is not sufficient to show that the trial judge abused his discretion in refusing to unseal and reopen the ballot boxes and recount the ballots. Unless he is shown to have abused his discretion, his determination of the matter is binding upon this Court.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567184/ | 255 S.W.2d 610 (1953)
JOHNSON
v.
JOHNSON.
Court of Appeals of Kentucky.
February 27, 1953.
*611 Shumate & Shumate, Irvine, for appellant.
E. B. Rose, Beattyville, for appellee.
STEWART, Justice.
Stella Johnson and Ed Johnson were married on December 29, 1911, and lived together until July 18, 1950, when they separated. On October 14, 1950, the husband instituted an action for divorce against the wife on grounds of cruel and inhuman treatment. The petition also asked that a small farm, which had been conveyed to both parties jointly, be restored to the husband and that the latter be awarded the custody of his 15-year-old son, Ed, Jr. By answer and counterclaim, after denying the husband's charges, the wife alleged the same grounds pleaded by the husband, prayed for a divorce and, in addition, sought to have vested in herself title to one-half of the land described in the petition as to value and to have alimony paid to her by her husband in such sums as the Chancellor might deem sufficient to support her in the manner to which she had been accustomed.
The Chancellor adjudged that the bonds of matrimony existing between the parties be set aside and held for naught and that "both be and they are hereby divorced from each other." The property described in the petition was found to be individually owned by Ed Johnson and it was ordered conveyed to him. Ed Johnson was directed to pay Stella Johnson $40 per month, subject to the further orders of the court. The father was given the custody of the boy.
Stella Johnson asks a reversal of the judgment for these reasons: First, the Chancellor should not have restored her interest in the farm to her husband; second, the allowance of alimony of $40 per month was inadequate; and third, the custody of Ed, Jr., was wrongfully awarded to the father.
On the 1st day of August, 1932, Ed Johnson purchased a small farm in Lee County for $1450 and had it conveyed jointly to himself and Stella Johnson. It is uncontradicted that the husband paid the full purchase price for the property out of his earnings. The basis of the wife's claim to an equal interest in the farm is that her husband had nothing when she married him and that the money used to buy the farm had been accumulated by their joint efforts. In this connection, she asserts she as a wife had not only performed her household duties but she had worked in the fields, thus assisting her husband to save up enough money to pay for the land.
We have held in many cases, the most recent being Eckhoff v. Eckhoff, Ky., 247 S.W.2d 374, that the services of a wife which result in helping her husband to amass a fund with which to buy property gives to the wife no legal right therein. The rendition of the type services we have described does not constitute a valuable consideration within the meaning of Section 425 of the Civil Code of Practice, which is the authority the court must rely upon to order a restoration. The husband is entitled to the benefit of his wife's domestic services and, counter-balancing this, the husband is legally obligated *612 to support his wife. Consequently, the court properly adjudged that Stella Johnson had no interest in the farm and restored the entire title thereof in the husband. See Fain v. Minge, 241 Ky. 131, 43 S.W.2d 504, and the many cases cited therein.
Coming now to a consideration of Stella Johnson's complaint that the Chancellor awarded her an insufficient sum of alimony under the evidence, we must explain at the outset that we are in no position to pass upon this question in a competent manner for the obvious reason that the record gives us no financial picture as regards Ed Johnson's actual worth or his earning capacity. Aside from the farm, which we have dealt with hereinbefore, counsel for Stella Johnson inform us in their brief that he owns a truck, but there is no proof as to what its value is. No other property besides the farm and the truck is mentioned. The evidence discloses Ed Johnson is employed "on Cave Fork (in Lee County) with the Gulf Refining Company." However, we are not told what he earns. Therefore, since we have not been furnished with any facts whereby we can determine with any degree of certainty that the award is insufficient, we can have no more than a possible doubt as to the correctness of the Chancellor's allowance in respect to alimony and we do not feel disposed to disturb the judgment under the circumstances. Butcher v. Butcher, 296 Ky. 740, 178 S.W.2d 616.
We are likewise not inclined to overrule the Chancellor's order bestowing upon the father the custody of the 15-year-old boy. The mother made no request for the custody of the boy in her counterclaim. The evidence reveals that when she separated from her husband and went to live elsewhere with two of her grown sons, she was content to allow Ed, Jr., to remain with his father. And the record does not indicate Ed Johnson is an unfit person to raise his son; it shows, in addition, that he has always supported the boy and for the past year or more he has been providing him with an education at Annville in Jackson County. We conclude the Chancellor did not abuse his discretion when he awarded the custody of the boy to his father. As the boy is 15 years of age we believe his wishes are entitled to some weight in determining which parent shall have the custody of him, if this issue should be reopened later. See Wright v. Thomas, 306 Ky. 763, 209 S.W.2d 315.
Wherefore, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454523/ | 253 P.3d 1081 (2011)
242 Or. App. 177
STATE
v.
CLAVETTE.
No. A146408
Court of Appeals of Oregon.
April 6, 2011.
Affirmed Without Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1778421/ | 726 So. 2d 725 (1999)
Henry MALONE
v.
Towanda M. GAINEY.
2980137.
Court of Civil Appeals of Alabama.
January 15, 1999.
Ronnie L. Williams, Mobile, for appellant.
No brief filed for appellee.
THOMPSON, Judge.
In January 1998, Towanda Gainey filed an action in the district court of Mobile County, alleging unlawful detainer against Henry Malone in connection with a house owned by Gainey. The district court ruled in favor of Gainey, and Malone appealed to the Circuit Court of Mobile County. On April 1, 1998, the circuit court entered an order finding that Gainey was entitled to the relief she sought in her complaint. In that order, the trial court also ordered that Malone could file a claim to recover payment for improvements made to the property.
On April 9, 1998, Malone filed a list of his claim of damages for improvements or repairs he made to the property. On April 16, 1998, Malone filed an amended answer and a counterclaim, in which he sought specific performance of an alleged contract to purchase the house from Gainey.
On April 30, 1998, the trial court again took testimony in this case. Before the court heard testimony, Gainey's attorney reminded the judge that although Malone had filed a counterclaim, the purpose of that hearing was to determine whether Gainey owed Malone money for repairs or improvements to the property. Gainey's attorney stated that he was prepared to go forth with the limited inquiry on the issue of damages.
The April 30, 1998, hearing was conducted on the issue of damages. On that same date, the trial court entered an order finding that Malone had incurred no expense in regard to improvements to the house, and it entered a judgment in favor of Gainey. Malone filed a "motion to reconsider"[1] that order. After the expiration of 90 days, Malone appealed, apparently assuming that his "motion to reconsider" had been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.[2] The Supreme Court of Alabama *726 transferred the appeal to this court, pursuant to § 12-2-7, Ala.Code 1975.
However, the trial court did not address Malone's counterclaim for specific performance in its April 30, 1998, order. In Posey v. Posey, 614 So. 2d 1041 (Ala.1993), our supreme court dismissed an appeal where the trial court made no factual findings on one of the plaintiff's claims and where the trial court failed to mention the claim in its order. In Posey, the trial court had stated in its order that "`all claims not herein adjudicated are denied.'" Posey v. Posey, 614 So.2d at 1042. Our supreme court, noting that it did not appear that the trial court had considered the merits of the claim, held that, "[I]t is fundamental to the proper exercise of judicial authority that such authority not be exercised to render a decision that is res judicata as to a claim, absent a consideration of the merits of the claim." Id. The supreme court held that in spite of the language of the judgment, the plaintiff's claim had not been considered "by implication or otherwise"; the court dismissed the appeal as being from a nonfinal judgment. Id.
The trial court's order did not address Malone's counterclaim. The record indicates that the merit of Malone's counterclaim was not argued at the April 30, 1998, hearing and was not considered by the trial court. Therefore, Malone's counterclaim is still pending before the trial court for a resolution. We must dismiss this appeal as being from a nonfinal judgment.
DISMISSED.
ROBERTSON, P.J., and YATES, MONROE, and CRAWLEY, JJ., concur.
NOTES
[1] The Alabama Rules of Civil Procedure do not provide for a "motion to reconsider." However, when a motion is so styled, it is treated as a Rule 59(e) motion to alter, amend, or vacate a judgment if its substance complies with the requirements for a post-trial motion under that rule. Ex parte Alfa Mut. Gen. Ins. Co., 684 So. 2d 1281 (Ala.1996); Ex parte Johnson, 673 So. 2d 410 (Ala.1994).
[2] We note that a Rule 59 motion may be made only in reference to a final judgment or order. Rule 59(b) and (e), Ala. R. Civ. P.; Nelson v. Landis, 709 So. 2d 1299, n. 1 (Ala.Civ.App.1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2743252/ | IN THE SUPREME COURT OF PENNSYLVANIA
In the Matter of : No. 2087 Disciplinary Docket No. 3
:
ROGER P. FRYE : Board File No. C1-14-515
:
: (Supreme Court of New Jersey,
: D-58 September Term 2013)
:
: Attorney Registration No. 25717
ORDER
PER CURIAM:
AND NOW, this 15th day of October, 2014, Roger P. Frye having been
disbarred from the practice of law in the State of New Jersey by Order of the Supreme
Court of New Jersey dated May 20, 2014; the said Roger P. Frye having been directed
on August 21, 2014, to inform this Court of any claim he has that the imposition of the
identical or comparable discipline in this Commonwealth would be unwarranted and the
reasons therefor; and no response having been filed, it is
ORDERED that Roger P. Frye is disbarred from the practice of law in this
Commonwealth and he shall comply with all the provisions of Rule 217, Pa.R.D.E. | 01-03-2023 | 10-16-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3345488/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
In these three appeals the Plaintiff is Mr. Jerry Herring doing business as Jerry's Auto Center, 3054 Main Street, Hartford. The Defendant in all three cases is the State of Connecticut Department of Motor Vehicles (hereinafter DMV).
The Plaintiff in each case appeals from DMV decisions finding violations of law with respect to Plaintiff's sale of used automobiles. The Plaintiff is aggrieved as to each case in that civil penalties and license suspensions are imposed by each decision.
The Plaintiff appears pro se in these appeals and in each case alleges that the decisions "are in violation of constitutional and statutory provisions, made upon unlawful procedure, and clearly erroneous in view of the reliable, probative and substantial evidence on the record." Plaintiff's briefs argue the evidentiary basis of the decisions. Issues raised in the appeal which are not briefed are viewed as abandoned. Collins v. Goldberg, 28 Conn. App. 733, 738 (1992).
A basic principle of administrative law is that the scope of the court's review of an agency's decision is very limited. General Statutes § 4-183 (j) provides that "[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact . . . The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced CT Page 9956 because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." In order to obtain reversal of an agency's decision, the plaintiff must demonstrate that he suffered "material prejudice as a result of this alleged procedural deficiency." Jutkowitz v. Departmentof Health Services, 220 Conn. 86, 94 (1991).
Furthermore, "Judicial review of conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." Conn. Light Power Co. v. Dept. of Public UtilityControl, 219 Conn. 51, 57-58 (1991). Similarly, "[w]ith regard to questions of fact, it is [not] the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency." Id. "The question is not whether the trial court would have reached the same conclusion but whether the record before the commission supports the action taken." Hospital of St. Raphael v. Commission on Hospitals Health Care, 182 Conn. 314, 318 (1980).
"Judicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, 4-166 through 4-189), and the scope of that review is very restricted . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency] . . . The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion." (Citations and internal quotation marks omitted.) Board of Education v. Freedom of InformationCommission, 208 Conn. 442, 452 (1988).
Nevertheless, where "the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." United Parcel Service. Inc. v.Administrator Unemployment Compensation Act, 209 Conn. 381, 385
(1988). CT Page 9957
In Docket No. CV96-0558845 the DMV hearing officer found that Plaintiff, on or about June 29, 1995, sold a 1984 Honda automobile to Quiana W. Maragliano. At the time of the sale the vehicle had: a) a cracked windshield, b) unsafe brakes, c) a broken door hinge and d) leaking struts. That the vehicle sold in "as is" condition was sold subject to supplemental assignment of ownership form signed by Plaintiff; indicating that the vehicle was "at the time of sale in condition for legal operation on the highway(s) of the State."
The hearing officer found that Plaintiff had violated General Statutes § 14-64 (4) by making a false statement regarding the condition of the vehicle at the time of sale.
The evidence established that a motor vehicle inspector personally observed the cracked windshield and broken door hinge in August of 1995. A September 5, 1995 inspection report identifies the four defects. The purchaser's father also testified about the car's condition. The DMV inspector also testified as to hearsay reports from the purchaser, her mother and the repair shop owner. The hearsay evidence substantiated the claims as to the condition at the time of sale. The vehicle had been at repair shop since early July of 1995.
The DMV inspector further testified as to the conditions of the assignment of ownership form conditions.
Plaintiff testified that the windshield was not cracked and stressed the "as is" and "no warranty" nature of the sale.
The Court finds that the record contains evidence substantiating the hearing officer's finding in Docket No. CV96-0558845.
In Docket No. CV96-0558846 and Docket No. CV96-0558847 the Plaintiff was found to have violated General Statutes § 14-64 (5) unfair or deceptive practices; § 14-64 (5) Plaintiff can no longer be considered qualified to conduct licensed business and § 14-62 (c) failing to furnish the buyer at time of sale a valid certificate of title.
In Docket No. CV96-0558846 the Plaintiff failed to appear at the hearing. The evidence established that Plaintiff sold a 1984 Honda Accord automobile to Sharon Coletosh. The agreement was CT Page 9958 entered on June 1, 1995 for $2,084, with a $700 downpayment. The balance was paid by Ms. Coletosh through August 11, 1995. Ms. Coletosh never received the vehicle.1
The evidence in the documents submitted along with the testimony of Ms. Coletosh and the DMV inspector substantiates the hearing officer's findings.
Plaintiff asserts that he refunded Ms. Coletosh's money and she withdrew her complaint shortly after the hearing.
The law only allows the Court to review the findings based on the evidence in the Record.
In any event, the violations which occurred with regard to the transaction involving Ms. Coletosh were not cured by a subsequent refund.
In Docket No. CV96-0558847 the undisputed facts establish that the Plaintiff sold, on or about June 11, 1995, a 1985 Honda Civic automobile to Ms. Audrey Williams. The vehicle was not at the time of the sale or subsequently delivered to Ms. Williams. Ms. Williams paid in full for the car and has never received a car or refund.
The Plaintiff failed to appear at the hearing after receiving adequate notice.
Plaintiff alleges that he was trying to repair the vehicle so that it could pass inspection, and that it was stolen from his lot.
The Plaintiff never provided Ms. Williams with a certificate of title for the vehicle, which never passed DMV inspection.
The hearing officer's conclusions that the Plaintiff, regarding this transaction engaged in deceptive or unfair practices and failed to provide a certificate of title are fully supported by the Record.
The conclusion that the Plaintiff can no longer be considered qualified to conduct the licensed business is supported by the undisputed evidence.
The Plaintiff's Appeals are dismissed CT Page 9959
Robert F. McWeeny | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2460189/ | 258 P.3d 527 (2011)
350 Or. 571
STATE
v.
SPRY.
(S059534).
Supreme Court of Oregon.
July 28, 2011.
Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567220/ | 255 S.W.2d 520 (1953)
WILSON
v.
STATE.
No. 26263.
Court of Criminal Appeals of Texas.
March 4, 1953.
*521 Justice, Justice & Rowan, Wm. Wayne Justice, Athens, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
DAVIDSON, Commissioner.
This is a conviction for unlawfully selling whisky in a dry area, with punishment assessed at a fine of $200 by reason of a prior conviction of an offense of like character, under Art. 61, Vernon's Ann. P.C.
The sale was alleged to have been made to Levi Head, who testified that he purchased two pints of whisky from appellant at her home and that almost immediately after the appellant had delivered him the whisky he was taken into custody by Brownlow, a deputy sheriff, and taken to jail. Appellant denied the sale.
Notwithstanding the fact that appellant had invoked the rule as to all witnesses, the trial court refused to require Deputy Sheriff Brownlow, who arrested the witness Head at the home of appellant, to be placed under the rule, and Brownlow remained in the courtroom during the trial, heard all the witnesses testify in the case, and, over appellant's objection, was permitted to testify as to facts occurring at the time of the alleged sale and at the time he took the witness Head into custody together with the two pints of whisky.
Brownlow's testimony directly corroborated that of the witness Head and contradicted the testimony of the appellant upon the issue of appellant's guilt or innocence.
Appellant's request for the rule invoked the provisions of Art. 644, Vernon's Ann.C.C.P., which reads as follows:
"At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under rule."
This right to have witnesses separated and excluded from the courtroom during the introduction of testimony is a material right which is said to be a heritage of the common law and originating in the History of Susanna, a book of the Apocrypha.
It has been the long and repeated holding of this court that the right stated under Art. 644, Vernon's Ann.C.C.P., hereinbefore referred to, is directory rather than mandatory and that trial courts are given much latitude, as a matter of discretion, in the enforcement thereof. Especially is that true when the witness who is exempted from the rule is, as here, an officer of the court. This discretionary power of the trial court was, by the legislature, expressly enacted into Art. 645, Vernon's Ann.C.C.P., by the codification of 1925.
Our review, here, is to determine whether the trial court has abused his discretion in exempting the witness Brownlow from the rule and permitting him to testify.
The bill of exception certified that "Except for his testimony, the presence of the witness, J. W. Brownlow, in the courtroom was not necessary to the transaction of the court's business." It is further certified in the bill of exception that another deputy sheriff acted as bailiff and was at all times in attendance upon the court.
By this certification the trial court rendered inapplicable the rule announced by those cases which hold that the trial court *522 is warranted in excusing from the rule officers of the court the presence of whom is deemed by him to be necessary or incident to the operation of the court or the trial.
Hence the question narrows itself as to whether, under the immediate facts, the trial court abused his discretion in permitting the witness Brownlow to remain in the court room during the trial, hear the testimony of the one witness for the state and that of the appellant, and then take the witness stand and testify to facts directly corroborating the state's witness and contradicting the appellant upon a question of fact in the case upon which the guilt or innocence of appellant was drawn before the jury.
No good reason, or excuse, or justification for refusing to enforce the rule is here shown.
If the court had qualified the bill, certifying that the officer witness was needed to maintain order in the courtroom or otherwise assist the court during the trial, and, knowing the high character and integrity of the witness, decided he could be excused from the rule, an abuse of discretion would not be shown.
The conclusion is expressed that the trial court abused his discretion in excusing the state's witness Brownlow from the rule.
The judgment is reversed and the cause is remanded.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567215/ | 255 S.W.2d 177 (1953)
UNIVERSITY INTERSCHOLASTIC LEAGUE
v.
MIDWESTERN UNIVERSITY et al.
No. A-3802.
Supreme Court of Texas.
February 25, 1953.
*178 Hart, Brown & Sparks, J. H. Hart, Austin, for petitioner.
Guy Rogers and Pierce & Gant, Wichita Falls, for respondents.
BREWSTER, Justice.
Midwestern University sued Wichita Falls Independent School District and University Interscholastic League for specific performance of an alleged written contract. We shall refer to these parties as "Midwestern", "the District" and "the League", respectively. Midwestern got judgment in the trial court, and the Court of Civil Appeals affirmed. 250 S.W.2d 587.
For use by its schools, the District owned a football field known as Coyote Stadium. Hardin College, Midwestern's predecessor, had no playing field, so it began negotiations with the District for the use of Coyote Stadium. On April 10, 1947, these negotiations terminated in a written contract, the provisions of which relative to the issues before us were as follows:
After reciting that a joint meeting had been held on March 24, 1947, by the trustees of the District and Hardin College, at which it was agreed "that Hardin College is to use Coyote Stadium for its football games", the contract recites that "the following terms are, therefore, agreed upon: (1) The Hardin College shall use the Coyote Stadium for a period of ten (10) years and for that use will pay annually to the * * * District the sum of $5,500, conditioned upon playing a home schedule of six (6) football games per year. (2) Should Hardin College desire to play more than six (6) football games in any one football season, it is agreed that they will pay $600.00 for each additional game played at Coyote Stadium * * *. (3) Hardin College is to receive credit on the per cent paid by the Concessionaire for all games played under its name at Coyote Stadium * * * and this percentage will be credited to Hardin College for each of its games played during this season * *. (6) Hardin College agrees to pay the costs of all electricity as a result of staging its football games at Coyote Stadium * * *. (7) All expense in connection with policing its games will be cared for by the Hardin College * * *." (All italics ours.)
Later Hardin College became Midwestern University. Consequently, on May 19, 1950, the governing bodies of Midwestern and the District executed a written contract which was identical with the Hardin College contract, except that paragraph (1) was changed to substitute "Midwestern University" for "Hardin College" and "seven (7) years" was substituted for "ten (10) years".
Prior to 1951 the Maskat Temple of the Shrine had sponsored a football game, known as the Oil Bowl All Star game, annually in Coyote Stadium. This game was between high school stars from Texas and Oklahoma who had graduated from high schools but had not entered college. The net proceeds were devoted to charities through the agency of Maskat Temple.
The League was first organized in 1910, at the State Teachers' Meeting in Abilene. Since then it has been organized annually under the auspices of The Bureau of Public School Service, Division of Extension, the University of Texas. During its first year the League's activities were confined to debates among the high schools affiliated with the University of Texas. For the second year declamation was added and through the years since, its activities in the field of interscholastic competition have spread into many and varied subjects, e. g., choral singing, extemporaneous speech, one-act plays, story telling, music appreciation, spelling, typewriting, shorthand, tennis, football, track, and numerous others. *179 Its original membership of 28 schools had grown to 2,647 schools in 1951, despite the many school consolidations effected during those years. Its scope is thus stated by the League in an introduction to its Constitution and Rules published in 1951: "This League covers a larger geographical area, serves more different types of schools, schedules a greater variety of contests, holds larger and a larger number of meets, and enjoys a greater school-membership than any similar organization in the United States." Its importance in the public school life of the state is alleged in the District's answer in the trial court to be so great that, while membership in the League is "technically" voluntary, it is actually compulsory. "The nature and scope of the membership of the Interscholastic League is such that were a school not to belong to the League and compete according to its rules, it would be effectively placed in a position of being unable to hold competitive football athletics during the current year, and that thereby both the scholastic and educational benefits of good citizenship and good sportsmanship which are derived from competitive sports would be lost unto the said school and its students. It is therefore a duty, if not a public mandate, that the school district and its agencies, the schools, maintain such membership * * * for the benefit of the students and the public of the area."
In April, 1951, by mail vote, the member schools of the League adopted League Rule No. 34, which provides: "All Star Games. No athletic director, coach, teacher or administrator of a member-school shall at any time assist either directly or indirectly with the coaching, management, direction, selection of players, promotion, officiating or allow public school facilities or equipment to be utilized in any all-star game (exception Texas High School Coaches Association game), in which one or more of the competing teams is composed of a player or players who, during the previous school year, were members of a high school football team. Any member high school violating the provisions of this all-star contest rule shall be subject to probation or suspension. (Effective school year 1951-52.)"
The District participated in this election by voting "No." But, with knowledge that the Rule had been adopted as a part of League's Rules for 1952, by which it would be bound, District's high school on November 14, 1951, applied for, and got, membership in the League for 1952, after its principal had signed this written statement: "We hereby accept the University Interscholastic League High School Football Plan for 1952 and agree to abide by all the rules and regulations set forth in the Constitution and Rules." Shortly before this and because of Rule 34 the District had refused a request by Maskat Temple for a booking of the Oil Bowl Charity Game for August, 1952; and, upon subsequent application by Midwestern for such booking under its contract, District had petitioned League for a ruling as to whether, to permit "Midwestern and Shrine Temple to use the facilities at Coyote Stadium to stage the Oil Bowl Game", under its agreement with Midwestern, would violate Rule 34; and District had been advised in a letter from League's Director under date of October 11, 1951, that its executive committee had ruled that the proposed use of Coyote Stadium would violate Rule 34.
On February 9, 1952, the president of District's Board received a letter from Midwestern's president, which stated: "This is to advise you and your Board that Midwestern and the Oklahoma Coaches Association will sponsor the Oil Bowl Charity Game in Wichita Falls this year. We will play the game Friday night, August 29, 1952, in Coyote Stadium under the terms of our contract for the use of the Stadium. This game will be one of our regular season games."
After receiving this notice the District again appealed to the League's Executive Committee for advice "in order that the Wichita Falls Schools may protect our rights under the League Football Plan, of which we are a part," and was again advised that such use of Coyote Stadium would violate Rule 34. District's board *180 president then wrote Midwestern's president stating the League's ruling and concluding, "I am officially communicating this information to you with the statement that it will be impossible for the Board of Education of the Wichita Falls Independent School District to allow the use of Coyote Stadium for staging the Oil Bowl Charity Game under the terms of the contract which we have with your institution for the use of Coyote Stadium. I regret that it becomes necessary to make this statement, but in light of the ruling made by the Interscholastic League we have no other alternative."
On March 25, 1952, Midwestern brought the issue to a head by filing this suit. Under its trial pleadings, its second amended original petition, it sought specific performance of its contract with the District to the end that Coyote Stadium be made available to it for August 29, 1952, "and at such dates during such succeeding years as may be designated", and that a mandatory injunction issue requiring the District to permit such use. It prayed also that the League be permanently enjoined (1) from interfering with University's use of Coyote Stadium on August 29, 1952, and "such dates in such years as may be designated during the life of the contract", and (2) from in any manner penalizing the District or any of its schools under the provisions of Rule 34.
Following a general denial, the District specially denied having made or being bound by any contract with Midwestern providing for any football game in Coyote Stadium under Midwestern's sponsorship wherein neither participating team is that of Midwestern. Then it pleaded that the letters and agreements relating to Midwestern's use of the stadium distinctly say the use shall be "for staging its football games" or for "playing a home schedule of six football games per year"; that established usage for over 30 years provides that the playing of a home game by a school's team necessitates that all members of the team be students of the school sponsoring the game with definite minimum scholastic qualifications; that Midwestern "has already" scheduled and published six home games for the 1952-1953 season, and that neither on that schedule nor elsewhere does the Oil Bowl Game appear as a game sponsored by Midwestern.
The District further pleaded that, if mistaken in the above allegations and subject thereto, and in the event it be found that the District is under contract with Midwestern which gives the latter the right to schedule and sponsor the Oil Bowl Game, the District "will be placed in a position of unnatural jeopardy" in that if it refused to perform the contract it would be liable in damages to Midwestern, whereas if it permits the game to be played it will be liable to suspension or expulsion by the League, under Rule 34. Then after pleading the advantages of League membership, some of which we have stated above, it says it is entitled to be protected "from such a position of jeopardy", the gravity of which "is a matter of public concern". It concludes with a prayer for a permanent injunction restraining the Leadue from inflicting any penalties against it under Rule 34, if the court concludes that it is under contractual obligation to permit Midwestern to sponsor the Oil Bowl Game in Coyote Stadium.
In answer to Midwestern's allegations, the League pleaded that the contract between Midwestern and the District in no sense binds the District to permit the Oil Bowl Game to be played in Coyote Stadium. As against both Midwestern and the District, it pleaded the circumstances attending the adoption of Rule 34, the District's knowledge of, and participation in, its adoption and the District's voluntary acceptance of the Rule by its later application for, and acceptance of, League membership for 1952.
After trial without a jury, the trial court entered judgment for Midwestern against both the District and the League and for the District against the League and recited that the contract between Midwestern and the District "is specially enforced by this court and directed to be carried out according to its terms for the period therein covered." Accordingly, it granted Midwestern a mandatory injunction against the District requiring the latter to carry out the contract, including making available *181 to Midwestern "the use of Coyote Stadium for August 29, 1952, and such other dates during the contract period as may be designated" by Midwestern. It also enjoined the League from "in any manner interfering with the performance of the above contract by the parties thereto" and from "in any manner inflicting sanctions upon" the District and "from using expulsion, suspension or probation of any of its (District's) public schools from membership" in the League, because of its performance "in whole or in part of its contract with Midwestern University as specifically enforced above."
To this judgment both the League and the District duly excepted and gave notice of appeal. But only the League filed an appeal bond.
However, in a brief filed in the Court of Civil Appeals, which it calls a brief for appellee, the District did assign error in the trial court's holding that the contract between the District and Midwestern gives the latter a right to use Coyote Stadium for the Oil Bowl Game on August 29, 1952, and on such subsequent dates during the contract period as Midwestern may designate, irrespective of the fact that Midwestern's own team may not be a contestant therein. To that extent it made common cause with the League which, as appellant, urged the same error as its first point in the Court of Civil Appeals.
The Court of Civil Appeals held that there was no error in the trial court's judgment as to Midwestern's contractual right to sponsor the Oil Bowl Game in Coyote Stadium on August 29, 1952, and on such subsequent dates throughout the life of the contract as Midwestern may designate. Its discussion of the language of the contract which it thought to support that conclusion is as follows: "The contract itself does not specifically say that games other than the six shall be played by the teams of appellee, yet there are words in effect in the contract, such as quoted in paragraph (3), which may be construed to mean that appellee could sponsor as many games in the stadium as it cared to pay for, provided the schedule of such games did not interfere with the use of such stadium by its owner." [250 S.W.2d 590.]
Both the League and the District (the latter as a respondent) are here attacking that holding, by appropriate points of error.
It will be observed from the quoted language of the Court of Civil Appeals that it based its conclusion on the terms of the contract, without any suggestion that the contract is ambiguous. We are in accord with that approach, as we find no ambiguity in the contract. In that situation, it is elementary law that the intention of the parties to a written instrument is to be determined by the language of the instrument as a whole. Applying that principle, we find no support for the conclusion reached by the courts below.
We have quoted all the language in the contract which has any relation to the question before us. The contract recites that at a meeting of the trustees of the District and Hardin College it was agreed that the latter "is to use Coyote Stadium for its games", for a period of 10 years, and for "that use" was to pay $5,500, "conditioned upon playing a home schedule" of 6 games; if it should elect "to play" more than 6 games in any football season it was to pay $600 for each additional game played; Hardin College was to "receive credit on the per cent paid by the concessionaire for all games played under its name" at the stadium, this percentage to be "credited to Hardin College for each of its games played during this season"; Hardin College was to pay the cost of all electricity used as a result of staging its football games at Coyote Stadium and all expenses incurred in policing its games. All this language was incorporated in the contract between Midwestern and the District on May 19, 1950. (All italics ours.)
The contract declares the basic agreement reached by the governing boards of Hardin College and the District was that the former is to use the stadium for its football games, upon "the following terms". This language clearly can mean no more than that the contracting parties intended *182 that Hardin College should use the stadium for games in which its team was a participant. And there is nothing in "the following terms" that can be considered as expressing any other intention. That it was to pay District $5,500 annually for use of the stadium, conditioned upon a home schedule of games per year, means games played by its own team. Such is the common understanding of the words home schedule, but if there can be any doubt about that it is dispelled by the language immediately following term (1) of the contract: "(2) Should Hardin College desire to play more than six (6) football games in any one football season, it is agreed that they will pay $600.00 for each additional game played at Coyote Stadium". Certainly Hardin College could not play a football game except through the agency of its own team. The same import must be ascribed to the repetition of the words its games in terms (6) and (7) of the contract relating to operational costs. No contrary meaning can be gleaned from the language of term (3) of the contract that "Hardin College is to receive credit on the per cent paid by the Concessionaire for all games played under its name at Coyote Stadium". Following this language the contract recites that the sums to be paid for concessions at stadium games vary with the years; that the agreement for 1947 provides for 25 per cent of gross receipts. Then follows the provision which renders clear the meaning of the phrase "all games played under its name" quoted above. It is that this percentage (25%) "will be credited to Hardin College for each of its games played during this season." (Italics ours.)
As successor to Hardin College, Midwestern agreed to all the terms of the contract, except for the number of years it should run; hence its right to use of Coyote Stadium must be determined thereby. It follows that Midwestern had no right under its contract to require the District to let it use Coyote Stadium for the Oil Bowl Game on August 29, 1952. Nor has it any contractual right to use Coyote Stadium at any time throughout the life of its contract, except for games in which its own team is a participant.
In view of our conclusions, it becomes unnecessary to consider any other propositions urged by Midwestern except one, which is that there is no point of error properly raising the question of the true meaning of its contract with the District. Its reasoning is that the trial court impliedly found, and the Court of Civil Appeals expressly found, that the contract gave Midwestern the right to sponsor and use the stadium for the playing of the Oil Bowl Charity Game, to sustain which finding there is "abundant record evidence"; that, therefore, to raise the matter there must be a point suggesting either a want or insufficiency of the evidence; and that since there is no such point anywhere in the record, the question is not before this court. It is enough to say that, in this case, the construction of the contract is not a question of fact but is a question of law, which is adequately raised by both the District and the League.
In its several well-written briefs and arguments the District urges numberous contentions against the validity of Rule 34. They are summarized in its answer to League's application for writ of error under what it designates as "Respondent's Topical Contentions". There are five of these. We have resolved the first in District's favor in holding that its contract with Midwestern does not give Midwestern the right to use Coyote Stadium for playing or sponsoring any games except those in which its own team is a contestant. The other four contentions are: (2) That the District and the schools of Texas are quasi public entities subject to direct statutory control by the Legislature of Texas under the constitution of this state, citing Arts. 2780 and 2656, R.S.1925; (3) that the District, as a matter of legal right conferred by our statutes, has within its discretionary power the right to say who shall use Coyote Stadium and for what purpose; therefore, the election to permit or forbid the playing of the Oil Bowl Game is within the statutory discretion of District's trustees, irrespective of sponsorship, citing Art. 2780, supra; (4) that District's administrative employees have no authority to bind the District, their principal, without direct authority *183 "or via the Board of Education as provided in" Art. 2656, R.S.1925; that even District's trustees, a quasi government agency, have no authority either to "sub-delegate" their powers or to make any contract which renders them incapable of performing their public duty or exercising their statutory discretion; (5) "that there is no statute nor law forbidding the principals and athletic directors of high schools who are maintained by Independent School Districts in the State of Texas from joining voluntary athletic or scholastic associations for the purpose of furthering their public school purposes. That there is no law forbidding the trustees of an Independent School District from allowing their teachers (their employees and co-employees with the State of Texas and State Department of Education) from entering into such associations and agreeing to abide by their rules, and so abiding by their rules; provided such does not interfere with the performance of their duties to the public."
It would seem that this Topical Contention (5) effectively disposes of the other three and leaves only decision of the question whether District's trustees, in taking membership in the League under an agreement to abide by its rules, have prevented the performance of their duties to the public to be interfered with, as stated in the provision, which District has emphasized by italics.
Nobody can question that the public schools of this state "are quasi public entities and are subject to direct statutory control" by the Legislature. But it would be impracticable, if not impossible, for the Legislature to resolve all the minute problems inevitably arising in the operation and management of public schools; so, as the District recognizes in its Topical Contention (3), supra, it has delegated those duties to the local trustees by such enactments as Art. 2780, supra, including (as to District's trustees) the discretionary power to say who shall use Coyote Stadium and for what purpose. We are in accord with that proposition as well as the holding in Southwestern Broadcasting Co. v. Oil Center Broadcasting Co., Tex.Civ.App., 210 S.W.2d 230, error refused, N.R.E., cited by the District in support, that an independent school district, as a quasi municipal corporation, has the right to seek a profit out of football games played on its premises; in the exercise of which it has the same freedom as a private person or corporation in putting on the games, when that freedom is exercised to further the interests of the district.
The proposition in Topical Contention (4), supra, that the administrative employees of an independent school district cannot bind the district in the absence of direct authority is of no moment because it is abundantly established by the undisputed evidence that District's trustees themselves negotiated the contract with Hardin College as well as the later contract with Midwestern. That the action of District's High School in joining the League with knowledge of Rule 34 and its limitations on District's use of Coyote Stadium for all-star games, by consent of its athletic director, coach, teacher or administrator, was regarded by the District as its own is clearly shown by the fact that, because of Rule 34, the District refused both Maskat Temple and Midwestern use of the stadium for the Oil Bowl Game after corresponding twice with League's Executive Committee about the effect of Rule 34; and by the further fact that the final dinial of Midwestern's demand was a letter from the president of District's Board of Education "officially communicating" the information that it was impossible for District's Board to allow use of the stadium for the Oil Bowl Charity Game "under the terms of the contract which we have with your institution."
So District's contentions come down to this question: Did the action of District's trustees in taking membership in the League and agreeing to abide by its rules interfere with the performance of their duties to the public?
The advantages offered by the League to its members are so many and so extensive that both the president of District's Board and its superintendent "testified under oath on the stand that they felt it a part of their duty in office to see that their high school was a member" of the League. The superintendent swore that he considered *184 "such items as debates, and one-act plays, and the various other items under the jurisdiction of the League's mandates, to be important to the education" of the children of his district; that he likewise thought that the playing of high school football is "good for the general educational picture"; that he deemed it his duty and obligation to furnish his students with those facilities; and that he "preferred not to have any part of a School District that wasn't a member of the Interscholastic League."
These advantages exist, it must be remembered, despite Rule 34. The advantages of District's affiliation with the League being so overwhelming that it asserts that it joined under compulsion, rather than voluntarily, and as a matter of public duty, it simply cannot be plausibly maintained that its membership and consequent agreement to abide by Rule 34 interfered with the performance of the duties owed by the District and its officers to the public. Certainly when the advantages of membership, as described by the District itself, are weighed against the burdens incident to membership which, concretely stated, are that its high school cannot permit use of its stadium for the Oil Bowl Game, hence will lose $600 and such other advantages as might incidentally be enjoyed by the District, the advantages far outweigh the burdens. This the District frankly recognizes in its pleadings and its arguments as well as by its action in joining the League. Therefore, we hold that the restriction imposed by Rule 34 is valid and cannot be enjoined. In this conclusion we neither ignore nor minimize the high purpose which the playing of the game would serve by the application of the net proceeds to charity. But that fact has no bearing on the question before us.
Contention is made by the District, alternatively to the question just decided, that Rule 34 is not uniform in its application and is discriminatory in that it excepts from its ban of all-star games, the all-star game sponsored by the Texas Coaches Association. We see no discrimination or lack of uniformity in the respect indicated. Under the Rule, any member of the League may permit the playing in its stadium of the all-star game sponsored by the Texas Coaches Association; no member may permit any other all-star game to be played in its stadium.
The judgments below are reversed and judgment is here rendered that Midwestern take nothing as against either the League or the District and that the District take nothing as against the League.
Costs are taxed two-thirds against Midwestern and one-third against the District.
CULVER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567409/ | 579 S.W.2d 7 (1979)
Jack Adams McDOLE, Appellant,
v.
The STATE of Texas, Appellee.
No. 56734.
Court of Criminal Appeals of Texas, Panel No. 2.
April 4, 1979.
*8 Dick DeGuerin, Houston, for appellant.
Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and William E. Taylor, III, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, ROBERTS and ODOM, JJ.
OPINION
DOUGLAS, Judge.
Jack Adams McDole appeals his conviction for possession of cocaine. Punishment was assessed by the court at twelve years. McDole's sole contention on this appeal is that the cocaine was seized as a result of an illegal warrantless search. We agree and reverse.
The evidence concerning the legality of the search was developed at both a pre-trial suppression hearing and in greater detail at the trial. We will consider the evidence of both in reviewing the validity of the search. See Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977).
The facts were established primarily through the testimony of Officer J. J. Reyes. He testified that, during the early evening of September 8, 1975, he received a telephone call from a confidential informant who had given his reliable information on three previous occasions. The informant stated that a possible "deal" was going to happen later that night. At 10:15, the informant called and stated that he had just left the apartment of Gary Mafrige and that there was a quantity of cocaine in the apartment. Reyes began to prepare the search warrant application and sent two officers out to the scene to set up a surveillance. At 10:30 p. m., Reyes was "partially half-way through" the warrant when he called Justice of the Peace Larry Wayne to determine his availability to sign the warrant and to ask if he had sufficient probable cause. At 10:31 p. m., while still on the telephone with Wayne, the informant called again to say that the people in the apartment would soon be leaving. Reyes informed Wayne of this and Wayne told Reyes to go ahead and search the apartment. Reyes abandoned his efforts to obtain the search warrant. Some time between 10:55 p. m. and 11:00 p. m. he and several other officers arrived at the Mafrige apartment and met with the officers who set up the original surveillance. Twenty minutes later they entered the apartment, conducted a warrantless search and arrested all of the occupants. Reyes also testified that it would take between sixty and ninety minutes to obtain a warrant.
In most cases our State and Federal Constitutions prohibit a search of a private residence without a search warrant. Article 1, Section 9, Texas Constitution; Amendment Four, United States Constitution.
*9 In the instant case, Reyes received information at 10:15. It would have taken between sixty and ninety minutes to obtain the warrant. It could thus be available between 11:15 and 11:45. Officers, who could stop anyone leaving the residence, had it under surveillance. At 10:30 Reyes was told the residents would be leaving shortly. He abandoned his efforts to obtain the warrant. The raid was conducted between 11:15 and 11:20.
A warrant could have been obtained within a matter of minutes of the time the warrantless arrest was made. This case is unlike the situation presented in Thompson v. State, 447 S.W.2d 175 (Tex.Cr.App.1969). In Thompson, an officer approached the house with an invalid search warrant. He heard someone ask, "Have you finished shooting yet?" and then looked in the window and observed an individual preparing to make an injection into his arm. We held that since the officers had sufficient probable cause to search based on their observations the search would not be unlawful because it was conducted under color of the invalid warrant. The instant case does not present a situation where a valid exception to the warrant requirement developed immediately prior to the search.
There is an indication that the officers sought to justify this search on the oral approval of the justice of the peace. If this were allowed, it would constitute an "oral search warrant." Article 18.01, V.A.C.C.P., provides, "A `search warrant' is a written order ...." A written warrant allows the officer to show his authority to the "person who has charge of" the place to be searched as required by Article 18.16, V.A. C.C.P. It also facilitates subsequent judicial review of the validity of the warrant. Thus, a search warrant must be in writing because both the statute and sound policy requirements demand that it be so.
For the above reasons, the evidence introduced was wrongfully seized, and its introduction into evidence was error.
The judgment is reversed and the cause is remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567447/ | 10 So.3d 635 (2009)
FULMER
v.
FULMER.
No. 1D08-3294.
District Court of Appeal of Florida, First District.
June 11, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567746/ | 450 S.W.2d 321 (1970)
Carol Joseph McLEOD, Appellant,
v.
The STATE of Texas, Appellee.
No. 42481.
Court of Criminal Appeals of Texas.
January 14, 1970.
Rehearing Denied March 4, 1970.
*322 John W. O'Dowd, John J. Browne, Houston, for appellant.
Carol S. Vance, Dist. Atty., and James C. Brough and Ray Montgomery, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction is for the possession of heroin; the punishment, twenty years.
Appellant contends that the trial court erred in overruling his motion to suppress the evidence, because officers of the Houston Police Department did not have probable cause to make the arrest and seize the heroin.
Officer Bell testified out of the presence of the jury that he had known appellant for approximately four years and knew him to be a "dope" addict and burglar. Some two weeks before the arrest, he had a complaint and went to appellant's apartment and talked to him. Appellant told him then that he was "shooting about a half a paper (of heroin) a day."
Officer Bell testified before the jury that on the day of the arrest he and Officers Jackson and Liles saw appellant standing inside and looking out a washateria window. They placed him under surveillance and saw him go to an automobile that drove up, lean in and place his hand inside the window and make an exchange with the driver of the automobile. Appellant then went toward the washateria to a pickup truck, got in on the passenger side and closed the door and another man entered on the driver's side. As Officer Bell approached, appellant put a folded paper inside his mouth. Officer Bell further testified that the paper contained heroin, because the heroin sold on the drug market in Houston came in that type of paper, and he had seen many such papers. He also testified that he was reassured that appellant was committing a felony when he attempted to swallow the paper, and then decided to arrest him. Bell then grabbed appellant by the throat, put his finger in his mouth, and before he recovered the paper of heroin, appellant bit his finger.
The record reflects that the contents of the paper seized weighed one-half gram and contained thirteen per cent pure heroin.
Records of appellant's prior felony convictions for burglary and possession of marijuana were introduced before the jury at the penalty stage of the trial.
The evidence shows that Officer Bell had probable cause to believe that an offense was being committed in his presence and the arrest and search were authorized by Article 14.01, Sec. (b), Vernon's Ann.C.C.P., which provides that a peace officer may arrest an offender without warrant for any offense committed in his presence or within his view.
Appellant relies upon Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed. 2d 917. That case is distinguishable. There the arresting officer during eight hours of patrol observed Sibron in conversation with several narcotic addicts but did not overhear any of these conversations and did not see anything pass between Sibron and the others. Late in the evening, *323 the officer saw Sibron enter a restaurant and speak with three known addicts. No conversation was overheard and nothing passed between Sibron and the addicts. While he was seated and eating, he was asked outside by the officer who found the heroin.
In the present case, the officer knew appellant to be a narcotic addict, saw an exchange, and saw appellant try to swallow a folded paper like that used for the sale of heroin on the Houston drug market.
In a supplemental brief filed in this Court, appellant contends for the first time that the seizure of the heroin was unreasonable under Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). There an officer, who was illegally on the premises, was unable to retrieve the pills, took Rochin to a hospital where a doctor forcibly applied a stomach pump and thereby obtained the heroin that was introduced against him.
In the present case, Officer Bell prevented the destruction or secretion of the contraband. No stomach pump was used. Recently, in a somewhat similar case, this Court upheld a seizure where an officer grabbed, had a stranglehold and caused the accused to spit out the package of heroin and held that Rochin did not apply. Donley v. State, Tex.Cr.App., 435 S. W.2d 518. See Johnson v. State, Tex.Cr. App., 397 S.W.2d 441; Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960), cert. denied 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55.
Appellant's ground of error that the seizure of the heroin was unreasonable is overruled.
Next, appellant in his appellate brief filed in the trial court contends that:
"The Trial Court erred in failing to respond to Appellant's written objections to the Court's charge on the fact issue of an alleged arrest without a warrant as raised by the evidence during the trial.
"The objections to which appellant specifically refers are numbered I., II., III., and IV., and are shown in the transcript on pages 13, 14 and 15."
This does not appear to comply with Article 40.09, Sec. 9, V.A.C.C.P., which provides, in part:
"[T]his brief shall set forth separately each ground of error of which defendant desires to complain on appeal and may set forth such arguments as he deems appropriate. Each ground of error shall briefly refer to that part of the ruling of the trial court, charge given to the jury, or charge refused, admission or rejection of evidence or other proceedings which are designated to be complained of in such way as that the point of objection can be clearly identified and understood by the court. * * *"
See Keel v. State, Tex.Cr.App., 434 S.W. 2d 687; Shirden v. State, Tex.Cr.App., 439 S.W.2d 348; Dailey v. State, Tex.Cr.App., 436 S.W.2d 346; and Young v. State, Tex.Cr.App., 448 S.W.2d 484.
However, we observe as to the objections, pointed out in the supplemental brief filed in this Court, that the trial court should have charged the jury if the officers did not have probable cause to make the arrest not to consider the seized evidence, no such issue was raised by the evidence, and no error is shown.
There being no reversible error, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567301/ | 10 So. 3d 1 (2009)
MASTERBRAND CABINETS, INC., f/k/a NHB Industries, Inc.
v.
Nacola RUGGS.
2050800.
Court of Civil Appeals of Alabama.
April 13, 2007.
Rehearing Denied June 15, 2007.
Mark J. Romaniuk and Kelley Bertoux Creveling of Baker & Daniels, LLP, Indianapolis, Indiana; and Joseph T. Carpenter of Carpenter, Ingram & Mosholder, LLP, Montgomery, for appellant.
Donald W. Lang, Sylacauga, for appellee.
BRYAN, Judge.
MasterBrand Cabinets, Inc., f/k/a NHB Industries, Inc. ("MasterBrand"), appeals an order of the trial court purporting to amend a judgment awarding Nacola Ruggs workers' compensation benefits. Insofar as the trial court's order purported to amend the judgment by awarding Ruggs double compensation, we reverse and remand.
Ruggs sued MasterBrand seeking to recover workers' compensation benefits. On April 22, 2003, the trial court entered a judgment awarding Ruggs workers' compensation benefits for a permanent and total disability. MasterBrand appealed, and this court affirmed the judgment in part, reversed it in part, and remanded the case to the trial court. MasterBrand Cabinets, Inc. v. Ruggs, 891 So. 2d 869 (Ala. *2 Civ.App.2004), overruled by Stone & Webster Constr., Inc. v. Lanier, 914 So. 2d 869 (Ala.Civ.App.2005).
Following remand, the trial court entered a judgment on May 24, 2004, again awarding workers' compensation benefits to Ruggs for a permanent and total disability. MasterBrand again appealed, and this court affirmed the trial court's judgment without an opinion. MasterBrand Cabinets, Inc. v. Ruggs (No. 2030893, June 17, 2005), 945 So. 2d 496 (Ala.Civ.App.2005) (table).
On November 29, 2005, Ruggs moved the trial court (1) to enforce the trial court's May 24, 2004, judgment awarding her workers' compensation benefits; (2) to hold MasterBrand in contempt of court; and (3) to award her double the amount of compensation that had been awarded to her in the May 24, 2004, judgment, pursuant to § 25-5-8(e), Ala.Code 1975. Section 25-5-8, Ala.Code 1975, requires an employer subject to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975, to either have workers' compensation insurance or operate as an authorized self-insurer. Ruggs's motion asserted that MasterBrand did not have workers' compensation insurance and was not an authorized self-insurer. Ruggs's motion sought an award of double compensation pursuant to § 25-5-8(e), Ala.Code 1975, which provides that "an employer required to secure the payment of compensation under this section who fails to secure the compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee."
Following a hearing on Ruggs's motion, the trial court entered an order on April 4, 2006, (1) that calculated and awarded interest on compensation due Ruggs; (2) that awarded Ruggs double the amount of compensation that had been awarded to her in the May 24, 2004, judgment, pursuant to § 25-5-8(e); (3) that found MasterBrand not to be in contempt of court; and (4) that restated certain provisions from the May 24, 2004, judgment. On May 4, 2006, MasterBrand filed a motion seeking to vacate or amend the April 4, 2006, order. The trial court denied that motion on May 11, 2006. MasterBrand then appealed to this court.
On appeal, MasterBrand argues that the trial court lacked jurisdiction to award Ruggs double compensation in its April 4, 2006, order. To the extent that Ruggs's November 29, 2005, motion sought an award of double compensation, that motion was in substance a Rule 59(e), Ala. R. Civ. P., motion seeking to amend the May 24, 2004, final judgment. A Rule 59(e) motion must be filed within 30 days of the entry of the judgment. Rule 59(e); and Cornelius v. Green, 477 So. 2d 1363, 1365 (Ala.1985). Ruggs failed to file her Rule 59(e) motion within 30 days of the entry of the May 24, 2004, judgment. Absent a timely filed postjudgment motion, the trial court lacked jurisdiction to amend its May 24, 2004, judgment more than 30 days after the entry of that judgment. See Dickerson v. Dickerson, 885 So. 2d 160, 166 (Ala. Civ.App.2003) (stating that, because a timely postjudgment motion was not filed, the trial court lacked jurisdiction to alter, amend, or vacate its final judgment more than 30 days after the entry of that judgment); and Superior Sec. Serv., Inc. v. Azalea City Fed. Credit Union, 651 So. 2d 28, 29 (Ala.Civ.App.1994) ("It is well settled that after 30 days elapse following the entry of a judgment, the trial court no longer has authority to correct or amend its judgment, except for clerical errors."). Accordingly, the trial court lacked jurisdiction to amend the May 24, 2004, judgment by doubling Ruggs's award of compensation *3 in its April 4, 2006, order.[1]
The trial court's order of April 4, 2006, is reversed insofar as it purported to amend its May 24, 2004, judgment by awarding Ruggs double compensation pursuant to § 25-5-8(e), and the case is remanded.
REVERSED AND REMANDED.
MOORE, J., concurs.
PITTMAN, J., concurs specially.
THOMPSON, P.J., dissents, with writing, which THOMAS, J., joins.
PITTMAN, Judge, concurring specially.
Section 25-5-8(e), Ala.Code 1975, a part of the Alabama Workers' Compensation Act, provides that "an employer required to secure the payment of compensation ... who fails to secure the compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee." In this case, Ruggs sought in her complaint "[s]uch benefits as she [wa]s entitled to receive under the Worker's Compensation Laws of the State of Alabama," a body of law that includes § 25-5-8(e), yet the trial court did not award Ruggs a penalty in accordance with § 25-5-8(e) as a component of its May 20, 2004, judgment. Because Ruggs neither timely sought postjudgment relief nor appealed from that judgment, I must conclude that Ruggs's claim for benefits under Alabama's workers' compensation laws has been brought to a final conclusion on its merits (having been fully merged into the May 20, 2004, judgment), and all other claims Ruggs might have asserted against MasterBrand that arise out of her workplace injury, including her penalty claim under § 25-5-8(e), are barred by the doctrine of res judicata. Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998). I therefore concur in the main opinion.
THOMPSON, Presiding Judge, dissenting.
The findings in the trial court's April 4, 2006, judgment include the following:
"When the case was ... returned to the Circuit Court of Talladega County, Alabama, [MasterBrand] did not make payment of said judgment in the time authorized by law, thereby prompting [Ruggs] to file her motion asking the Court to enforce its original judgment, further asking the Court to double her benefits due to the fact that [MasterBrand] did not have a self-insured status with the State of Alabama and did not have workers' compensation insurance, and asking the Court to punish [MasterBrand] for contempt of court for failure to comply with the Court's order of May 20, 2004, and to assess a reasonable attorney's fee against [MasterBrand] because of their contemptuous conduct.
*4 "I. INTEREST
"FINDINGS OF FACT AND CONCLUSIONS OF LAW
"1. That, after the case was returned to the Circuit Court of Talladega County, Alabama, [Ruggs] made demand on [MasterBrand] for the lump sums due under the Circuit Court's judgment, for the weekly benefits due, and for [MasterBrand] to designate an authorized treating physician for [Ruggs], all of this by letter dated October 20, 2005, which was introduced into evidence at the time of this hearing, and [MasterBrand] never responded to [Ruggs];
"2. That the Clerk's Office contacted [MasterBrand's] attorneys relative to the existing cash supersedeas bond and relative to their payment of the outstanding judgment but [MasterBrand] never responded to the Clerk's Office;
"....
"6. The Court finds that [MasterBrand] made no effort to pay the judgment in this cause until such time as [Ruggs] requested the Clerk of the Court to apply the supersedeas bond to this judgment and made no additional effort to make any further payment on the judgment until such time as it was directed to make payment of same in open court on December 14, 2005; ...
"....
"II. DOUBLE AWARD PENALTY PROVISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
"....
"2. That [MasterBrand] failed to prove, when the case was originally tried, that it enjoyed a self-insured status with the State of Alabama and further failed to prove that [it] had workers' compensation insurance;
"3. That when [Ruggs's] motion asking for double award penalty provision benefits because of [MasterBrand's] failure to enjoy self-insured status and failure to have workers' compensation insurance was heard by this Court on December 14, 2005, [MasterBrand] again failed to prove that it enjoyed a self-insured status or that it had workers' compensation insurance and the Court finds that [MasterBrand] had the burden of proof to prove those facts to the Court;
"4. That the Court finds that even though [MasterBrand] offered no proof to the Court of a self-insured status or of having workers' compensation insurance, [Ruggs] proved to the Court that [MasterBrand] in fact did not have insurance and it in fact did not enjoy a self-insured status by having Joseph Ammons, General Counsel to the Compliance Section of the Alabama Department of Industrial Relations, present in court to testify that [MasterBrand] had no insurance and had not been granted a self-insured status;
"5. That [MasterBrand] was directed by this Court in its Order Setting Date entered on November 29, 2005, setting this motion for hearing on December 14, 2005, at 10:00 a.m. to have its duly authorized representative that was familiar with [MasterBrand's] workers' compensation insurance, if any, to appear before this Court on December 14, 2005, at 10:00 a.m.; however, [MasterBrand] failed to have a duly authorized representative familiar with [MasterBrand]'s workers' compensation insurance in court;
"....
*5 "7. That, as hereinabove stated, [MasterBrand] made no effort to pay the judgment in this case in the time allowed by law, did not respond to [Ruggs's] request for payment of said judgment and did not respond to the Clerk's request relative to the application of the supersedeas bond to the judgment, thereby prompting [Ruggs] to make an investigation as to whether or not [MasterBrand] was self-insured or had workers' compensation insurance and therefore [Ruggs] did not learn that [MasterBrand] was uninsured and had no self-insured status until [Ruggs] filed her motion with this Court on November 29, 2005; ...
"8. That the Court therefore finds that [Ruggs] is entitled to the double-award penalty provision."
Section 25-5-8, Ala.Code 1975, requires employers to secure workers' compensation insurance coverage or to operate as a self-insurer. That section requires that the employer present to the director of the Department of Industrial Relations ("the director") evidence of its workers' compensation coverage or self-insured status. See § 25-5-8(c). Subsection (e) of § 25-5-8 sets forth "[p]enalties for failure to secure payment of compensation." An award of double compensation to a claimant when the employer has not procured workers' compensation insurance coverage and is not self-insured as required by § 25-5-8 is a penalty imposed by § 25-5-8(e). See generally § 25-5-8(e), Ala.Code 1975; Domino's Pizza, Inc. v. Casey, 611 So. 2d 377 (Ala.Civ.App.1992); Hastings v. Hancock, 576 So. 2d 666 (Ala.Civ.App.1991); and Hester v. Ridings, 388 So. 2d 1218 (Ala.Civ.App.1980).
The double-compensation penalty provision of § 25-5-8(e) is mandatory. Hastings v. Hancock, 576 So.2d at 667. In addressing the double-compensation penalty provision of § 25-5-8(e), this court has stated that "[t]he penalty was designed to promote compliance with our workmen's compensation law just as other penalties are designed to promote compliance with other laws. Compensation laws were enacted to make more certain the relief available to the employee who comes under its influence." Hester v. Ridings, 388 So.2d at 1220. "[T]here is no legal right to relief from a penalty which is required to be imposed by law." Rush v. Heflin, 411 So. 2d 1295, 1296 (Ala.Civ.App.1982).
The main opinion concludes that that portion of Ruggs's motion seeking an award of double compensation was a motion filed pursuant to Rule 59(e), Ala. R. Civ. P. In reaching that conclusion, the main opinion holds that the trial court, in awarding the double-compensation penalty under § 25-5-8(e), "modified" the original May 24, 2004, workers' compensation judgment and that it did so in excess of 30 days after the entry of that judgment. In so holding, the main opinion necessarily concludes that a claim for the award of the double-compensation penalty set forth in § 25-5-8(e) must be asserted at the time of the original pleadings and determined at the time of, or within 30 days of, the entry of a workers' compensation judgment. I disagree.
I do not read the penalty provision § 25-5-8(e), Ala.Code 1975, as being limited to an original workers' compensation judgment. Nothing in § 25-5-8 precludes the filing of a motion seeking double compensation in conjunction with a motion for contempt when, as in this case, the employer has failed to pay the judgment. In fact, limiting the application of § 25-5-8(e) to allowing awards of double compensation only in original workers' compensation judgments, as the main opinion seems to advocate, might allow employers, either intentionally or unintentionally, to avoid *6 the application of the penalty provision of § 25-5-8(e) by paying benefits until the expiration of the time allowed to modify an original judgment.
"In view of the mandatory language of the statute [(§ 25-5-8(e))], Alabama State Board of Health ex rel. Baxley v. Chambers County, 335 So. 2d 653 (Ala. 1976), and because of the requirement that the remedial and beneficent purposes of the Workmen's Compensation Act be recognized through liberal construction of its provisions, Riley v. Perkins, 282 Ala. 629, 213 So. 2d 796 (1968), [I would hold] that plaintiff is entitled to [assert a claim to] the award of double the amount to which she would have otherwise been entitled."
Harris v. Vaughan, 373 So. 2d 1111, 1112-13 (Ala.Civ.App.1979). Given the foregoing, as well as the nature of the relief provided in § 25-5-8(e), I believe that in appropriate circumstances, such as those in this case, a claim under the penalty provisions of § 25-5-8(e) may be asserted as part of an action seeking to enforce the original judgment. I would affirm the trial court's judgment awarding double compensation to Ruggs under § 25-5-8(e).
MasterBrand also argues on appeal that, assuming that Ruggs could properly assert a claim under the penalty provision of § 25-5-8(e), the evidence did not support the trial court's decision to award that penalty. It is clear from repeated references in the transcript that, after Ruggs filed her November 29, 2005, motion seeking the penalty at issue, the trial court entered a scheduling order requiring MasterBrand to have a corporate representative with knowledge of its insurance coverage present at the scheduled hearing on Ruggs's motion. No such representative was present at the hearing; the attorneys for MasterBrand stated that they had not read the trial court's scheduling order closely and did not realize that a corporate representative needed to be present.
At the hearing, Ruggs presented the testimony of Joseph Hammonds, the general counsel for the workers' compensation division of the Department of Industrial Relations ("DIR"). Hammonds testified that a search of DIR records did not reveal any evidence indicating that MasterBrand was insured for workers' compensation coverage or that it operated as a self-insurer.[2] MasterBrand attempted to submit into evidence a facsimile copy of a document purporting to demonstrate workers' compensation coverage held by a purported parent company of MasterBrand, and its attorneys represented that the parent company's insurance provided coverage to MasterBrand. However, Ruggs objected to that document on several grounds, including the fact that it was a facsimile copy that did not indicate that the purported parent company was connected to MasterBrand and on the basis that, Ruggs contended, MasterBrand was attempting to circumvent the trial court's requirement that it have a corporate representative available. The trial court sustained Ruggs's objection to that document; it appears from comments made by the trial court throughout the transcript that the court was not pleased with MasterBrand's failure to have a corporate representative available to present evidence regarding the issue of MasterBrand's insurance coverage.
MasterBrand was on notice from the nature of Ruggs's November 29, 2005, motion *7 that its coverage was being questioned, and it was ordered by the trial court to make a corporate representative available to testify regarding its insurance coverage, if any, in place at the time of Ruggs's on-the-job accident. However, MasterBrand did not present any witness testimony or any other evidence to rebut Ruggs's evidence tending to indicate that MasterBrand was not properly insured as required by § 25-5-8.[3] Therefore, I believe the evidence supports the trial court's judgment.
Based on the foregoing, I would affirm the trial court's judgment. Therefore, I must respectfully dissent.
THOMAS, J., joins.
NOTES
[1] We note that the Alabama Workers' Compensation Act establishes a right, notwithstanding the procedural rules regarding postjudgment motions, to petition the trial court to amend workers' compensation judgments in limited circumstances. However, those circumstances are not present in this case. See, e.g., § 25-5-57(a)(3)i., Ala.Code 1975 (stating that in some situations an employee receiving permanent-partial-disability benefits may petition the trial court for a reconsideration of the employee's permanent-partial-disability rating); and § 25-5-57(a)(4)b., Ala. Code 1975 ("At any time, the employer may petition the court that awarded or approved compensation for permanent total disability to alter, amend, or revise the award or approval of the compensation on the ground that ... the disability from which the employee suffers is no longer a permanent total disability....").
[2] Section 25-5-8(c) requires employers to file with the director of the DIR evidence indicating that they have complied with the requirements to secure payment of compensation required by § 25-5-8.
[3] In this case, Ruggs elected to present evidence on the issue even though she contended that it was MasterBrand's burden to demonstrate that it had insurance coverage or was self-insured. This court has held that it is the employer's burden to demonstrate that it is self-insured in order to avoid the penalty provision in § 25-5-8(e), Ala.Code 1975. Hastings v. Hancock, 576 So.2d at 668. In this case, we have not been asked to address, and neither the main opinion nor this dissent comments on, the respective burdens of proof the parties had with regard to presenting evidence on the issue of possible insurance coverage and whether a penalty under § 25-5-8(e) was appropriate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567288/ | 579 S.W.2d 506 (1979)
Mary Sue CRAFT, Appellant,
v.
Jerry David CRAFT, Appellee.
No. 19769.
Court of Civil Appeals of Texas, Dallas.
January 19, 1979.
Rehearing Denied February 21, 1979.
*507 Jay S. Fichtner, Berman, Fichtner & Mitchell, Dallas, for appellant.
Charles O. Shields, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for appellee.
Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
*508 GUITTARD, Chief Justice.
Appellee has moved to dismiss this appeal for lack of jurisdiction. The question is whether a temporary order issued under section 11.11 of the Texas Family Code (Vernon 1975), is appealable. We hold that it is not appealable, and, accordingly, we grant the motion to dismiss.
The record before us tells a sad story of divorced parents in continuous litigation over custody of three children. The divorce decree of July 21, 1975, appointed the mother managing conservator. The father subsequently moved to modify the decree. On August 8, 1977, the court appointed the father managing conservator of the eldest child, reciting that he had been residing with the father and that the mother had agreed to the change, but the court denied the motion with respect to the two younger children on the ground that their circumstances had not materially changed since the divorce decree. Less than a year later, the father filed an "emergency motion" to modify the decree with respect to the younger children, alleging that the mother was mentally ill, had made threats to kill the father in the presence of the children, and should not be allowed possession of the children outside the presence of a responsible adult. Accordingly, he prayed for an ex parte order modifying the previous decree and appointing him temporary managing conservator. The court issued such an ex parte order on June 2, 1978, and set a hearing for July 17. After notice to the mother, a hearing was held on July 21, with both parties and their counsel present. On August 7 the court signed an order removing the mother as managing conservator and appointing the father temporary managing conservator "pending trial of this cause." The order further provides that the mother "shall not visit with" the children pending trial.
The mother has complied with the provisions of Rule 385, Texas Rules of Civil Procedure, for perfection of an appeal from an interlocutory order. On her motion we have granted two extensions of time for filing the statement of facts. She has also filed with us an application to suspend the trial court's order pending this appeal. The father opposed the extensions and moved to dismiss the appeal on the ground that this court has no jurisdiction. We previously granted the extensions and overruled the application to suspend and the motion to dismiss. On consideration of appellant's motion for rehearing, we now conclude that the motion to dismiss should be granted.
Appellant contends that the order in question is appealable under section 11.19 of the Family Code, which provides for appeals in suits involving the parent-child relationship. She also relies on section 11.11 of the Code, which provides for temporary orders in such cases; and on article 4662 of the Texas Revised Civil Statutes (Vernon 1952), which provides for appeals from orders granting or refusing temporary injunctions.
On this question, decisions of the courts of civil appeals are in conflict. The Tyler court has held such orders to be appealable. In re Stuart, 544 S.W.2d 821, 822 (Tex.Civ. App.Tyler 1976, writ ref'd n. r. e.). The Beaumont court and both Houston courts have held to the contrary. Knipe v. Colpitts, 551 S.W.2d 150, 151 (Tex.Civ.App. Houston [14th Dist.] 1977, no writ); Johnson v. Parish, 547 S.W.2d 311, 312 (Tex.Civ. App.Houston [1st Dist] 1977, no writ); Carpenter v. Ross, 534 S.W.2d 447, 448 (Tex. Civ.App.Beaumont 1976, no writ).[1]
We conclude that the Beaumont and Houston courts are correct in their view that the Code has not made such temporary orders appealable. It seems to us that if the legislature had intended such a drastic change from the pre-existing law, it would have used express language so providing, but we find no such language in the Code or elsewhere.
*509 Of course, even "final" custody and support orders are temporary in the sense that they are subject to modification on showing a change in circumstances under section 14.08 of the Code. Before enactment of the Code, however, it was settled that an order was not appealable if it was interlocutory in the sense that it was effective only until a proper hearing could be held to determine custody or support. This rule was well established by such cases as Frost v. Frost, 467 S.W.2d 683 (Tex.Civ. App.Texarkana 1971, no writ); Archer v. Archer, 407 S.W.2d 529 (Tex.Civ.App.San Antonio 1966, no writ); Affolter v. Affolter, 389 S.W.2d 742 (Tex.Civ.App.Corpus Christi 1965, no writ); Mendoza v. Baker, 319 S.W.2d 147 (Tex.Civ.App.Houston 1958, no writ); Morrow v. Gallant, 312 S.W.2d 526 (Tex.Civ.App.Austin 1958, no writ); Wardlaw v. Wardlaw, 267 S.W.2d 250 (Tex.Civ.App.Waco 1954, no writ); and Goodman v. Goodman, 224 S.W. 207 (Tex.Civ.App.Texarkana 1920, no writ). Those decisions are in accord with article 2249, Texas Revised Civil Statutes (Vernon 1971), providing that appeals may be taken from "every final judgment," and they follow the general rule that no appeal can be taken from an interlocutory order unless such an appeal is expressly provided by statute. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994 (1944).
This background must be considered in construing the Texas Family Code, since, as appellant recognizes, it must be presumed that the legislature acted with full knowledge of all legal decisions on the subject matter of the legislation rendered before its enactment. Garner v. Lumberton Ind. Sch. Dist., 430 S.W.2d 418, 423 (Tex. Civ.App.Austin 1968, no writ). The only provision of the Code dealing expressly with appeals is section 11.19. The pertinent provisions of this section are the following:
(a) Appeals from orders, decrees, or judgments entered in suits affecting the parent-child relationship, when allowed under this section or under other provisions of law, shall be as in civil cases generally.
(b) An appeal may be taken by any party to a suit affecting the parent-child relationship from an order, decree, or judgment:
(1) entered under Chapter 13 of this code;
(2) entered under Chapter 14 of this code appointing or refusing to appoint a managing conservator; appointing or refusing to appoint a possessory conservator; ordering or refusing to order payments for support of a child; or modifying any such order previously entered;
(3) entered under Chapter 15 of this code terminating or refusing to terminate the parent-child relationship or appointing a managing conservator;
(4) entered under Chapter 16 of this code granting or refusing an adoption.
In our view, these provisions, like many other provisions of the Code, declare the law as it previously existed. McKnight, Commentary to the Texas Family Code, Title 2, 5 Tex.Tech.L.Rev. 281, 407 (1974). Nothing is said about temporary orders, and no reference is made to section 11.11, which provides for temporary orders. By contrast, specific references are made to Chapter 13, concerning legitimation; to Chapter 14, concerning conservatorship, possession, and support; to Chapter 15, concerning termination of parental rights; and to Chapter 16, concerning adoptions. Although final orders under those chapters would be appealable anyway under article 2249, the drafters of the Code apparently intended Section 11.19 to be a comprehensive provision for appeals independent of general statutes defining appellate jurisdiction. Yet section 11.19 makes no reference to section 11.11, and neither does it include any other language suggesting an intent to change the law so as to provide for appeals from temporary orders. It is a well-accepted principle of statutory construction that the express mention of one thing, consequence, or class, is equivalent to an express exclusion of all others. State v. Mauritz-Wells *510 Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943); Carp v. Texas State Board of Examiners in Optometry, 401 S.W.2d 639, 642 (Tex.Civ.App.Dallas 1966, no writ). Therefore, we construe the words, "an order... appointing or refusing to appoint a managing conservator" as an order that is "final" in the sense that it is subject to modification only on showing a change of circumstances under the provisions of section 14.08.
Appellant relies also on article 11.11 of the Code, which authorizes the trial court to make temporary orders in suits affecting the parent-child relationship. Subdivision (b) of this section provides:
Temporary orders under this section are governed by the rules governing temporary restraining orders and temporary injunctions in civil cases generally.
Appellant argues that "the rules governing temporary restraining orders and temporary injunctions in civil cases generally" include the provision for appeals of orders granting or refusing temporary injunctions in article 4662 of the Texas Revised Civil Statutes (Vernon 1952).
We do not construe this language as making all temporary orders in such suits appealable. If the drafters of the Code had intended to make such a far-reaching change in appellate jurisdiction, it is reasonable to suppose that they would have done so explicitly in section 11.19, which expressly provides for appeals, and would not have left the matter for implication from the provisions of section 11.11(b). Since section 11.19 is obviously intended to be a comprehensive provision for appeals in cases arising under the Code, without dependence on general statutes defining appellate jurisdiction, it is unlikely that this reference in section 11.11 to rules governing temporary injunctions was intended to bring temporary custody and support orders within article 4662. The reference to "rules governing temporary restraining orders and temporary injunctions" may be interpreted as meaning the provisions of the Texas Rules of Civil Procedure concerning notices, hearings, recital of reasons for immediate action, and the like, and possibly also to the general rules of equity, such as the requirement of inadequacy of other remedies. It cannot reasonably be construed as meaning statutes defining appellate jurisdiction, such as article 4662. At least, that is not its necessary meaning, and we do not believe that either the drafters or the legislature so intended.
Neither do we believe that the reference to appeals in Chapter 17 of the Code establishes an intention to make temporary orders appealable. Chapter 17 concerns proceedings brought by public officers to obtain emergency orders for the protection of children. The only reference to appeals is in section 17.07, which provides, "An appeal from an emergency order made under this chapter does not stay the order." Significantly, chapter 17 is not mentioned in section 11.19, although, as previously noted, that section expressly provides for appeals from orders made under chapters 13, 14, 15, and 16. Moreover, even though section 17.02 refers to section 11.11 and describes the order under chapter 17 as one "for the temporary care or protection of the child," and section 17.04 authorizes appointment of a temporary managing conservator, an order under chapter 17 may, nevertheless, be "final" for the purpose of appeal if it is of indefinite duration rather than one which continues in force only until a further hearing in the particular proceeding. Also, an order under section 17.04 returning a child to his parents may be a final order. Section 17.07 eliminates any question that such an order may be stayed by an appeal. We cannot agree that this section necessarily implies that a temporary order made under section 11.11 is appealable. The argument that temporary orders under section 11.11 are appealable because section 17.02 refers to section 11.11, is too attenuated to provide solid support for an assumption of appellate jurisdiction.
Since this question is one of statutory construction, our notions of policy are relevant only in determining legislative intent. From this point of view, we are convinced that the stronger policy reasons support *511 our construction that temporary orders are not appealable. Custody, visitation, and support litigation is often vexatious and acrimonious. Divorced and divorcing parents may harbor bitter feelings that lead them to employ the adversary system to satisfy personal cravings for vindication and vengeance. The victims of this process are the children, whose interests should be paramount. Their interests demand that litigation be as expeditious as may be consistent with fairness and justice. Their problems can only be aggravated by appeals from temporary orders in such cases.
Such appeals would often result in intolerable protraction of the litigation. They would frequently involve motions for suspension of temporary orders and for delays in preparation of the record, as does the attempted appeal in the present case. Further review by the supreme court on application for writ of error would also be available. Houston Oil Co. v. Village Mills Co., 109 Tex. 169, 202 S.W. 725, 726 (1918). Notwithstanding admonitions in such cases as Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959), and Charter Medical Corp. v. Miller, 554 S.W.2d 220, 223 (Tex.Civ.App.Dallas 1977, no writ), that interlocutory appeals should not delay trial on the merits, attorneys rarely press for trial, and trial judges are reluctant to insist on proceeding while an interlocutory appeal is pending. The present case, for example, could have been tried on the merits in less time than that required to dispose of this appeal. The resulting delay would more than offset any benefit that would result from subjecting interlocutory orders in custody, visitation, and support cases to appellate review. Although a trial judge may occasionally abuse his discretion in issuing an interlocutory order, the harm is rarely, if ever, permanent, and the best remedy is an early trial on the merits. In absence of express language making such an order appealable, we cannot believe that the legislature intended to impose this additional burden on parents, children, and appellate courts.
Appellant also contends that the order appealed from is one granting a temporary injunction within article 4662 in view of the provision that the mother "shall not visit with" the children pending trial of the cause. If this contention were correct, this provision restricting visitation would be the only part of the order subject to review because of the well-settled rule that other interlocutory orders cannot be reviewed in an appeal from an order granting or refusing a temporary injunction. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389 (1950); Dickson v. Dickson, 516 S.W.2d 28 (Tex.Civ.App.Austin 1974, no writ). We conclude, however, that the order is not injunctive, but rather one concerning custody and visitation. Any order defining visitation rights involves some degree of restraint. This court has recently held that not every temporary order imposing restraint is an appealable temporary injunction within article 4662. Bowden v. Hunt, 571 S.W.2d 550 (Tex.Civ.App.Dallas 1978, no writ). The present order is not by its terms injunctive, and, consequently, we hold that it is not appealable.
Our former opinions are withdrawn and the appeal is dismissed.
AKIN, J., dissenting.
AKIN, Justice, dissenting.
I cannot agree that this court lacks jurisdiction to review an order of the domestic relations court removing the mother as managing conservator and appointing the father temporary managing conservator. In my view, we have jurisdiction under Tex.Family Code Ann. §§ 11.11(b), 11.19 (Vernon 1975). Neither do I agree that the order prohibiting the mother from visiting with the children cannot be reviewed because even if we lack jurisdiction of the order changing custody, we still have jurisdiction of that part of the order denying the mother visitation rights under Tex.Rev.Civ. Stat.Ann. art. 4662 (Vernon 1952). In my view, these questions are separate and distinct, and, consequently, the answer to one does not determine our jurisdiction of the other. Accordingly, I must dissent.
*512 With respect to the order terminating the mother as managing conservator and appointing the father temporary conservator, we have jurisdiction under section 11.11(b) which provides: "Temporary orders under this section are governed by the rules governing temporary restraining orders and temporary injunctions in civil cases generally." [Emphasis added.] Temporary injunctions in civil cases are appealable under Tex.Rev.Civ.Stat.Ann. art. 4662 (Vernon 1952) and the procedure for such appeals is set forth in Tex.R.Civ.P. 385. As I read this statute, it makes all of the rules, whether procedural, substantive, or statutory, governing temporary injunctions applicable to temporary orders within the ambit of section 11.11 of the Texas Family Code. Consequently, an order changing custody, even though designated as "temporary", is also appealable. In Interest of Stuart, 544 S.W.2d 821, 822 (Tex.Civ.App.Tyler 1976, writ ref'd n. r. e.). In my view, had the legislature intended the contrary view, it would have used the language "Rules of Civil Procedure" instead of just "rules." The word "rules" is used in its broadest sense so that temporary orders under the family code are governed by all of the rules afforded temporary injunctions, including the right to appeal. Consequently, I do not regard Johnson v. Parish, 547 S.W.2d 311, 313 (Tex.Civ.App.Houston [1st Dist.] 1977, no writ) as correctly decided and, thus, not sound authority for the majority's view. In that case, the court correctly recognized that appealability turned on a construction of section 11.11(b), but narrowly construed the word "rules" to be limited to the Texas Rules of Civil Procedure as opposed to the broad construction used by the Tyler Court of Civil Appeals in Stuart.
Neither do I regard as authoritative the holding of the Beaumont Court of Civil Appeals in Carpenter v. Ross, 534 S.W.2d 447, 448 (Tex.Civ.App.Beaumont 1976, no writ), also cited by the majority, that a temporary child custody order was not appealable under section 11.19(b)(2). In arriving at its conclusion, that court set forth no basis for its holding nor did it even quote or discuss the language of the statute. Similarly, in Knipe v. Colpitts, 551 S.W.2d 150, 151 (Tex.Civ.App.Houston [14th Dist.] 1977, no writ) that court did not discuss the basis for its conclusion that an order denying visitation is not appealable nor did that court refer to any specific section of the Texas Family Code, but instead merely cited Carpenter v. Ross, supra, and Johnson v. Parish, supra.
The majority has interpreted the phrase "rule governing temporary injunctions" as pertaining only to the Texas Rules of Civil Procedure with respect to notices, hearings, recital of the reasons for immediate action and the general rules of equity. I cannot accept this interpretation. Had the legislature intended this interpretation, it could have accomplished it by omitting the words "and temporary injunctions" since the interpretation given this section by the majority is accomplished by the use of the words "temporary restraining orders." Under the majority's construction, the language "and temporary injunctions" is rendered meaningless. It can only be given meaning by reading it to include the right to appeal afforded temporary injunctions by article 4662. Of course, under the rules of statutory construction every word is presumed to have some meaning or otherwise the legislature would not have used the words. E. g., Robertson v. State, 406 S.W.2d 90, 95 (Tex.Civ.App.Fort Worth 1966, writ ref'd n. r. e.).
The majority's primary reason for holding this order not appealable is that section 11.19 entitled "appeal" does not specifically state that all temporary orders are appealable. I cannot agree that such a statement in section 11.19 is necessary since section 11.19 provides:
(a) Appeals from orders, decrees, or judgments entered in suits affecting the parent-child relationship, when allowed under this section or under other provisions of law, shall be as in civil cases generally.
(b) An appeal may be taken by any party to a suit affecting the parent-child relationship from an order, decree, or judgment:
*513 (1) entered under Chapter 13 of this code;
(2) entered under Chapter 14 of this code appointing or refusing to appoint a managing conservator; appointing or refusing to appoint a possessory conservator; ordering or refusing to order payments for support of a child; or modifying any such order previously entered;
(3) entered under Chapter 15 of this code terminating or refusing to terminate the parent-child relationship; or appointing a managing conservator;
(4) entered under Chapter 16 of this code granting or refusing an adoption. [Emphasis added]
As I read the language, as used in (a), "when allowed under this section or under other provisions of law," it permits an appeal from orders set forth in section 11.19(b), such as the order here modifying a previously entered order granting managing conservatorship to the mother, and "under other provisions of law." The latter phrase, of course, would include section 11.11(b) pertaining to temporary orders and article 4662. Furthermore, the legislature chose not to use the words "permanent" and "final" or any other words of limitation in section 11.19. By its express terms, section 11.19 does not limit appeal only to final orders with respect to appointments of managing or possessory conservators. This legislative intent is even clearer when sections 11.19 and 11.11(b) are read together.
Consequently, I cannot accept the majority's construction that section 11.19 merely codifies the law as it existed prior to the adoption of the Texas Family Code. In arriving at this conclusion, the majority correctly notes that section 11.19(b) makes specific references to Chapter 13, concerning legitimation; to Chapter 14, concerning conservatorship, possession, and support; to Chapter 15, concerning termination of parental rights; and to Chapter 16, concerning adoptions. Then the majority notes that final orders under those chapters would be appealable without regard to section 11.19(b) under Tex.Rev.Civ.Stat.Ann. art. 2249 (Vernon 1971) and concludes that section 11.19 was intended to be a comprehensive provision for appeals under the Code independent of other general statutes defining appellate jurisdiction. In arriving at its conclusion, the majority fails to give effect or meaning to subdivision (a) of section 11.19, upon which I predicate this dissent.
Furthermore, although the majority takes note of the mother's contention that Chapter 17, pertaining to emergency suits for protection of a child, is not specifically mentioned in section 11.19 and section 17.07 provides that an appeal from an order under that chapter does not stay the order, I cannot agree with the majority's conclusion that an order under Chapter 17 is, nevertheless, "final" in the sense that it is for an indefinite duration. I find no language in Chapter 17 justifying that conclusion. Indeed, section 17.05 provides that if the child is not restored to its parent, guardian, or conservator, the court shall order such restoration of possession or direct that a new suit affecting the parent-child relationship be filed. Thus, under Chapter 17, the court's order is necessarily temporary if a new suit affecting the parent-child relationship must be filed and can only be final if the child is restored to the parent. The fact that section 17.07 mentions an appeal from any order entered pursuant to Chapter 17 and is not specifically mentioned in section 11.19(b) reinforces my construction of sections 11.19(a) and 11.11(b) and negates the conclusion of the majority that temporary orders are not appealable under section 11.19 because they are not specifically referred to as such by name. Moreover, section 17.02 gives the state authority to act under section 11.11 as an alternative to Chapter 17. Indeed, it would be illogical to say that if the state chose to use section 11.11, the order would not be appealable, but if it chose to use Chapter 17, an appeal would be permitted.
I see no logical reason for ascribing to the legislature an intent to place a limitation on section 11.11(b) and construe it as not permitting *514 an appeal an in temporary injunctions. Under the holding of the majority, no provision is made to enforce section 11.11(b) if a trial court refused to follow the rules pertaining to temporary restraining orders and temporary injunctions because if these orders are not appealable, any complaint becomes moot when the matter is finally adjudicated on the merits. Thus, no relief is afforded an aggrieved party when a trial court ignores the mandate of section 11.11(b).
In addition to the clear language of sections 11.11 and 11.19, it appears to me that the better policy is to permit such appeals in these situations since a child's life or welfare may be adversely affected even by a temporary order granting custody or denying visitation. Indeed, such orders may last for a period of many months, such as the order here, which was rendered in July of 1978 with final hearing scheduled in January of 1979. Even this trial date may be postponed due to the press of the trial dockets in this jurisdiction. Thus, even years may pass before a final determination is made and, in effect, the "temporary" order may indeed be a permanent order insofar as the child and parent adversely affected are concerned. In this regard, the underlying principle of the family code is that which is best for the child. Since temporary custody affects a substantial right with respect to the child's best interest, I believe the legislature intended to change the common law and to make such temporary custody orders appealable. See Gordon v. Gordon, 33 Ohio App. 2d 257, 294 N.E.2d 239, 241 (Ct.App. 1973).
With respect to the appealability of that part of the order denying the mother the right of visitation, that order is appealable under the Texas Family Code, supra, and was appealable under case law prior to the adoption of the Texas Family Code. In Janelli v. Bond, 148 Tex. 416, 225 S.W.2d 824, 826-27 (1950), our supreme court held that a temporary injunction in a divorce case is appealable under article 4662 just as is any other injunction. Thus, apart from the clear language of section 11.11(b), read in conjunction with section 11.19(a), that part of the trial court's order denying visitation right was appealable even prior to the adoption of the Texas Family Code.
In conclusion, since this court has jurisdiction of both the order removing the mother as permanent managing conservator and naming the father temporary managing conservator and the order denying the mother the right to visit her children during the pendency of the final hearing, I dissent from the order dismissing this appeal and adhere to the original opinion of this court.
NOTES
[1] We do not regard Martin v. Martin, 519 S.W.2d 900, 523 S.W.2d 252 (Tex.Civ.App. Houston [1st Dist.] 1975, no writ) as bearing on this question, since that order, which involved a temporary suspension of visitation privileges for a specified period, was not interlocutory in the sense of continuing only until another hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567287/ | 86 F.2d 868 (1936)
TINKOFF
v.
UNITED STATES.
No. 5471.
Circuit Court of Appeals, Seventh Circuit.
October 16, 1936.
Rehearing Denied January 15, 1937.
*869 *870 *871 *872 Paysoff Tinkoff, of Chicago, Ill., pro se.
Michael L. Igoe, U. S. Atty., of Chicago, Ill., Earl C. Crouter, Atty., Department of Justice, and Carl R. Perkins, and Edward J. Lawler, Jr., Sp. Attys., U. S. Treasury Department, all of Washington, D. C., and Leo J. Hassenauer, Asst. U. S. Atty., and E. Riley Campbell, Sp. Asst. U. S. Atty., both of Chicago, Ill.
*873 Before ALSCHULER, Circuit Judge, and LINDLEY and BALTZELL, District Judges.
LINDLEY, District Judge.
Appellant appeals from a conviction on an indictment returned June 14, 1932, charging him and one Newman with willful attempt to defeat and evade income taxes for the year 1928 due from Newman and two companies controlled by him. Newman pleaded guilty, and appellant was tried alone. He is a former revenue agent, a certified public accountant and a lawyer.
It appears that on December 6, 1934, after his appeal had been allowed and was pending, appellant was, against his protest, taken to the penitentiary at Leavenworth, there to serve the sentence of 18 months' imprisonment which the court had imposed, and that he remained there until December 2, 1935, when he was temporarily released by order of the United States Circuit Court of Appeals of the Tenth Circuit. It seems a petition for habeas corpus had been filed in the Kansas District Court, which court denied the relief, and, on appeal to the Circuit Court of Appeals, that court, holding that it was improper to commit him to the penitentiary against his will while his appeal from the judgment was pending, ordered him to be released for a limited time in order that he might in this court prosecute his appeal or other proceeding, which appears more fully from the report of that case in Tinkoff v. Zerbst (C.C.A.) 80 F.(2d) 464. This court having reinstated his appeal, which it had theretofore dismissed, extended the period of the release fixed by the court in the Tenth Circuit, and under such extension appellant is still at liberty on bond.
On June 15, 1934, appellant was found guilty on both counts of the indictment. On July 3d an order was entered fixing the time for filing bill of exceptions at 30 days. On July 24th the court continued till July 30th a motion for new trial. On the latter date the court overruled the motion for new trial and entered judgment of conviction, and on July 31st the court again fixed, as the time for filing bill of exceptions, September 3, 1934. On August 17th the court extended its stay of execution upon the sentence to October 15th. On August 31st defendant moved for an extension of time within which to file bill of exceptions and for a new trial, and same was continued until October 15th, and again on the latter date to November 3d. On October 26th defendant moved for allowance of an appeal. On October 30, 1934, upon appellant's motion, the court entered an order allowing the appeal and directed that it be entered nunc pro tunc as of July 31, 1934. On November 6th the stay of execution was further extended until November 30th, and motion for extension of time to file bill of exceptions was continued until November 30th. On November 30, 1934, the court denied appellant's second motion for new trial and fixed the appeal bond at $15,000. On December 1st the court entered an order extending the time for filing bill of exceptions to December 22d. On December 20th Mack, Wikoff & Ross, and Orville R. Seiter moved for leave to enter their appearance as additional counsel for appellant. Said motion was allowed. Counsel thereupon moved to extend further the time for filing bill of exceptions. This motion was denied. Defendant then moved for an order granting an appeal. This the court denied, obviously because a prior appeal had been perfected. The affidavit of Seiter recited that he was one of the attorneys for defendant at the time of the trial and participated therein; that appellant had been taken to the penitentiary upon commitment; that, because of the voluminous character of the record, additional time was required within which to file a bill of exceptions. Apparently, the court had in mind that the judgment of conviction had been entered in July, that the time expiring since that date was then ripening into 6 months and that further delay was not necessary, and that, had diligence been observed by appellant, he would not have needed to make the request.
On February 2, 1935, at a term succeeding that at which the last of the orders heretofore mentioned was entered, defendant obtained an extension of time for filing bill of exceptions. Thereafter upon motion this court dismissed the appeal, Tinkoff v. United States, 77 F.(2d) 1016, holding that, there being no bill of exceptions on file, there was nothing to review.
Later, the court, at the earnest solicitation of the appellant, vacated the order of dismissal and reinstated the appeal, and the government now contends that a bill of exceptions since prepared and filed is not properly a part of the record; that the *874 trial court was without jurisdiction to approve any bill of exception subsequent to the December term, 1934; that, upon the perfecting of the appeal, the trial court lost jurisdiction of the cause entirely except for the purpose of entering within that term such orders as were necessary for the filing of bills of exception; and that, the only motion made at the December term, 1934, for extending of time to file bill of exceptions having been denied, the orders of the District Court at subsequent terms are a nullity.
Let us examine first the question of whether appellant was diligent in presenting his second motion for new trial. After his original motion for new trial had been denied on July 30th, one month later, he made an oral motion based on alleged newly discovered evidence. Appellant admits that the newly discovered testimony relied upon came to his attention on July 31st, and it appears in the affidavit of his wife, filed in support of the motion, that on July 31st she obtained the information relied upon as constituting newly discovered evidence. Despite this knowledge in July, the facts were not sworn to until November 28th, almost 4 months later, or filed with the court, until November 30th. Appellant says that the trial judge was out of the district a large portion of this period, but that fact does not excuse his delay in bringing to the attention of the District Court the facts relied upon as constituting newly discovered evidence brought to his attention in July and not presented to the court until 4 months later. Only one conclusion can be drawn, and that is that defendant was courting delay in disposition of his second motion for new trial. Diligence is the all-important factor justifying extension of grace by the court. Knowlton v. Seneca Engineering Co. (D.C.) 36 F.(2d) 394. In Moss v. Equitable Life Insurance Co. of Iowa, 71 F.(2d) 795, 796 (C.C.A.8), the court properly said: "While it is well settled that a motion for a new trial in a law case, made with reasonable promptness after the entry of judgment, will toll the beginning of the statutory time within which an appeal can be taken, the benefits of this rule should not be extended to those who fail to act with reasonable diligence."
So here appellant, seeking relief, may not have extended to him the benefit of that to which he might have been entitled had he acted with reasonable diligence. When the defendant's motion for new trial was overruled on July 30th, if, on the following day, he became aware of what he considered vital newly discovered evidence, he owed a duty to present the same to the court with diligence. Failing to do so, he must be held to have abandoned the same. Consequently the rightfully final order from which an appeal could be taken was that of July 31, 1934.
Irrespective of this conclusion, however, we are confronted with a further and even more serious situation. Judgment of conviction was entered on July 30th. On October 27th appellant prayed an appeal but procured an order of the court fixing nunc pro tunc the time of prayer for and allowance of appeal as July 31, 1934. Whether we accept the earlier date of July 31st or the later one of October 27th is not of vital importance in this connection.
The effect of perfecting an appeal is to remove jurisdiction of the cause from the trial court. That tribunal has no power thereafter to enter any order with respect to the case other than such as has to do with bills of exception or preparation of the record. It has no jurisdiction after an appeal has been granted to act upon a motion for new trial, to reduce sentence, or otherwise modify or invalidate the judgment appealed from. It may at the same term properly vacate the order allowing the appeal, but, in the absence of such order of vacation, jurisdiction to deal with the judgment passes from the District Court to the Court of Appeals. The lodgment of a writ of error, the filing of notice of appeal, and the order allowing the appeal, all remove jurisdiction to the upper court. United States v. Habib et al. (C.C.A.) 72 F.(2d) 271; Levinson v. United States (C.C.A.) 32 F.(2d) 449; United States v. Radice (C.C.A.) 40 F. (2d) 445; United States v. Mayer, 235 U.S. 55, 35 S. Ct. 16, 59 L. Ed. 129; Rogers v. Watson (C.C.A.) 46 F.(2d) 753; Mayer v. Hickey (C.C.A.) 67 F.(2d) 489; Midland Terminal R. Co. v. Warinner, 294 F. 185 (C.C.A.8); Spirou v. United States, 24 F.(2d) 796 (C.C.A.2). It follows that, after the entry of the order allowing the appeal, the District Court had no jurisdiction to pass upon any motion to vacate the judgment or for new trial and that any order entered thereafter in that respect is a complete nullity.
*875 The District Court, however, may enter at the same term appropriate orders for the filing of bills of exception. From the history recited, it is apparent that several extensions for filing bills of exception were granted, the last expiring on December 22d, well nigh 6 months after the appeal had first been noted. Obviously the District Court was justified in believing that diligence had not been observed, and therefore on December 7th entered an order denying any further extension. No bill of exceptions properly could be approved by the District Court except one filed within the limit of December 22d or within such time as might be extended by any further order entered at that term. No such order was entered and the term expired in January, 1935. After its expiration, at the ensuing February term, 1935, the District Court again entered an order fixing the time for filing bill of exceptions. This order we consider an entire nullity, in view of the fact that the term at which the court might have fixed a time had expired. Such was the view of this court when it dismissed the appeal. Consequently the bill of exceptions presented subsequent to December 22, 1934, is a nullity.
Appellant contends, however, that the motion submitted on December 7th, by counsel who then entered their appearance for him, was not presented with his authority; that he was then confined in the penitentiary; that, in view of his imprisonment, the time for filing his bill of exceptions was thereby automatically extended; and that the effect of the order of December 7th was to deny him his legal rights. It appears, however, that counsel who entered their appearance for appellant filed an affidavit in which it was stated that one of them had appeared in the trial as associate counsel for appellant. The record discloses such counsel's participation at the trial. The attorneys were officers of the court, and there is nothing in the record to disclose any limitation upon the authority of appellant's attorneys other than his own affidavit that he did not authorize this representation. We find as a fact that counsel had authority to represent appellant in making the motion for extension of time for bill of exceptions, which was denied. Appellant says that, had he been present, he could have presented the matter himself. Probably true, but all the facts that he relied upon as material his confinement, the voluminous character of the record, the difficulty of assembling the same, were presented to the court, who was properly justified, as we have seen, in refusing further extension of time for the preparation of bill of exceptions as to a judgment, then almost 6 months old, beyond the date of December 22d. The court's discretion was wisely exercised. Defendant was not handicapped or injured. To have acted otherwise, it seems to us, would have been an abuse of discretion in favor of the appellant, encouraging dilatory tactics at the expense of diligence. We conclude, therefore, that the bill of exceptions now on file is one which we are powerless to receive and to consider.
However, in view of the circumstances of this case and the earnest plea of appellant, we are not satisfied to ground our decision upon the defendant's lack of diligence, his failure to comply with the law in perfecting his appeal, or his long delay in taking any steps to protect his rights, all indicative clearly of a desire to delay the process and the functions of the court. Rather we have preferred to study the record and to consider the cause upon its merits as if there were a valid bill of exceptions on file.
Appellant contends that the demurrer to his indictment was improperly overruled. The first count charged that appellant was employed by one Newman and by Newman corporations to aid, counsel, advise, and assist the taxpayers in the preparation and presentation of their income tax returns and that appellant, jointly with Newman, willfully attempted to defeat and evade a large portion of the tax, $130,767.96, representing the consolidated net income for 1928 of two Newman corporations, by preparing and filing a tax return of only $11,895.22. The second count charges a similar attempt to defeat and evade an income tax of $87,706.87 for Newman, individually, for the year 1928, by preparing and filing a return showing no tax due and payable. Each count is based upon section 146 (b) of the Revenue Act of 1928 (26 U.S.C.A. § 145 and note), which provides, in part, that any person who willfully attempts in any manner to evade or defeat any tax shall be guilty of a felony. Each count follows the language of the statute in a form which has been sustained by the courts. United States v. Troy, 293 U.S. 58, 55 S. Ct. 23, *876 79 L. Ed. 197, Capone v. United States, 56 F.(2d) 927 (C.C.A.7), certiorari denied 286 U.S. 553, 52 S. Ct. 503, 76 L. Ed. 1288; Emmich v. United States, 298 F. 5 (C.C.A.6), certiorari denied 266 U.S. 608, 45 S. Ct. 93, 69 L. Ed. 465; Gleckman v. United States, 80 F.(2d) 394 (C.C.A.8), certiorari denied February 10, 1936, 297 U.S. 709, 56 S. Ct. 501, 80 L. Ed. 996.
Section 1114 (c) of the Revenue Act of 1926 (44 Stat. 116, 26 U.S.C.A. § 1693 (b) (1), makes it a criminal offense willfully to aid or assist in the presentation of a false income tax return, and appellant insists that a conviction on the present charge under section 146 (b) is no bar to a further prosecution on section 1114 (c) of the Revenue Act of 1926. Appellant and Newman were jointly charged as principals with attempting to evade the corporation tax and the individual tax of Newman. The counts charged that appellant was employed to prepare and make such returns. He was under no duty to make a return as an officer or otherwise, but contracted with Newman to handle these tax matters. Had the charge against him been a failure to make a return or to pay the tax, it might have been reasonably necessary to allege and show a duty in that respect upon his part, but, when he is charged with willful effort to defeat the tax by presenting a false return, no allegation of duty upon the part of appellant is necessary. As the Supreme Court remarks, there is evidently no legislative purpose to exempt from punishment one who actively endeavors to defeat a tax, whatever his relationship to the taxpayer may be. United States v. Troy, supra; Levy v. United States, 271 F. 942 (C.C.A.3).
Nor is it any defect that the tax attempted to be evaded was that of another. The statute is so framed as to make liable any person who attempts willfully and unlawfully to evade the tax of himself or of any other person. Capone v. United States, 51 F.(2d) 609, 76 A.L.R. 1534 (C.C.A.7), certiorari denied 284 U.S. 669, 52 S. Ct. 44, 76 L. Ed. 566; United States v. Smith (D.C.) 13 F.(2d) 923; United States v. Miro, 60 F.(2d) 58 (C. C.A.2). Appellant may not have been an ordinary employee of the corporation. He probably was an independent contractor, but no exemption because of such latter relationship is extended by the act to one who attempts to evade or defeat a tax. United States v. Troy, supra.
Whether appellant might have been charged also under section 1114 (c) of the Revenue Act of 1926 is wholly immaterial. There is presented at this time no question of double punishment.
Appellant contends that the trial court erred in denying his motion for bill of particulars. Each count of the indictment went into unusually great detail in setting up facts, figures, amounts, dates, and transactions. It set forth clearly the alleged character of the evasions and the method and means by which the same were effectuated. Each count fully and sufficiently informed appellant of the charges against him; there was no abuse of the District Court's discretion in denying a bill of particulars. Paschen v. United States, 70 F.(2d) 491 (C.C.A.7); Price v. United States, 68 F.(2d) 133 (C.C.A.5), certiorari denied 292 U.S. 632, 54 S. Ct. 640, 78 L. Ed. 1486; United States v. Wexler (D. C.) 6 F. Supp. 258.
Appellant moved for an election of counts upon which the government would prosecute. All other counts were dismissed. The two counts here involved are similar in that they charge attempts to defeat income taxes, the first, those of the Newman corporations, and the second, those of Newman himself, for the same year. The record shows that the subject matter of each count was closely related to that of the other; that a large part of the evidence in support of each count was the same; that election would have served no good purpose so far as appellant is concerned, but would have involved him in two prolonged trials instead of one. The evidence discloses voluminous acts, in transactions closely connected and interrelated, within the language of section 1024 of the Revised Statutes (18 U.S.C.A. § 557) which permits trial of certain charges together. The offenses charged were of the same class and the defendants subjected to the same punishment. They involved closely related subject matter. The act is directly applicable. Pointer v. United States, 151 U.S. 396, 14 S. Ct. 410, 38 L. Ed. 208; Bedell v. United States, 78 F.(2d) 358 (C.C.A.8), certiorari denied 296 U.S. 628, 56 S. Ct. 151, 80 L. Ed. 447.
Appellant contends that the motion for a continuance on May 29, 1934, was *877 wrongfully overruled. The indictment was returned on June 14, 1932. Demurrers to it were overruled and motion for bill of particulars was heard and disposed of. Motions to require the government to elect were disposed of and the case was set for trial on February 6, 1933, May 10, 11, 15 and 23, 1934, and again on May 29, 1934. Appellant claims that he was unable to procure counsel. Although the indictment had been returned and appellant apprehended almost 2 years before, these facts were not brought to the attention of the court until May 21, 1934. Coupled with other circumstances in the record, this long delay was clearly indicative of a desire to postpone the trial. The record discloses that counsel who had been associated with appellant for 3 months participated with other counsel at the trial and at the counsel table. More than that, however, the court appointed experienced counsel to defend appellant. Such counsel satisfactorily performed his duties. He cross-examined the witnesses at length in detail and obviously with a clear conception of the issues involved. He made a lawyerlike defense in every particular. Appellant contends that counsel did not observe all of his suggestions; did not at all times follow such procedure as he (appellant) advised; and did not at all times bring out all of the evidence appellant desired or make such cross-examination as appellant desired. We have scrutinized the record carefully to ascertain if there was any possible degree of prejudice to appellant in this respect. Appellant himself was permitted by the court to participate in cross-examination of witnesses, even though his counsel had cross-examined fully and at length in great detail. Appellant participated in making suggestions and objections. The court at no time refused appellant permission to cross-examine, to examine, or to participate fully in the trial, but rather transcended the ordinary rules limiting cross-examination to one counsel for a party. We are satisfied from a reading of the record that appellant's participation did not help his cause and that he would have fared fully as well if he had given his counsel a free hand. The cross-examination of the witness Nora Newman by appellant is a good example of what we have in mind. The record discloses a trial skillfully conducted by counsel, including appellant, himself a lawyer, thorough cross-examination, proper arguments to the court in support of appellant's position and at considerable length, patient consideration by the court, and an obvious attempt by the court to give to appellant every element of a fair trial. The record discloses no possible prejudice to appellant in this connection. Quite the contrary. Were there the slightest evidence of such, we might be tempted to overlook the fact that necessity for the order of appointment of counsel was not presented for 2 years; that the fault was that of appellant. Clearly the question was one of discretion and was not abused. O'Brien v. United States, 51 F.(2d) 193 (C.C.A.7); Reynolds v. United States, 67 F.(2d) 216 (C.C.A.9); Hardy v. United States, 186 U.S. 224, 22 S. Ct. 889, 46 L. Ed. 1137; Isaacs v. United States, 159 U.S. 487, 16 S. Ct. 51, 40 L. Ed. 229.
Appellant insists that the prosecution was barred by the statute of limitations. The indictment was returned June 14, 1932, charging offenses on June 15, 1929, and September 16, 1929, less than 3 years from the date of its return. Furthermore, the 3-year period was extended on June 6, 1932, by section 1108 (a) of the Revenue Act of 1932. United States v. Clayton-Kennedy (D.C.) 2 F. Supp. 233, appeal dismissed 67 F.(2d) 988 (C.C.A.4).
Appellant filed a plea of abatement to the effect that there was no competent evidence against appellant before the grand jury which returned the indictment. The evidence showed that books and records of the company were before the grand jury and that an internal revenue agent testified there. The evidence fails to show what other documents were considered, and there is complete failure to show that there was no competent evidence before the jury. The court cannot inquire into the sufficiency of the evidence actually presented. Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; Cox v. Vaught, 52 F.(2d) 562 (C.C.A.10); Kastel v. United States, 23 F.(2d) 156 (C.C.A.2).
Appellant contends that error was committed in the cross-examination of himself. He testified that he was admitted to practice in 1923 before the Treasury Department and that he had continued in this specialized practice "up to the present time." Government's counsel then inquired of him if it was not true that he had not practiced before the Treasury Department all of the time to the date of the trial. Appellant answered that he had not; "that *878 a question of suspension arose." The government inquired as to the date of suspension and he replied that it was effective June 11, 1930. It would seem elementary that the cross-examination was within the purview of the direct examination, the witness having testified that he had practiced continuously before the Treasury Department, a fact which was material only to help acquaint the jury with the history of his professional life. He laid down the bars for a cross-examination bringing out the fact that he had been suspended. New York Alaska Gold Dredging Co. v. Walbridge, 76 F.(2d) 655 (C.C.A.9).
Closely related is the question of whether it was error to permit to be brought out in cross-examination the fact that, in connection with his suspension of practice before the Department, appellant had, without authority, raised the amount of a tax abatement bond from $480 to $524. He admitted that he had made the alteration, but insisted that he did so at the request of the internal revenue collector. There was no objection to the question, no motion to strike the testimony, and no exception preserved. Clearly, this is not reversible error. Paschen v. United States, 70 F.(2d) 491 (C.C.A.7); Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S. Ct. 435, 63 L. Ed. 853. Furthermore, appellant, having put in evidence the nature of his practice, its extent and duration, subjected himself to cross-examination upon such details arising therefrom as might affect what he intended to accomplish by his direct testimony.
Appellant urges further that Government's Exhibits N1-N8 inclusive, N100-N101, inclusive, and appellant's bill book were wrongfully taken to the jury room, intentionally or unintentionally. The record shows clearly that Exhibits N1-N8 were offered in evidence and were received, the court saying that all exhibits previously offered and not excluded were received in evidence. Government's Exhibits N100-N101 were identified and referred to by witnesses who testified. They were books of account and records produced for the purpose of verification of items used by auditors who testified and were made available to both sides for examination by such expert witnesses. They contain only facts that otherwise appeared in evidence. It is wholly immaterial whether they were offered or received or taken to the jury room. Burton v. Driggs, 20 Wall. 125, 136, 22 L. Ed. 299; Stephens v. United States, 41 F.(2d) 440 (C.C.A.9); United States v. Miller, 61 F.(2d) 947 (C. C.A.2).
The bill book contained carbon copies of numerous bills of appellant to clients, including Newman, some 664 in number. One of the jurors made an affidavit that the book was included in the exhibits taken to the jury room, but the evidence offered in this respect contains no showing that the book was examined or considered in any way by any member of the jury or in any way influenced their verdict. It and its contents were wholly irrelevant and immaterial to the issues. Affidavits of three witnesses were submitted by the government, including counsel who tried the case. They show that each party kept its own exhibits upon its own counsel table until the trial was ended, whereupon all the exhibits were placed upon a truck and taken into the jury room by the bailiff; that the government's representatives did not place this book upon the truck; that appellant was observed in the proximity of the truck and was required to state his purpose in being where he was; that the members of the jury did not examine the book; that it did not affect their deliberation or decision; that it was not considered by them; and that the book could have been placed on the truck only by appellant or his assistants. It was a personal record of appellant and not used by the government in any manner; it came from appellant's possession; and, if any prejudicial error resulted, possibility of which we cannot see, it must have arisen by reason of appellant's actions. Paschen v. United States, supra; Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150; Chadick v. United States, 77 F. (2d) 961 (C.C.A.5), certiorari denied October 14, 1935, 296 U.S. 609, 56 S. Ct. 126, 80 L. Ed. 432.
Attack is made upon the correctness of the amount charged in the indictment to have been evaded as a tax. Obviously it is not necessary that the government prove an evasion of all the tax charged. It is sufficient if any substantial portion of a tax was defeated and evaded. O'Brien v. United States, 51 F.(2d) 193 (C.C.A.7), certiorari denied 284 U.S. 673, 52 S. Ct. 129, 76 L. Ed. 569; Gleckman v. United States, 80 F.(2d) 394 (C.C.A.8), certiorari denied Feb. 10, 1936, 297 U.S. 709, 56 S. Ct. 501, 80 L. Ed. 996; United *879 States v. Miro, 60 F.(2d) 58 (C.C.A.2). The first count of the indictment charged willful attempts to defeat and evade $130,767.96 out of an income tax of $142,663.88. There was substantial evidence before the jury that the income tax due from the corporation for 1928 was $108,267.55 instead of $142,663.88, leaving a deficiency in tax paid of $96,371.63. The second count charged an evasion of $87,706.87 due from Newman. The evidence of the government tended to show that the tax due from Newman amounted to $101,609.75, instead of nothing as reported. There was substantial proof in this respect, sufficient to support the averments of the indictment. Willful intent is an intangible thing and direct proof of such is not necessary. Rather the question of willfulness is one of fact for the jury to be determined from all the circumstances. Capone v. United States, supra; United States v. Commerford, 64 F.(2d) 28, 30 (C.C.A.2), certiorari denied 289 U.S. 759, 53 S. Ct. 792, 77 L. Ed. 1502. There being substantial evidence in the record to support the conclusion that there was a willful attempt to evade, this court must abide by the finding of the jury. Paschen v. United States, supra; Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Segurola v. United States, 275 U.S. 106, 48 S. Ct. 77, 72 L. Ed. 186.
Appellant's motion to keep the jury together during the course of the trial was denied. There is no showing of any abuse of discretion and no error is suggested by the record. Liverpool & L. & G. Ins. Co. v. N. & M. Friedman Co., 133 F. 713 (C. C.A.6); Walton v. Wild Goose Mining & Trading Co., 123 F. 209 (C.C.A.9), certiorari denied 194 U.S. 631, 24 S. Ct. 856, 48 L. Ed. 1158.
Appellant insists that the jury read the daily newspapers containing articles prejudicial to him. The affidavits presented in this respect show that the publications were merely matter-of-fact news items, reporting only the transactions which appeared before the jury. There is no evidence that any juror was influenced in the slightest respect. Paschen v. United States, supra.
It is discretionary upon the part of the trial court to refuse to exclude the witnesses and no abuse of such discretion is apparent. Noone v. Olehy, 297 Ill. 160, 130 N.E. 476.
Appellant insists the court wrongfully admitted certain documentary evidence relating to a transaction of the same character in 1927. This evidence included checks, contracts, and other documents bearing upon withdrawal of income by Newman for the year 1927 by appellant and Newman, one as principal and the other as his tax specialist. They were admissible for their bearing upon the question of motive and intent in the plan followed in 1928 as well as in prior years. Allis v. United States, 155 U.S. 117, 15 S. Ct. 36, 39 L. Ed. 91; Chadick v. United States, supra; Emmich v. United States, supra; Wood v. United States, 16 Pet. 342, 10 L. Ed. 987. Furthermore, they were admissible because of their relationship to the occurrences with reference to 1928.
Appellant complains of the admission of a letter written by him to Newman on February 25, 1924, advising the latter that he was being unjustly burdened with excessive taxation and soliciting his business. We are not prepared to say that this exhibit did not have some bearing upon the question of appellant's good faith in supervising Newman's tax affairs and thus make the admission erroneous. It was evidence of appellant's method in soliciting business and procuring Newman's tax business and the relationship between the two. Similar in character is the letter written after one grand jury had failed to indict, in which appellant expressed his delight over the failure of the grand jury to act. We deem these letters immaterial, but they in no way prejudiced the appellant.
There are assignments of error as to the admission of certain testimony by Newman. It may be true that what Newman did is not binding upon appellant, but the jury was well advised as to the separate responsibility of each, and the testimony was proper to explain the manner in which the business was transacted and to show the relationship of the parties. Newman testified also as to actions begun against him by appellant and then dismissed. We do not consider the evidence of any relevance and materiality, but it certainly carried no prejudice to appellant.
We find no error in the hypothetical questions put to certain witnesses upon the question of the amount of tax. The assumptions were fairly based upon the evidence, *880 and the questions were proper and did not invade the province of the jury. Guzik v. United States, 54 F.(2d) 618 (C. C.A.7), certiorari denied 285 U.S. 545, 52 S. Ct. 395, 76 L. Ed. 937; Gleckman v. United States, supra.
Appellant insists that there was complete failure of proof that he had knowledge of the transactions involved. The record contains substantial evidence to show that appellant had direct information of all financial transactions giving rise to the income, and there was evidence also that certain facts were omitted from the returns because of falsification of records examined by him and his employees. True, it was necessary that there be connection of defendant with the transactions; but there was substantial evidence in this respect. The jury was carefully instructed that there could be no criminal liability upon the part of appellant for negligence, or for anything of which he did not have actual knowledge; that appellant was not responsible for what his employees knew unless such knowledge was actually brought home to him; and that the indictment required proof of actual knowledge and willfulness upon his part.
Appellant complains of certain allegedly wrongful refused charges to the jury. One of his objections is that the court should have charged specifically that appellant must have been under duty to make out the return that he must have been an employee. The trial court had called the jury's attention to the law in this respect. Any further charge was unnecessary.
We have examined the charge. It is full and complete in every respect. The court was careful to explain the degree of proof required, the presumption of innocence, and all rights of appellant. It gave full and complete instruction upon the nature of the offense included in the indictment, the proof necessary to sustain the same and the law governing, and included everything requested by appellant, except requests which were not well founded. All properly requested instructions refused are fully covered here by the general charges. Coffin v. United States, 162 U.S. 664, 16 S. Ct. 943, 40 L. Ed. 1109; Sandy White v. United States, 164 U.S. 100, 17 S. Ct. 38, 41 L. Ed. 365.
We have examined all assignments of error and have given full consideration to appellant's contentions with respect thereto. We find no error in any respect, and are compelled to affirm the judgment and remit appellant to the custody of the Attorney General for completion of his sentence, giving him credit for that portion thereof heretofore served.
This credit for that part of the sentence heretofore served requires some explanation. If the defendant's previous imprisonment was illegal, though, without so deciding, we are inclined otherwise, it might be urged that he would be entitled to no credit for the time served. Thus it has been held that, if a commitment is void, the prisoner's incarceration thereunder is technically illegal, at least until valid order can be entered. 16 C.J. 1329, citing Ross v. State, 8 Wyo. 351, 57 P. 924. The authorities are far from unanimous accord. See 16 C.J. 1315 and 1373; Jackson v. Com., 187 Ky. 760, 220 S.W. 1045, 9 A.L.R. 958; Kozlowski v. Board of Trustees, etc. (1921) 2 W. W. Harr.(32 Del.) 29, 118 A. 596; State v. Fairchild (1925) 136 Wash. 132, 238 P. 922; Owen v. Commonwealth (1926) 214 Ky. 394, 283 S.W. 400; Ex parte Perse (1926) 220 Mo. App. 406, 286 S.W. 733; In re Wilson (1927) 202 Cal. 341, 260 P. 542; Hofstetter v. Hollowell (Iowa 1927) 214 N.W. 698; Ex parte Phair (1934) 2 Cal.App.(2d) 669, 38 P.(2d) 826; Minto v. State (1913) 9 Ala.App. 95, 64 So. 369; In re Silva, 38 Cal. App. 98, 175 P. 481. If, however, his confinement was legal, there is no doubt that he must be credited with the time served. In view of our conclusion as to the latter issue, we shall not pass upon the former.
At the time the judgment was entered, rule 5 of Rules of Practice and Procedure in Criminal Cases, as promulgated by the Supreme Court in 1934, 292 U.S. 661 (28 U.S.C.A. following section 723a), had not yet become effective. Hence, in determining the question of legality of the imprisonment thus far, we must look to the law as it existed prior to such pronouncement.
The pertinent statutes are 28 U.S.C.A. §§ 869 and 874. Section 869 is as follows: "Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by direction of any department of the Government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal *881 to effect, and, if he fails to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid."
Section 874 reads as follows: "In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of a justice or judge of the appellate court. And in such cases where a writ of error may be a supersedeas, executions shall not issue until the expiration of ten days."
Until the promulgation of the present applicable rules, these statutes governed procedure in criminal cases. In re Claasen, 140 U.S. 200, 11 S. Ct. 735, 738, 35 L. Ed. 409; Hudson v. Parker, 156 U.S. 277, 15 S. Ct. 450, 39 L. Ed. 424; Kitchen v. Randolph, 93 U.S. 86, 23 L. Ed. 810.
As there is no constitutional right to an appeal in criminal cases, the court may, within its statutory powers, affix such conditions thereto as seem fit. United States v. St. Clair (C.C.A.) 42 F.(2d) 26.
By section 861a, title 28 U.S.C.A., writ of error was abolished and the relief obtainable thereby made procurable by appeal. By section 861b of the same title, however, Congress confined the relief under appeal to such as was formerly allowed under writ of error, and prescribed that the mode of exercising and invoking such relief, including costs, supersedeas, and mandate, provided for on writs of error, should apply to an appeal.
The immediate question is whether appellant, by perfecting his appeal on October 27, 1934, thereby automatically became entitled to a supersedeas. We are not to confuse this with admission to bail, for the latter is not obtained by supersedeas, but requires other security. Bennett v. United States (C.C.A.) 36 F.(2d) 475; United States v. Motlow (C.C.A.) 10 F.(2d) 657, per Butler, Seventh Circuit.
Appellant was directed to give security for his appearance upon appeal by December 6th; on December 7th, failing to secure bond, he surrendered and was taken to the penitentiary upon warrant of commitment. At no time did the trial court or any judge of the Court of Appeals direct that the order allowing appeal should operate as a supersedeas; at no time did appellant attempt to procure such direction. The language of the Supreme Court in In re Claasen, supra, is directly in point. There it was said: "Section * * * provides for the manner in which a supersedeas may be obtained on a writ of error. It is by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within 60 days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But, as there is no security required in a criminal case, the supersedeas may be obtained by merely serving the writ within the time prescribed without giving any security, provided the justice who signs the citation directs that the writ shall operate as a supersedeas, which he may do when no security is required or taken." (The italics are those of this court.)
Thus it will be observed that the Supreme Court has said that a supersedeas in criminal cases may be obtained by merely serving the writ within the time prescribed, without giving security, provided, however, that the judge who signs the citation shall direct that the writ shall operate as a supersedeas. To the same effect is Hudson v. Parker, 156 U.S. 277, 15 S. Ct. 450, 456, 39 L. Ed. 424, wherein it was held that a justice of the Supreme Court may grant a supersedeas when the writ does not of itself operate as a stay, as it does when filed and security is given within 60 days after the judgment complained of. The authority is permissive. The justice may grant the supersedeas, but he is not compelled to do so. In Solomon v. United States, 297 F. 95, 96, 97 (C.C.A.1), the court pointed out that, if a defendant should desire to stay process upon the judgment, he might serve his writ within the statutory period and give the security required by law within 60 days after the rendition of the judgment or thereafter, by permission of the judge or justice of the appellate court. It was said in the *882 latter case, "a stay is a matter of favor," and in McKnight v. United States, 113 F. 451 (C.C.A.6), the court held that the writ will operate as a supersedeas provided, however, that the judge signing the citation shall so direct.
In Mackin v. United States (C.C.) 23 F. 334, Judge Gresham said that it is within the discretion of the trial judge whether he will stay the sentence. To the same effect are United States v. Gibson (D.C.) 188 F. 396; United States v. McDonald (D.C.) 293 F. 433. In Cyclopedia of Federal Procedure, vol. 5, § 2507, the author, after reviewing the authorities, says that the allowance of a supersedeas under such facts as exist here rests in the discretion of the court.
In In re Claasen, supra, the court announced that in a criminal case supersedeas may be obtained by procuring direction by the judge who signs the citation that the writ shall operate as a supersedeas. The court remarked that there had previously been no applicable rule promulgated by the court, and at that time adopted rule 36 (28 U.S.C.A. following section 354 [rule 33 note]) specifically so providing. In Hudson v. Parker, supra, commenting on rule 36, the court said that it in effect provided that: "An appeal or a writ of error from a circuit court or a district court direct to this court, in the cases provided for in sections 5 and 6 of the act [of 1891] * * * may be allowed, in term time or in vacation, by any justice of this court, or by any circuit judge within his circuit, or by any district judge within his district, and the proper security be taken and the citation signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal." (Italics ours)
This rule was carried in substance through the subsequent promulgations of rules by the Supreme Court, appearing as rule 33 in the revision of 1925, 266 U.S. 678, rule 36 in the revision of 1928, appearing in 275 U.S. 620, and as rule 36 in revision of 1931, appearing in 286 U.S. 621 (28 U.S.C.A. following section 354). Consequently, it would seem to be well-established law that, until the adoption of the rules of 1934, a supersedeas in a criminal case was discretionary with the District Judge and with the justices or judges of the courts of review, and that, until same should be procured by an order directing that the writ be made a supersedeas, there was no stay of proceedings.
Rose in his work on Federal Jurisdiction and Procedure (2d Ed.) rather well states the rule as follows: "A judge or justice of the appellate tribunal may at his discretion allow a supersedeas even after sixty days, but only in the event that the writ of error has been issued within that time; that is to say, if the party aggrieved wishes to prevent his adversary from executing, he must sue out his writ of error and have his supersedeas bond allowed within ten days. If he wishes to be in a position to ask for a supersedeas at all he must obtain his writ of error within sixty days. If he does, he has the right within sixty days to supersede the judgment or decree. If he allows the sixty days to elapse, he may even then be allowed to supersede if, in the discretion of a judge of the appellate court, it is proper that he should, but if he has not sued out his writ of error within the sixty days he cannot in any way obtain a supersedeas" citing Kitchen v. Randolph, 93 U.S. 86, 23 L. Ed. 810.
We conclude, therefore, that at the time the judgment was entered it was the law that a defendant in a criminal case was entitled to have a writ of error (or, under the later statute, to appeal) as a matter of right; that such writ or appeal did not work a supersedeas unless the trial judge or justice of the court of review should so direct. Here there was no application for supersedeas. There was no order entered creating same, and appellant was properly, therefore, committed to the marshal for execution of the sentence. The imprisonment was in accordance with the law.
This conclusion is inevitable, wholly aside from any consideration of the further question of whether the trial court or a judge of the Court of Appeals had any right to make the appeal a supersedeas, in view of the fact that the appeal was not prayed within the time fixed by statute as the period within which it must be applied for, if a supersedeas is to be secured.
Sixty days having expired before the appeal was prayed, neither a justice of the Supreme Court nor a judge of the Court of Appeals had the power to allow *883 a supersedeas. Robinson v. Furber (C.C.) 189 F. 918. The service of a writ of error, or the perfection of an appeal, within sixty days, is an indispensable prerequisite to the allowance of a supersedeas, and it is not within the power of a judge or justice of an appellate court to grant a stay of process on the judgment, if this has not been complied with. Kitchen v. Randolph, 93 U.S. 86, 90, 23 L. Ed. 810; New England R. Co. v. Hyde (C.C.A.) 101 F. 397, certiorari denied (1901) 181 U.S. 619, 21 S. Ct. 924, 45 L. Ed. 1031. To supersede a judgment as a matter of right, a defendant must appeal within 60 days after the entry of the judgment and give the security required by law on issuing the citation. After the expiration of the 60 days, even though appeal has been prayed within that period, a supersedeas may be obtained only in the discretion of the judge. U. S. v. Shaffer (D.C.) 278 F. 549.
It appears that the nunc pro tunc order entered in October directing that the petition for appeal and the order allowing same be dated back as of July 31st are both a nullity, for, as the Supreme Court pointed out in Sage et al. v. Central R. Co., 93 U.S. 412, at page 418, 23 L. Ed. 933, a court cannot grant a supersedeas where a writ of error was not issued within 60 days, by ordering that the appeal shall relate back to a time within 60 days from the date of judgment. The court announced that, to make a nunc pro tunc order effective for such purposes, it must appear that the delay was the act of the court. Here there is no showing that there was any fault upon the part of the court in not allowing the appeal at an earlier date, but the record shows that the delay was wholly that of appellant. Consequently, the appeal must be taken as having been allowed 89 days after the judgment was entered and, though it was effective for the purposes of an appeal, it was not, under the then existing law, within sufficient time that is, 60 days to justify the court in granting a supersedeas, had it been requested.
The judgment is affirmed, with directions as above indicated.
On Petition for Rehearing.
ALSCHULER, Circuit Judge.
In so far as the voluminous petition presents and discusses matters heretofore considered and decided by us, we see no reason for awarding rehearing of them. A few propositions are for the first time in the case brought to our attention by petitioner. Of such, the only one deemed worthy of our discussion is as to the competency of Judge LINDLEY to sit on hearing of the appeal.
His disqualification is asserted on the ground that he had previously in the district court heard a motion for a search warrant for the seizure of books and records of Newman and his companies, upon the allegation that the books and records were fraudulent, and were used as a means of committing a felony under section 1114 (b) of the Revenue Act of 1926, 44 Stat. 116, and section 146(b) of the Revenue Act of 1928, 26 U.S.C.A. § 145 and note, and that upon hearing such motion he had entered an order for the search warrant to issue.
It is contended that, having thus heard and acted upon the motion, he became disqualified to sit on the appeal herein, under the proviso of section 216, tit. 28, U.S.C. (28 U.S.C.A. § 216), which is: "Provided, That no judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals.
It appears from the record that the search warrant was directed against Newman and his companies, and it was seizure of their books and records which was thereby sought. It nowhere appears that the search warrant was directly or indirectly sought against appellant, or that at the time the order was entered (May 13, 1930), there was pending or contemplated any charge or proceeding whatsoever against him. Indeed, it does not from the record appear that appellant was in any manner connected with the case as a defendant, actual or prospective, until more than two years after the order for the warrant was entered, when the indictment against him was returned (June 14, 1932).
It is of no consequence here what the status of Newman or his companies would have been with reference to this question, if this were their appeal. Suffice it now to say that the motion for the search warrant did not involve any "cause or question" wherein the appellant had lawful concern. *884 The books and records were not his, and in hearing the motion for the search warrant the District Court did not pass on any question respecting appellant.
Neither did this appeal involve any question respecting the search warrant which would nearly or remotely invoke the application here of the quoted proviso.
Besides, in our judgment, the contention comes too late to avail appellant. In all these long drawn out proceedings there was no such proposition brought to the attention of the court, the petition for rehearing being the first challenge thereof.
If one of the appellate judges had in fact previously heard in the district court the "cause or question" involved on the appeal, this would not of itself have deprived the appellate court, of jurisdiction. An appellant well aware of his rights might waive the point, and proceed before such appellate court with the hearing of his appeal. There is here no contention that the appellant, himself a lawyer of experience and for years attorney for Newman and his companies, was not fully cognizant of the situation. In such circumstances it would be quite intolerable to permit him to withhold presentation of the point until after the hearing of the appeal and its decision against him. In Delaney v. U. S., 263 U.S. 586, 44 S. Ct. 206, 207, 68 L. Ed. 462, the court, referring to the same statutory proviso as applied to a similar situation, said: "The section seems not to have attracted the attention or appreciation of petitioner until he had experimented with other means of review and relief from the conviction adjudged against him. It may be that he did not thereby waive the section which may express a policy and solicitude in the law to keep its tribunals free from bias or pre-judgment, rather than to afford a remedy to a litigant, yet it would seem that he should not be permitted to assume the competency of the tribunal to decide for him and its incompetency to decide against him. His action certainly suggests the idea that it was an afterthought with him that he was at any time in the situation from which the section was intended to relieve."
In State v. Coblentz, 169 Md. 159, 180 A. 266, 185 A. 350, the court, passing on a comparable issue, employed similar language.
Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1879577/ | 790 F. Supp. 1156 (1992)
Tyrone BROOKS, et al., Plaintiffs,
v.
GEORGIA STATE BOARD OF ELECTIONS, et al., Defendants.
No. CV 288-146.
United States District Court, S.D. Georgia, Brunswick Division.
April 22, 1992.
*1157 Laughlin McDonald, Kathleen L. Wilde, Neil Bradley, Atlanta, Ga., J. Gerald Hebert, Dept. of Justice, Civ. Rights Div., Washington, D.C., for plaintiffs.
David Frank Walbert, Walbert & Herman, Atlanta, Ga., for defendants.
Edmund Booth, pro se.
Before KRAVITCH, Circuit Judge, EDENFIELD, Chief District Judge, and BOWEN, District Judge.
ORDER
Once again this Court is called upon to fashion an equitable remedy in this Voting Rights Act case, which challenges Georgia statutes that create additional superior court judgeships. Before the Court is the Defendants' "Revised Motion to Extend the Current Injunction To Those Superior Court Judges Whose Terms Expire In 1992 And For Interim Relief Regarding Twelve Unfilled Judgeships." As we explain below, our decision is governed by the principles that guided us in our earlier remedial Orders, Brooks v. State Bd. of Elections, 775 F. Supp. 1470 (S.D.Ga.1989) ("Brooks I" or "the December 1, 1989 Order"), aff'd mem., ___ U.S. ___, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990) and Brooks v. State Bd. of Elections, 775 F. Supp. 1490 (S.D.Ga. 1990) ("Brooks II" or "the May 29, 1990 Order") (as corrected by Order of June 25, 1990), aff'd mem., ___ U.S. ___, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990). Following these principles, the Court GRANTS the Defendants' motion to extend the current injunction to allow the incumbent superior court judges whose terms will expire in 1992 to remain in their posts, pending certain specified contingencies, and DENIES the Defendants' request for interim relief with respect to the twelve, newly-created, unprecleared judgeships.
BACKGROUND
The facts of this Voting Rights Act case are set forth in our opinion granting the Plaintiff's motion for summary judgment, and granting the Plaintiff's motion for injunctive relief. See Brooks I, 775 F.Supp. at 1473-74. In this Order, the Court will discuss only those facts and related developments pertinent to the pending motion.
In our Order of December 1, 1989, we held that Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, applies to judicial elections. The Court also found *1158 that the Georgia legislature's creation of new judgeships is a "covered change" in a "standard, practice, or procedure with respect to voting" which triggers Section 5 scrutiny. Brooks I, 775 F.Supp. at 1475. We decided that the Plaintiffs would be entitled to "affirmative relief" if the Attorney General declined to reconsider his prior objection to the changes, or if, after reconsideration, he concluded that a particular change had a discriminatory purpose or effect. Id. at 1483. The remedial portion of our December 1, 1989 Order stated as follows:
We have no difficulty holding that the Governor may not appoint judges to any non-pre-cleared position created in 1989 until that position has been precleared. Further, we hold that in the case of a judgeship added to a pre-existing circuit, no further election can be held for that position if the position is not precleared. However, we believe it a proper exercise of our equitable discretion to permit incumbents to serve out their full terms, and do not declare unprecleared judgeships added to circuits with unchanged boundaries void until the date of the next scheduled election for the position.
Id.
On April 25, 1990, the Attorney General completed his review of the challenged statutes and declined to withdraw his objections to those statutes creating additional judgeships. The Attorney General also entered an objection to ten additional judgeships created by the Georgia legislature in 1989 and 1990.
The next day, the Defendants requested that we reconsider the remedial portion of our December 1, 1989 Order, which called for the elimination of the unprecleared judgeships at the end of the sitting incumbents' terms. After careful consideration, we modified the remedial portion of our December 1, 1989 Order to allow the twenty-six judges in unprecleared seats to remain in their posts, beyond the expiration of their terms in 1990, so that the Defendants could obtain judicial preclearance of the challenged statutes. We modified our Order in Brooks I, adding the following:
Provided that the State files a declaratory action within 90 days, incumbents whose terms end in 1990 may continue to serve in unprecleared judgeships until one of the following events occurs:
(a) our December 1, 1989 Order requiring preclearance is reversed by the Supreme Court;
(b) a declaratory judgment favorable to the defendants is obtained from a court of competent jurisdiction, as provided for in the Voting Rights Act;
(c) The state legislature of Georgia enacts a scheme for judicial elections which is precleared, and an election is conducted pursuant to that scheme.
Brooks II, 775 F.Supp. at 1491 (as corrected by Order of June 25, 1990). We also reiterated our position that "the most recently created judgeships, to which no judge has ever been elected, will continue to go unfilled until precleared." Id.
On August 24, 1990, the Defendants filed a declaratory action against the Attorney General in the United States District Court for the District of Columbia. See Georgia v. Barr, CV 90-2065 (D.D.C., filed Aug. 24, 1990). The Defendants filed the declaratory action within the ninety day period prescribed by our June 25, 1990 Order. In the declaratory action, the Defendants seek a declaratory judgment that "each and every one of the statutes at issue in this case have neither the purpose nor the effect of denying or abridging the right to vote on account of race or color, and that each and every one of said statutes may be enforced by [the state] without impediment on account of Section 5...." (Complaint for Declaratory Judgment at 11-12.) The Defendants also seek a declaratory judgment on other, related issues. The Brooks Plaintiffs are not party to the litigation in the District of Columbia. Both parties to this litigation, however, expect the declaratory action litigation to continue for another year or two.
ANALYSIS
The Defendants' motion to extend the current injunction and to obtain interim relief appeals to the equitable powers of *1159 this three-judge Court. We have limited discretion to fashion an appropriate injunctive remedy under Section 5. Brooks I, 775 F.Supp. at 1482 (citing Perkins v. Matthews, 400 U.S. 379, 396, 91 S. Ct. 431, 441, 27 L. Ed. 2d 476 (1971) and NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 183, 105 S. Ct. 1128, 1137-38, 84 L. Ed. 2d 124 (1985). "In fashioning its decree granting relief, [a three-judge court] should adopt a remedy that in all the circumstances of the case implements the mandate of § 5 in the most equitable and practicable manner and with least offense to its provisions." Clark v. Roemer, ___ U.S. ___, ___, 111 S. Ct. 2096, 2105, 114 L. Ed. 2d 691, 705 (1991). We now turn to the present request for injunctive and interim relief.
I. Extension of Terms of Incumbent Judges
The Defendants request that the Court permit the twenty-two incumbent judges whose terms will expire at the end of 1992, and who are not explicitly covered by this Court's earlier orders, to holdover. The Defendants argue that "[t]he need for judges to handle the vastly increasing litigation caseload is, if anything, more acute now than when this Court granted its original relief allowing the judges whose terms expired in 1990 to hold over." (Br.Supp.Defs.' Rev.Mot. Extend Current Inj. and for Interim Relief at 5.)
The Plaintiffs oppose this holdover relief because, they assert, it "tell[s] covered jurisdictions that the longer they delay complying with the Act, and the more `exigent circumstances' they are able to create, the more likely it is that their delays will be excused and their day of Section 5 reckoning postponed." (Br.Opp.Mot. Extend Current Inj. and for Additional Relief at 9 n. 4.) The Plaintiffs also contend that several of the grounds for our original decision to allow incumbent judges whose terms expired in 1990 to continue serving as judges are no longer valid.
In the earlier Order, we assumed that the need for an extension would be temporary because the Defendants would pursue judicial preclearance expeditiously. See Brooks II, 775 F.Supp. at 1491 n. 1. The Plaintiffs argue that this assumption has proven false because the Defendants' litigation strategy has prolonged the litigation in the district court for the District of Columbia. The Court will not penalize the Defendants for pursuing their legal position. As we noted in our Order of May 29, 1990, "issues of statewide importance lie in the balance" and "the issues in this case [may] warrant an adversarial proceeding." Brooks II, 775 F.Supp. at 1491. Plaintiffs have not shown that the Defendants have acted in bad faith in the District of Columbia litigation. Therefore, granting the requested relief will continue to "assure that the defendants will be able to seek judicial review of the statutes without the risk of serious disruption of Georgia's judiciary." Id.
Plaintiffs' prediction that the preclearance litigation in the District of Columbia is likely to last one or two more years underscores why the Court must extend the remedial relief to the twenty-two judges whose terms are about to expire. As we have explained previously, substantial disarray would result from simultaneously voiding judgeships when the incumbents' terms expire at the end of 1992: "If we were to set aside numerous judgeships abruptly, the remaining judges would be overwhelmed by the resulting increase in work and the court system thrown into disarray. This would be harmful to all citizens of the State, including minorities." Brooks I, 775 F.Supp. at 1484. Although the declaratory action is taking longer than we expected, we believe that this rationale for allowing incumbents to remain in office still applies. Plaintiffs argue that denying the present motion will permit an orderly reduction in the number of judges because the terms of only less than half of the sitting judges expire in 1992. A substantial reduction in the number of judges, no matter how orderly, will risk serious disruption of the judicial process in Georgia. Of course, should the Plaintiffs prevail in the declaratory action, the incumbents' terms will expire. Even in that event, however, the incumbent judges "may continue *1160 to serve in the unprecleared judgeships for 150 days." Brooks II, 775 F.Supp. at 1491.
We are mindful of the havoc to be wreaked if we hold that twenty-two unprecleared judgeships will become vacant at the end of 1992. We are also mindful, however, that each successive injunction may delay the expeditious resolution of this controversy. Accordingly, the Court extends its Order of May 29, 1990 to include the twenty-two judges sitting in unprecleared judgeships whose terms are due to expire on December 31, 1992. This extension will remain in force until the declaratory action in the District of Columbia is concluded, or until the Georgia legislature enacts a scheme for judicial elections which is precleared, and an election is conducted pursuant to that scheme. In no event, however, will the injunction extend beyond March 1, 1994, at which time the Court will entertain motions for reconsideration as to why further extension of its Order is warranted.
II. Interim Relief for the Twelve Newly Created Judgeships
The State argues that the Court should allow the Governor to appoint judges for an interim period to twelve unfilled judgeships, which were created by the Georgia legislature in 1989, 1990 and 1991. The State proposes a procedure that affords the Plaintiffs an opportunity to object to the Governor's appointment, and allows for judicial oversight. The State suggests that the interim judges appointed pursuant to this process should sit until the final resolution of the declaratory action and should be subject to the same terms and conditions as the originally challenged 48 judgeships.
This proposal does not merit much discussion. We have decided this issue in our previous remedial orders, which were affirmed by the Supreme Court, ___ U.S. ___, 111 S. Ct. 288, 112 L. Ed. 2d 243 (1990). In Brooks I and Brooks II, we held that the ten judgeships created in the 1989 and 1990 sessions of the General Assembly must remain unfilled until precleared: "We have no difficulty holding that the Governor may not appoint judges to any non-precleared position created in 1989 until that position has been precleared." Brooks I, 775 F.Supp. at 1483; Brooks II, 775 F.Supp. at 1491 ("The most recently created judgeships, to which no judge has ever been elected, will continue to go unfilled until precleared."). We now hold that the same rule applies to the two additional judgeships created by the 1992 legislature.
The State argues that the Court should grant interim relief for all twelve newly-created, unfilled judgeships because the caseload and concomitant need for judges has increased markedly since 1990, and because a final judgment in the District of Columbia litigation may not be entered for one or more years. Although we sympathize with the increasing caseload of superior court judges, and the burden on the citizens of the State of Georgia, we cannot grant this interim relief. There is a distinction between allowing incumbent judges to remain in their posts pending the outcome of the declaratory action, and allowing the Governor to appoint judges to newly-created, unprecleared judgeships. Moreover, we cannot accept the Defendants' argument that gubernatorial appointment would not violate Section 5. The Defendants contend that "plaintiff cannot possibly claim that anyone's voting rights would be adversely affected. The simple fact is that there would be no election, under this proposal, until preclearance occurred. Thus, there cannot possibly be any claim of discrimination against any black voters if the State's request is granted." (Defs.' Reply Br. at 5.) The Defendants' proposed procedure, although contemplated as a temporary measure, is a change that alters state election law, and must be precleared under Section 5. The Supreme Court has made clear that Section 5 applies to changes "affecting the creation or abolition of an elective office." Presley v. Etowah County Comm'n, ___ U.S. ___, ___, 112 S. Ct. 820, 822, 117 L. Ed. 2d 51, 63 (1992); see Allen v. Bd. of Elections, 393 U.S. 544, 569, 89 S. Ct. 817, 833, 22 L. Ed. 2d 1 (1969) (Section 5 applies to legislation making important county office appointive instead of elective). Our decision to permit the incumbent *1161 judges whose terms expired in 1990 and 1992 to remain in office, subject to certain contingencies, is a narrow exception to the general rule that "[i]f voting changes subjection to § 5 have not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting the State from implementing the changes." Clark v. Roemer, ___ U.S. ___, ___, 111 S. Ct. 2096, 2101, 114 L. Ed. 2d 691, 701 (1991) (citing Allen v. State Bd. of Elections, 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969)). Therefore, we deny the Defendants' motion for interim relief regarding the twelve newly-created, non-precleared judgeships.
CONCLUSION
For the reasons set forth above, the Court GRANTS the Defendants' motion to extend the current injunction to allow the incumbent superior court judges whose terms will expire in 1992 to remain in their posts, pending certain specified contingencies. The Court DENIES the Defendants' request for interim relief with respect to the twelve, newly-created, unprecleared judgeships. Our decision to grant the State of Georgia only part of the relief it requests is grounded in our prior remedial Orders and our interpretation of the Voting Rights Act.
SO ORDERED, this 22nd day of April, 1992.
BOWEN, District Judge, concurring specially.
I concur with the foregoing order only because its provisions are consistent with the majority's earlier opinion and the law of the land as announced by the Supreme Court. I observe, however, that the judicial system of Georgia is already in disarray. Dependent only upon the accident of who preceded them in office, some superior court judges are now freely engaged in contested elections while others are "holdovers" who don't presently have to run but who face an uncertain future. Meanwhile, the Governor appoints some judges to positions to which they can be later elected without hindrance, yet he cannot fill much-needed, newly-created positions because of the constraints of this litigation. The distinction is legalistic, arbitrary and nonsensical. If we had set out to contrive a set of circumstances which would demoralize the State's trial judiciary, frustrate the legitimate efforts of the State's Chief Executive, confuse the public, and actually retard the advancement of minorities, our effort would be crowned with success.
The courts have only given a logical, if debatable, interpretation to an Act of Congress. No one intended the present effect of the Voting Rights Act. Judges should not have any semblance of an identifiable constituency to whom they owe allegiance. The Congress should act courageously and quickly to extricate us from this mess. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460222/ | 253 P.3d 385 (2011)
STATE
v.
ENRIQUEZ.
No. 103810.
Court of Appeals of Kansas.
June 17, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568530/ | 41 F.2d 440 (1930)
STEPHENS et al.
v.
UNITED STATES.
No. 5775.
Circuit Court of Appeals, Ninth Circuit.
June 2, 1930.
*441 Raymond Benjamin, of San Francisco, Cal., and Otto Christensen, of Los Angeles, Cal., for appellant Stephens.
Benjamin F. Bledsoe, of Los Angeles, Cal., for appellant Wells.
Wright & McKee and C. M. Monroe, all of San Diego, Cal., David H. Cannon, of Los Angeles, Cal., and Morrison, Hohfeld, Foerster, Shuman & Clark, of San Francisco, Cal., for other appellants.
Before DIETRICH and WILBUR, Circuit Judges, and NETERER, District Judge.
DIETRICH, Circuit Judge.
The six appellants, Stephens, Spicer, Wotkyns, Hallawell, Wells, and Steward, were convicted upon all counts but one in an indictment returned May 24, 1928, charging them on each of the first seventeen counts with using the mails to defraud (Cr. Code, § 215, 18 USCA § 338), and in the eighteenth count with a conspiracy to commit such offenses. On motion of the district attorney the seventh count was dismissed and reference hereinafter made to the first seventeen counts will be understood as excluding this one. The charges all have to do with the transactions of inter-related partnerships and corporations of which appellants were officers or agents. The period covered thereby was from about January 1, 1919, to the latter part of December, 1926, at about which latter date the concerns became bankrupt. Generally speaking, they were engaged in California in purchasing issues of corporate stocks and bonds and selling such securities in small lots to the public. Essentially the fraud charged consisted in false representations made to the public in respect of these securities, and also touching sales of the stock of the corporations themselves and in the use by the defendants of the funds of the corporations.
Very briefly but adequately for present purposes, the defendants in their brief have *442 summarized the features of the alleged scheme to defraud as set forth in the first 17 counts of the indictment, as follows:
"(A) Failure by the defendants to deliver and intent of the defendants to take the money of the investors and never to deliver any securities whatever, as set out in paragraphs (1), (8), (9) and (10), and failure to return securities deposited as collateral, as set out in paragraph (5) supra.
"(B) Delivery by the defendants of securities, bonds, stocks and interim receipts of no value whatever, as set out in paragraphs (2), (3) and (4), supra.
"(C) Promises to purchase stock of Stephens & Company, from the investors and failure of both the defendants and the corporations to ever repurchase any of said stocks, as set out in paragraphs (6) and (11), supra.
"(D) Circulation of false financial statements and payments of dividends not from net earnings but from capital and false statements as to the earnings and profits; and that the investment in the stock of the corporation was a safe and profitable one, as set out in paragraph (12), supra.
"(E) Conversion of more than $200,000.00 by the defendants, the said defendants making no return or payment whatever therefor to the said corporations, as set out in paragraph (1), supra.
"(F) The false representations as to the value of the stock of Stephens & Company inasmuch as the stock was of little or no value, as set out in paragraph (13), supra.
"(G) The use of money and property of the said corporation (causing such assets to be diminished and depreciated) for the financing of the defendants' own private dealings, as set out in paragraph (14), supra."
The business originated with appellant Stephens, who soon thereafter associated with him the appellant Spicer, under the name of Stephens & Company. This was in 1909. In 1911, the business was incorporated under the name of Stephens & Company, with a capital stock of 250 shares of the par value of $100 each. As the business grew the capital stock was increased from time to time, in 1914 to $100,000, in 1919 to $1,000,000, with both common and preferred stock, and in 1922 to $2,000,000. Up to 1919 the stock was all owned by Stephens and Spicer. The company had an extensive organization covering the state of California, with offices in San Diego, Los Angeles, and San Francisco, and branch offices at Oakland and Pasadena. It had correspondents in eastern and European money centers, with private wire connections to New York, and held seats on the stock exchanges in Los Angeles and San Francisco. Because of certain restrictions of these exchanges, in 1917 a partnership was formed between Stephens and Spicer for the purpose of handling the brokerage branch of the business. About 1919 another corporation was formed, known as the "Public Lien & Realty Company," to which, under a permit from the corporation commissioner of the state, the assets of Stephens & Company were transferred, subject to all its debts and liabilities, in exchange for all the authorized capital stock of the transferee. It is to be inferred that the properties so transferred were, in the main, what are called "frozen assets." This course was pursued, so it is contended by appellants, to enable Stephens & Company to carry on its brokerage and investment banking business with greater facility and unhampered by these nonliquid assets.
In the latter part of 1922, or early in 1923, a new corporation was organized called Stephens and Company, under a recently enacted law of California permitting the organization of corporations with stock of no par value. It is the contention of appellants that the old company found itself in need of more capital to carry on its increasing business, and the purpose was to transfer all of the property and business interests of the old company to the new, and to acquire additional capital by selling the stock of the latter. However, efforts to have all of the stockholders of the old company exchange their stock for that of the new company were unsuccessful and, for that reason, the corporation commissioner would not permit the transfer of all of the assets of the old company to the new. The two, therefore, continued to do business until they collapsed and became bankrupt in December, 1926. In the record these companies are referred to as No. 1 and No. 2 and, during the life of the latter, they were apparently operated virtually as a single corporation, with the same personnel, but the old company, No. 1, was the more active, and in its name practically all of the business was transacted. In volume the business grew from $750,000 in 1911 to $22,000,000 in 1922, and the average volume during the period covered by the indictment was between $18,000,000 and $20,000,000 each year.
The transactions covered by the evidence did not, strictly speaking, constitute brokerage *443 business; that is, the company did not act as a mere agent in the purchase and sale of stocks for its clients. Its general course of business was to purchase the whole or a large part of an issue of corporation stocks or bonds and then, through its agents, make sales of small parcels thereof to the investing public. Instead of delivering the stock or bonds thus sold to a purchaser, it accepted the purchase price and issued what is referred to as an "Interim Receipt," entitling the purchaser to the delivery of the specific stocks or bonds described therein. In many cases these interim receipts were never honored, the aggregate amount thereof outstanding at the time of the bankruptcy proceedings being approximately $400,000; but upon receiving the purchase price it was by the company deposited to its credit and used in carrying on its business. It would seem from the testimony that at one time or another during the period covered by the indictment the company acquired title to the securities so sold, sufficient in kind and quantity to make the deliveries called for by these receipts, but, as at least one of the reasons why it did not make delivery, the appellants contend that in carrying on its business and in taking over large issues of such bonds and stocks, it became necessary to borrow funds from banks and in doing so it deposited such securities in block with the banks as collateral, with the result that it lost control of them and deliveries thereof could not immediately be made. As charged in the indictment and as is contended by the government, one element of the alleged fraudulent scheme was that the company would thus sell securities with knowledge that it could not make, and had no intention of making, delivery to the purchaser.
During all, or a part, of the period covered by the indictment, Stephens, Spicer, Wotkyns, and Hallawell were officers of the company. Stephens, president of the company, was the manager at San Francisco, where the administrative offices and the "control books" of the business were maintained. Spicer, a vice president, continued in charge of the original offices at San Diego. Wotkyns, also a vice president, was manager of the Los Angeles office. Hallawell, beginning as a bookkeeper in 1919, became the secretary in December, 1924. Steward began to work for the company in 1922 and later became manager of the branch office in Oakland. Wells began as a salesman in 1922 and later became manager of the branch office in Pasadena.
The transcript of the record is very voluminous and the briefs are of unusual length, many questions being discussed; and the problem of adequate treatment within the reasonable compass of an opinion is attended with great difficulty. The brevity of our comment on any particular specification must therefore not be taken as indicative of inadequacy of consideration.
In both form and substance the indictment and the several counts thereof are thought to be sufficient. The principal contention under this head relates to the conspiracy charge and particularly the averment of the overt acts. As is the common practice, after a description of the conspiracy, this count sets forth that "in pursuance of * * * and for the purpose of carrying out and to effect the object, design and purposes of said conspiracy * * * the hereinafter named defendants did commit the following overt acts." Thereupon the overt acts are particularly specified and described. The point urged is that in addition to such an allegation the indictment upon its face must show in what manner or how the alleged overt acts contributed to the furtherance of the conspiracy. We think the rule is well settled to the contrary.
No assignment is based upon instructions given or requests refused, and it must therefore be presumed that the charge to the jury was adequate and correct.
It may be well first to dispose of a preliminary question discussed at some length, particularly in appellants' reply brief. It is their position that no relation of trust arose between the company and purchasers from or through it and that the acceptance of a purchaser's money and the appropriation thereof to the company's own use without delivering the securities for which the payment was made did not constitute embezzlement; in short, that the company was not acting in the capacity of a brokerage agent but was rather a vendor of securities, and that therefore no fiduciary relation existed but only that of debtor and creditor, with the obligation on the company's part either to deliver the stock specified in the Interim Receipt as having been purchased or pay back the money. We need not decide the precise question, for under the indictment and evidence it is not of controlling importance. The charge is not of embezzlement but of using the mails to promote a scheme to defraud. If, in pursuance of a plan, the company sent out its agent to represent, and he did represent, to Jane Smith that it had for sale a certain security *444 of a stated value and thus induced her to purchase the same and to pay the price therefor, with the understanding that delivery would be made within a stated time, when it knew that because it did not own the security or because of its hypothecation it had put it beyond its control, it could not make such delivery and did not make it, but, nevertheless, devoted the money so paid to its own purposes and used the mails in furtherance of the transaction, an offense under the statute and the indictment was committed whether or not we characterize such use of the money as embezzlement. The conduct would constitute a fraud, having all the moral obliquity of, even though not constituting, embezzlement in a technical sense. It is quite inconceivable that any sensible, small investor, with a clear understanding that the company's obligation would be only such as appellants now assert, would have delivered his money to its agents.
We find no merit in the contention that inasmuch as by the indictment it is charged, in effect, that it was defendants' intention to defraud all who dealt with the company and that no securities were to be delivered to any of the purchasers, the evidence is insufficient because it tends to show only that some purchasers were so treated. The scheme or artifice proved is not so broad but is included within the charge and is identified therewith. It is not a case of alleging one offense and proving another entirely distinct therefrom. True, all the essential elements of the offense as it is defined by the statute must be established, but that is not to say that proofs showing one of the elements to be smaller or less flagrant than as alleged, fail to meet the requirement. One charged with a theft of $1,000 cannot escape conviction merely because the evidence discloses that the amount was only $900. Sasser et al. v. United States (C. C. A.) 29 F.(2d) 76.
Several of the contentions urged relate to the books and records of Stephens & Company and its allied concerns and the testimony of the expert accountants, Huling and Bryan. The prosecution had in some manner acquired possession of these books of account and records, approximately 250 volumes, and for convenience kept them in two rooms in the building where the trial was had. Former auditors and bookkeepers of the companies, after examining them and initialing them, testified that they were the books and records of the companies and all such books and records of which they had any knowledge. Huling and Bryan each testified that he had examined all the books and records of the company, and certain testimony they gave in the nature of data and computations was based thereon or deduced therefrom. Before such testimony was given, as appears from a colloquy in open court, it was in substance agreed that because the records were so voluminous they need not preliminarily be brought into the courtroom, that they should continue to be held in the rooms referred to, accessible to all parties, that if required the witness should in giving his testimony specify the volume relied upon, and that if, at any time, any book was desired, it would be brought into the courtroom. No one of the books was offered in evidence by any party, but toward the close of the government's case, at its request and with defendants' acquiescence, all the volumes so referred to as being in the two rooms were by the clerk marked for identification. It was not incumbent upon the prosecution to introduce the books in evidence. Such requirement would be fundamentally inconsistent with the reasons underlying the rule that qualified accountants may testify to computations, deductions, or summaries where the material facts to be shown can be ascertained only by the inspection of a large number of documents or the analysis of complicated accounts. Ordinarily the party offering such testimony should be required to produce in court or to make available for his opponent's use the documents and books used by the witness, but even that rule is not universally followed and where recognized it is subject to exceptions. Wigmore on Evidence (2d Ed.) § 1230; Burton v. Driggs, 20 Wall. (87 U. S.) 125, 22 L. Ed. 299.
Perhaps the point most seriously urged in this connection is that there is no testimony that the books stored in the two rooms and so identified by former employees of the companies were the identical books inspected by these two witnesses and used as the basis for their computations and deductions. It seems to be true that there is no express or direct testimony of that character. But as we construe the objections interposed they do not evince any intention on the part of defendants to raise such a question. Both on direct and cross examination it was apparently assumed that the witnesses were referring to the books stored in the two rooms and identified by former employees; and an inference of such identity would not be unwarranted.
Another contention in this group relates more particularly to the testimony of the witness Bryan. Referring to what appear to be *445 annual financial statements of Stephens & Company, he criticized them as not reflecting the true financial condition of the company as of the dates to which they relate. One of the criticisms was that they exhibited as assets, stocks or bonds which, as he contended the record showed, had either not been issued or of which the company had not acquired possession and ownership during the periods covered by the statements. Clearly, we think the objections made to this part of the testimony are without merit. The other criticism was that some of the statements exhibited items of stocks or bonds as assets at highly excessive overvaluations. In reaching his conclusion as to what would have been a reasonable valuation he frankly stated that he resorted to information not appearing in the books and records of the company. But it appears that he was not only a trained accountant in the strict sense, but that he had had long and wide experience in connection with business where it was necessary to observe and place valuations upon such securities, and, as he put it, he followed the same course in this case in resorting to sources of information touching value "as I have done all my life in valuing securities." While the propriety of receiving his testimony in this respect is not entirely free from doubt, we are of the view that the court did not abuse its discretion in admitting it, and that there was no prejudicial error.
Specific comment upon other objections referred to in the briefs as a part of this group is not thought to be necessary. Upon consideration we find them less debatable than those we have discussed.
The question whether there was a scheme, artifice, or conspiracy to defraud within the scope of the charges laid in the indictment was properly one for the jury. True, the evidence does not show that the defendants got together and expressly agreed upon a plan, the sole purpose of which was to deceive. And it may also be conceded that in their framework the organizations set up and operated by defendants were ostensibly legitimate and, in their original purpose, at least, some of them may have been intended only for the conduct of a lawful business in a lawful manner. But a business lawful in form and appearance does not escape the denunciation of the criminal statutes when it is commonly furthered by the use of deception and fraudulent practices. That in case of exigency, real or supposed, or when it was thought to be to their interest, the defendants were willing to resort to false statements or concealment of facts, the record scarcely leaves room for doubt. In one instance at least there was an expressed contempt for bankers and the rules of honest finance but, aside from that consideration, so frequently were securities shifted, statements manipulated and padded, "Dummy" assets set up, their own private interests furthered to the prejudice of the corporate business, and other irregular practices indulged, that the finding of a plan or scheme to which all the defendants assented and in which to some measure they all participated, to carry on the business by deceiving both the investing public and bankers would be fully warranted. To refer to a single phase of their activities: At times they had outstanding "Interim Receipts" for the purchase price of specific securities aggregating in excess of $1,000,000. Naturally many of the holders of these receipts were clamorous for the delivery of their securities for which they had paid and which, admittedly, they were entitled to receive. Not having the funds with which to complete the purchase of the securities requisite for that purpose or to redeem them from the banks holding them as collateral, defendants themselves, or through subordinate agents, went out and made new "sales" to other investors and, receiving the purchase price on account thereof, with the promise express or implied of prompt delivery, used the funds thus realized not for the purpose of fulfilling such promises but of quieting the clamor of the older investors by procuring and delivering to them their securities. Whatever the exigencies of the defendants' business, such a course was flagrantly fraudulent. Would it be seriously contended that if given any intimation that such was the condition of the company and that such use was to be made of his money, any sensible investor would have turned it over and been content with a mere receipt? Indeed, it is quite improbable that at any time during a period of several years preceding the utter collapse of the business in the latter part of 1926, would it have been possible for defendants upon a complete and truthful disclosure of the financial condition of their companies to have sold to investors, large or small, any considerable amount of stock in their companies, or other stocks or bonds in which they dealt, except upon simultaneous delivery of the latter. Under the conditions actually existing it was unlikely that sales of either class could be effected without deception, accomplished either by affirmative representations, concealment, or promises known to be impossible of fulfillment or not intended to be kept.
*446 In what we have said under this head we are not to be understood as necessarily holding that the evidence is sufficient to establish the scheme in all of the ramifications alleged. For example, as charged it contemplated, among other wrongs, the misappropriation by defendants and the conversion to their own use of funds and assets of the company approximating $200,000. This is a distinct feature, having no direct or necessary relation to that part of the scheme covering the sales of securities by false representations and other deceptive practices. Obviously, we think, a conviction might have been sustained if no evidence at all had been offered in support of this specific branch of the case. Evidence there was upon the point, but whether or not it would be sufficient to support a conviction in the absence of evidence upon the other, more general, phases of the alleged scheme we have not fully considered, for whatever the answer it would not affect the result. Sasser et al. v. United States (C. C. A.) 29 F.(2d) 76.
Grouped together in the briefs are certain alleged errors respecting the reception in evidence of what are referred to as "inter-office memoranda," that is, letters, memoranda, and other writings passing from one officer or employee to another in the regular course of business. Appellants assert that there were more than five hundred pieces altogether offered in evidence in connection with the testimony of former office employees who, at least to some extent, identified them. To many of them no objection was interposed, and where objections were made, apparently little care was taken to discriminate between cases where rejection of the offer would clearly have been erroneous and other cases where the question was debatable. With the statement that it would be impracticable to assign error as to each, appellants specify and argue only six, namely, Nos. 338, 381, 383, 386, 390, and 478. Presumably these afford bases for objections quite as substantial as any others that might be specified.
The witness Stowell, for a long period acting as auditor and in other capacities in the office of the company, identified No. 338 as a carbon copy of a letter he wrote and sent. It bears date March 3, 1922, and is addressed RDS. (copy GCS.) From Stowell's testimony as a whole touching office usage and his specific explanation of this paper, it was clearly a fair conclusion that the original was sent to defendant Spicer and a copy to defendant Stephens, and the objection is thought to be devoid of merit.
Exhibits Nos. 381, 383, and 386 are all in approximately the same posture. Each consists of a group of letters which the prosecution contended were written by and to defendant Stephens. The district attorney, without challenge from the defendants, stated in open court that these papers, together with the others referred to under this head, had been delivered to his office by the trustee in bankruptcy from the files of Stephens & Company, whose estate was in the course of bankruptcy administration. A witness who for about six years, including the dates of the several documents embraced in these exhibits, was Stephens' private secretary, though testifying with apparent reluctance, sufficiently identified the papers. This she did by reference to initials customarily used, form, structure, and phraseology, with all of which she was familiar. No error was committed in receiving them.
Exhibit No. 478, dated June 16, 1924, the government contended was a copy of a letter written by defendant Spicer. Margaret K. Prindegast testified that during the years 1924, 1925, and 1926, she was Spicer's secretary and took dictation from him. She was unable to say whether this particular letter was so dictated, but she identified her initials shown thereon and those of Spicer, and she further stated that she knew of no other person using such initials. We think a prima facie case of identification was made out.
No. 390, which the government contends is a copy of a letter written by defendant Steward, manager of the local office, was in substantially the same manner and to the same extent identified by a witness who for a long period acted as his secretary.
As to the group of letters covered by No. 386, it is further contended that the court permitted them to be read to the jury though they had not been formally introduced in evidence. In the trial the course pursued was often to identify and introduce many exhibits in succession without at once reading them to the jury. When, some time after No. 386 was identified, the district attorney started to read it to the jury in connection with other evidence, one of the attorneys for defendant interposed, "That is for identification," to which the District Attorney replied, "It is in evidence." The reading then proceeded without any request for or obtaining a ruling of the court. It may be that the exhibit had not up to that time been formally put in evidence but, as already indicated, it had been sufficiently identified and was thus read in *447 evidence without further objection or any ruling or exception. That counsel for defendants understood it was put in evidence either at the time it was identified or at this time is shown by the fact that later on they moved to strike it out. We find no error under this head.
Assuming for the time being that a scheme to defraud and a conspiracy were shown, defendants further contend, as to each count, the evidence was insufficient to establish that there was a use of the mails as charged in the first seventeen counts or the commission of the overt acts charged in the eighteenth count, and also, if the mailing and overt acts be admitted, that they were done in furtherance of the scheme or conspiracy. It is of course conceded by the government that to establish the offenses charged both elements or conditions must be shown. The probative value and reach of the direct or positive evidence upon either one of these issues often very meager cannot be justly appreciated without knowledge of the very many circumstances, proximate and remote, tending to supplement it and enlarge its scope. These it would be well-nigh impossible to reproduce, and, manifestly, to comment adequately upon each point separately as to every count would extend the opinion beyond a reasonable length. After a somewhat laborious investigation of the record we must therefore be content with the statement of what is little more than our conclusions. Considering the course of the trial and all the circumstances in evidence, we are of the opinion that the question whether there was a use of the mails as alleged was properly for the jury under counts 1, 2, 3, 4, 5, 6, 8, 11, 14, 15, 16, and 17, but that the evidence was, as a matter of law, insufficient under counts 9, 10, 12, and 13. Where, as in such case, the issue turns upon circumstantial evidence, it is difficult to find an exact precedent, but see Stokes v. United States, 157 U.S. 191, 192, 15 S. Ct. 617, 39 L. Ed. 667; Sasser v. United States (C. C. A.) 29 F.(2d) 76; Rasmussen v. United States (C. C. A.) 8 F.(2d) 948; Lewis v. United States (C. C. A.) 38 F.(2d) 406; Krotkiewicz v. United States (C. C. A.) 19 F.(2d) 421; Barnard v. United States (C. C. A.) 16 F.(2d) 451; Levinson v. United States (C. C. A.) 5 F.(2d) 567; Horn v. United States (C. C. A.) 182 F. 721. Though in respect to certain circumstances they are distinguishable, it may be that Freeman v. United States (C. C. A.) 20 F.(2d) 748, Brady v. United States (C. C. A.) 24 F.(2d) 399, and Beck v. United States (C. C. A.) 33 F.(2d) 107 cases much relied upon by defendants adhere to a more exacting standard of positive or direct proofs, but, if so, we are unable to follow them to the full extent.
In respect of the question whether such use of the mails was in the "execution" of the "scheme" to defraud, defendants' position is, in the main, that the business conducted by them is not shown to have been wholly fraudulent, in all of its branches, and that the mailings were made in the promotion of the lawful features, or at least that the evidence fails to show any connection with those branches which were promoted by deception and false pretenses. But direct connection was not requisite. The business was a single general enterprise, and a lawful activity in the course thereof might very well have made a material contribution to the success of another activity illegitimate in its purpose or fraudulent in the means used in carrying it forward. Where an enterprise contemplates dealings with the public on a large scale for a long period, it would be a short-sighted policy on the part of the promoter to attempt to deceive all, particularly in the earlier stages of the promotion. The fair or generous treatment of one person in a community with attendant publicity might very well serve as bait to attract others and render them more susceptible to fraudulent practices. So, satisfaction of the complaints of a troublesome customer might allay the suspicion of others and postpone or ward off threatened investigation in cases where fraud had been employed. If fraudulent in important and continuing branches of its activities, the enterprise as a whole may properly be characterized as a fraudulent scheme. Brady v. United States (C. C. A.) 26 F.(2d) 400.
Applying these principles we have reached the conclusion that while as to some of the counts, particularly 1, 2, and 11, the evidence is meager, it was sufficient to go to the jury upon the twelve counts in respect of which we have held mailing was shown.
Little need be added touching the eighteenth, or conspiracy, charge. It is generally recognized that when two or more persons engage in a scheme to defraud, to that extent they become coconspirators. We have already held the evidence warrants a finding that such a scheme was formed and that the defendants knowingly participated therein. This scheme undoubtedly contemplated the use of the mails in its execution, and, that being true, it follows that whether or not a conspiracy was entered into to violate section 215 of the Criminal Code (18 USCA § 338), as charged, was for the jury. The only remaining question is whether at least one of the overt acts alleged was in fact committed, *448 and for the purpose of furthering the object of the conspiracy. That they were all committed is scarcely open to controversy, and we are of the opinion that there was sufficient evidence to take the case to the jury upon the other branch of the question.
By an elaborate argument in the form of a supplementary brief on behalf of appellant Stephens, the contention is made that, all else aside, it is shown that the charges against him were barred by the statute of limitations. Its consideration in connection with the 18th count will suffice. We have already noted that the indictment was returned on May 24, 1928. Stephens' position is that he withdrew from the business in December, 1924, or January, 1925, and thereafter had no interest therein or connection therewith, within the three-year period of limitations. He himself did not give testimony and, while asserting the incompetency of contemporaneous statements of other officers to the effect that his connection continued at least up to about June 15, 1925, he relies largely upon other statements of like status, upon his own self-serving declarations, and upon remote and strained inferences. But we do not find ourselves under the necessity of determining just what change or changes were actually made in his relations to the business in December, 1924, or January, 1925. Undoubtedly during the latter month he left for Europe and, after an absence of about five or six months, returned to San Francisco. The government contends that if he severed his connection at all it was not until after his return; and this view receives strong inferential support from his own conduct. On or about June 15, 1925, he wrote letters of the same form to Wells and Leavitt, both of whom held highly responsible positions with the company and upon its behalf dealt directly with the public. One of these, addressed to Wells, branch manager for the company at Pasadena, is set up as a second overt act under the conspiracy charge. It reads:
"Dear Mr. Wells: By the time you receive this you will have probably heard of my retirement from the company. Some of my personal affairs have recently developed to a point where much of my time is going to be required, and it did not seem fair to the company that I should continue to draw a salary when I was unable to give my full time to its business. No other changes, I am sure, are contemplated, and things will of course go on just the same as before.
"Wishing you continued success, I am
"Sincerely yours,
"[Signed] G. C. Stephens."
It is scarcely credible that he would have used such language in referring to a "retirement" consummated six months earlier, "By the time you receive this you will probably have heard," etc., "Some of my personal affairs have recently developed," etc. (Italics ours.) If in good faith and openly he had severed all connection with the business six months before, he would naturally assume that at least the major representatives of the company, like Wells and Leavitt, would have knowledge of it, or if unexpectedly he learned that they were ignorant of so important a fact, naturally he would have intimated surprise and would have advised them of the approximate date of his withdrawal. But assuming that he did in fact retire about January 1st as contended, manifestly no publicity was given; if those with whom he had been closely associated in the enterprise were ignorant of his withdrawal knowledge could hardly be imputed to the general public. He, with others, had set up and engineered an organization which for a long period had dealt fraudulently with the public and had used the mails for that purpose. He could not secretly withdraw and without doing more, disclaim responsibility for the continuing operation of a machine he had thus set in motion. In Hyde v. United States, 225 U.S. 369, 32 S. Ct. 793, 803, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, it was said:
"The conspiracy accomplished or having a distinct period of accomplishment is different from one that is to be continuous. If it may continue, it would seem necessarily to follow the relation of the conspirators to it must continue, being to it during its life as it was to it the moment it was brought into life. If each conspirator was the agent of the others at the latter time, he remains an agent during all of the former time. This view does not, as it is contended, take the defense of the statute of limitations from conspiracies. It allows it to all, but makes its application different. Nor does it take from a conspirator the power to withdraw from the execution of the offense or to avert a continuing criminality. It requires affirmative action, but certainly that is no hardship. Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished, he is still offending."
The case is very different from Buhler v. United States (C. C. A.) 33 F.(2d) 382.
*449 Counsel place emphasis upon the first sentence of this letter with the comment that it is a mere recital of a past event and argue that therefore the writing of it could not have contributed to the furtherance of the scheme or unlawful conspiracy. But in its entirety it was much more than that. It was manifestly intended to allay fears that the writer's withdrawal would prejudicially affect the business and to encourage the addressee to continue with it and carry it forward. That upon the announcement at this time of his retirement, there was deep concern lest as a result of suspicion and inquiries which were likely to follow, the whole enterprise would collapse, the record leaves no doubt. In short, not only did the defendant fail at the earlier date openly to disavow or otherwise do what was requisite to set in motion the statute of limitations, but at this time and within the three-year period, by his assurances he affirmatively contributed to the further execution of the unlawful enterprise.
On behalf of appellant Wells it is argued that, granting the validity of the judgment against the others, the evidence does not warrant a finding that he knowingly or "consciously" participated in the unlawful scheme or conspiracy; but upon a careful review we find it ample. True he did not play a major part, but that consideration concerns the degree of his moral delinquency. To it the trial court gave weight, for by the judgment punishment of imprisonment was imposed upon only Stephens, Spicer, and Wotkyns, whose relations to the conspiracy were such as to charge them with greater responsibility and render them more culpable than the other defendants for its fraudulent policies.
No other specifications of error have impressed us as requiring specific comment.
Judgment affirmed upon all counts except Nos. 9, 10, 12, and 13, and upon each of these four it is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568947/ | 29 So. 3d 502 (2010)
In re Oliver W. JOHNSON, III.
No. 2009-B-2742.
Supreme Court of Louisiana.
March 12, 2010.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel ("ODC") filed this reciprocal discipline proceeding against respondent, Oliver W. Johnson, III, an attorney licensed to practice law in the States of Louisiana and South Carolina, based upon discipline imposed by the Supreme Court of South Carolina.
UNDERLYING FACTS AND PROCEDURAL HISTORY
On November 9, 2009, the Supreme Court of South Carolina issued an order *503 disbarring respondent from the practice of law based on evidence of his misconduct, including: the misappropriation of a portion of a $700,000 settlement fund; failure to properly disperse funds from a conservatorship account; failure to properly deliver estate settlement funds that were to be used for litigation purposes; failure to represent clients diligently and communicate with them, failure to pay a court reporter, an expert witness, and a final fee dispute award; failure to cooperate with the disciplinary agency's investigation; the incurrence of numerous tax liens and orders related to his child support arrearages; and pleading guilty to tax evasion, and to assault and battery. In re Johnson, 385 S.C. 501, 685 S.E.2d 610 (2009).
After receiving the South Carolina disbarment judgment, the ODC filed a petition to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the petition was a certified copy of the order of the Supreme Court of South Carolina. On December 22, 2009, we rendered an order giving respondent thirty days to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted, and the reasons for that claim. Respondent failed to file any response in this court.
DISCUSSION
The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:
Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.
In the instant case, respondent has made no showing of infirmities in the South Carolina proceeding, nor do we discern any from our review of the record. Furthermore, we find no extraordinary circumstances which warrant deviation from the sanction imposed by the Supreme Court of South Carolina. We have held that "only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction." In re: Aulston, 05-1546 (La.1/13/06), 918 So. 2d 461. Considering that we share authority over respondent with South Carolina, we will defer to that state's determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) ("there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory *504 authority"). Accordingly, we will impose reciprocal discipline of disbarment pursuant to Supreme Court Rule XIX, § 21.
DECREE
Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Oliver W. Johnson, III, Louisiana Bar Roll number 18624, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys, and his license to practice law in the State of Louisiana shall be revoked.
NOTES
[*] Chief Justice Kimball not participating in the opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568962/ | 574 S.W.2d 352 (1978)
Darrell CARTER, in his Individual capacity and as Superintendent and as Secretary of the Monroe County School Board, Dr. James E. Carter, Almond Headrick, Dr. Royce McPherson, Denton Gettings, and Owen Holland, in their Individual capacities and as members of the Board of Education of Monroe County, Kentucky, and the Monroe County Board of Education, a/k/a, Monroe County School District, Appellants,
v.
Virginia CRAIG, Appellee.
Court of Appeals of Kentucky.
November 17, 1978.
*353 James C. Jernigan, Tompkinsville, for appellants.
William J. Parker, Harlin, Parker & Rudloff, Bowling Green, for appellee.
Before HAYES, PARK and REYNOLDS, JJ.
HAYES, Judge.
The appellee, Virginia Craig, has been employed as a teacher in the Monroe County School System for nineteen (19) years and is a "tenured" teacher. She taught at Gamaliel, Kentucky, from 1957 to 1971, and at Fountain Run, Kentucky, from 1971 until the spring of 1975.
In February, 1975, a delegation of parents of school children taught by appellee at Fountain Run School protested appellee's excessive use of corporal punishment and the delegation asked the Monroe School Board to fire appellee. Charges, in writing, were brought against appellee by the Board on February 10, 1975. Craig responded in a letter to the Board requesting a hearing on the charges and she asked further that she be transferred from Fountain Run to the Tompkinsville School System. The record does not contain the notice given by the Board to appellee. Apparently no hearing was held on these charges and by mutual agreement Craig was transferred to the Tompkinsville School District in March, 1975.
Appellee finished the 1974-1975 school year as a librarian at Tompkinsville Elementary and she was rehired for the school year 1975-1976, as a mathematics teacher.
On June 10, 1976, appellee received a notice of her termination as a teacher because of mental disability, failure to maintain discipline, insubordination and a general history of unsatisfactory employment.
A hearing on the charges against appellee was held on July 6, 1976. Appellee was represented by counsel and protested the notice of charges as not being sufficiently specific enough in order to permit her to prepare an adequate defense. She also requested that she be permitted to voir dire the school board members to determine whether the members could sit as an impartial tribunal. Both of the above requests by appellee were denied by the Board.
The cause proceeded, after a three (3) week continuance, numerous witnesses testified, and the Board finally concluded that appellee's position as a teacher be terminated.
Craig appealed to the Monroe Circuit Court. She, even though entitled to under KRS 161.790(6), offered no additional proof at this de novo hearing.
The trial court concluded that Craig had been improperly dismissed because (1) the refusal of the Board to submit to voir dire examination was error; (2) the charges were not specific enough to meet the requirement of KRS 161.790(3); (3) none of the charges were substantiated by competent evidence; (4) none of the charges were supported by written records of teacher performance required by KRS 161.790(2)(a); (5) there was no written statement identifying Craig's problems or difficulties as required *354 by KRS 161.790(1)(d); (6) the action of the Board was void because it was taken during a closed session of the Board in violation of KRS 61.810; and finally, (7) the Board erred in not making findings of fact to support their conclusions.
The trial court ordered the teacher reinstated. The Board appeals contending the trial court was wrong on all counts.
In order to properly determine whether or not the trial court has erred, it seems to us that we first have to determine our proper scope of review. Ordinarily, review of a decision of an administrative body is limited to determining whether that body's decision is supported by substantial evidence, or put another way, whether the decision is unreasonable or arbitrary.
However, appeals from decisions of school boards are not subject to such a limited review as above because of the requirements of KRS 161.790(6). Therein it is stated, inter alia, that:
(6) The teacher shall have a right to make an appeal both as to law and as to fact to the circuit court. . . . The court shall examine the transcript and record of the hearing before the board of education and shall hold such additional hearings as it may deem advisable, at which it may consider other evidence in addition to such transcript and record.
. . .
This statute gives the teacher a trial de novo in circuit court.[1] The trial court here made specific findings of fact and conclusions of law. We conceive our scope of review to be, therefore, one governed by CR 52.01. Was the trial court clearly erroneous in its findings and conclusions?
The trial court determined it was error for the Board to refuse to submit to voir dire, citing Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). That case, as we interpret it, does not stand for the proposition that refusal of the Board to submit to voir dire is reversible error. In Osborne, the Court of Appeals was faced with the rule of law in Board of Education v. Chattin, Ky., 376 S.W.2d 693 (1964) which was that, upon appeal, the circuit court was limited to an examination of the record of the proceedings held before the school board. Chattin was decided before KRS 161.790(6) was enacted. Therefore, under Chattin, if the teacher could not have spread upon the record the bias or predilection of the board members, there was no adequate review in circuit court and thus a denial of due process. Osborne overruled Chattin on this point, and held that the Board should submit to examination by the teacher; however, it was indicated in Osborne that the de novo provisions of KRS 161.790(6) would remedy that situation.
We believe that KRS 161.790(6) corrects the Board's procedural deficiency of not submitting to voir dire. As Justice Palmore stated in Bell v. Board of Education of McCreary County, Ky., 450 S.W.2d 229, 232 (1970), ". . . the field of battle was not in the proceedings of the school board, but in the circuit court." Under CR 26 the teacher was free to subject the school board members to interrogation at any time after the appeal to circuit court. As a matter of fact, the United States Supreme Court, as early as 1884, rejected a contention that due process was violated by administrative actions that denied even an opportunity to be heard at all where a hearing is subsequently allowed to a competent tribunal before the administrative body's decision could become final and irrevocable. Hagar v. Reclamation District, 111 U.S. 701, 4 S. Ct. 663, 28 L. Ed. 569 (1884). It is apparent that the denial of any hearing is much more unfair than the denial of examination of board members, as we have in the present case.
There is an additional reason why the trial court was clearly erroneous in determining that the lack of opportunity to voir dire the school board members was *355 error. It is the so called "rule of necessity" enunciated in Evans v. Gore, 253 U.S. 245, 40 S. Ct. 550, 64 L. Ed. 887 (1920). In that famous case, the issue concerned the validity of taxing income of federal judges, including Supreme Court Justices. Therein, the United States Supreme Court stated:
. . . because of the individual relation of the members of this court to the question, thus broadly stated, we cannot but regret that its solution falls to us. . . . The plaintiff was entitled by law to invoke our decision . . . and there was no other appellate tribunal to which under the law he could go. . . In this situation, the only course open to us is to consider and decide the cause. . .
The Kentucky General Assembly has given sole authority to hire and fire teachers to the various boards of education by virtue of Chapter 161 of the Kentucky Revised Statutes. If the members of the board of education were disqualified as having prejudged the case or as having personal animosity against the particular teacher or school employee, or for any reason, then there would be no other agency to hire or terminate school personnel under the existing law. The rule of necessity requires the board members to sit even though they may all be biased and have predetermined the results of a particular hearing. It would be strange indeed if teachers, or other school personnel subject to the board of education's jurisdiction, proved to be unfit for employment could enjoy immunity from a termination of their employment simply because the only removing authority, the board, was disqualified as being biased or prejudicial against them. Kelly v. Board of Education, Ky.App., 566 S.W.2d 165 (1978) (Discretionary Review denied June 6, 1978), and Hortonville Joint School District No. 1 v. Hortonville Educational Association, 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976).
The trial court was also clearly erroneous in finding the Board erred in making its determination to dismiss appellee during a closed session of the Board in violation of KRS 61.805 and 61.810. We decided in Bell v. Board of Education of Harlan, etc., Ky. App., 557 S.W.2d 433 (1977), that the Board's dismissal of a teacher was not rendered void as a result of the fact that the Board's deliberation resulting in dismissal took place in a closed session after a public hearing, citing KRS 61.810(6).
The trial court was in error in determining the Board erred in not making findings of fact. KRS 161.790 does not require the Board to do so. Mavis v. Board of Education of the Owensboro Independent School District, Ky.App., 563 S.W.2d 738 (1977).
We do agree that the trial court was not clearly erroneous in its remaining findings and conclusions.
The notice of charges presented to appellee did not conform to the specificity required by Blackburn v. Board of Education of Breckinridge County, Ky.App., 564 S.W.2d 35 (1978), with the possible exceptions of the charges of insubordination and unsatisfactory employment. We believe the notice was specific enough on these two charges, and unlike the other charges, these two charges were sufficiently supported by the evidence in the record.
However, the real problem remains that the Board did not comply with KRS 161.790(1)(d) and KRS 161.790(2)(a). The trial court could have been clearly erroneous in all its findings and conclusions and it could have still concluded as it did merely because of the Board's failure to follow the law, a law that has been in existence practically unchanged since 1964.
KRS 161.790(1)(d) states:
(1) The contract of a teacher shall remain in force during good behavior and efficient and competent service by the teacher and shall not be terminated except for any of the following causes: . . .
(d) Inefficiency, incompetency, or neglect of duty, when a written statement identifying the problems or difficulties has been furnished the teacher or teachers involved.
*356 KRS 161.790(2)(a) requires:
Charges on the above causes shall be supported by written records of teacher performance by the superintendent, principal, or other supervisory personnel of the board.
The record before us is completely void of any "written records of teacher performance by the superintendent, principal, or other supervisory personnel of the board". Also there is no evidence of any "written statement identifying the problems or difficulties" furnished to appellee. Although the law does not require that such written records appear in the teacher's personnel file, we note that none appear in appellee's file.
Appellant argues that the notice appellee received when she was transferred to the Tompkinsville school from the Fountain Run school would suffice under this section of the statute. We disagree, mainly because over a year had passed and appellee had been rehired since then for the 1975-1976 school year, an indication that the Board was not too dissatisfied with her performance. Appellant further argues the petition signed by the parents of children at the Fountain Run school would suffice. However, this is not signed by the "superintendent, principal, or other supervisory personnel of the board".
Lastly, appellant argues that the school superintendent took notes and a tape recording of interviews he had with students to support the insubordination charge and these would suffice as "written records". Again we disagree, because there is no evidence the teacher, Virginia Craig, was ever made aware of these tapes or notes previous to the hearing on the charges against her. Obviously, one purpose of the requirements of KRS 161.790(2)(a) is to make the teacher aware of deficiencies so that she or he may correct same before being terminated.
In conclusion, a review of this rather voluminous record indicates to us that the trial court acted properly when it declared the action of the Monroe County School Board in dismissing appellee as a teacher was null and void and when it ordered her reinstated.
The judgment of the trial court is affirmed.
All concur.
NOTES
[1] We would point out here that the Kentucky Constitution, Section 115, has abolished trial de novo, therefore it is questionable whether KRS 161.790(6) granting trials de novo from school board decisions to dismiss tenured teachers is constitutional. However, we have not been asked to decide that issue, and decline to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567373/ | 579 S.W.2d 845 (1979)
Max L. JENNINGS, Appellant,
v.
LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, Division of Employment Security of Missouri, and D. W. Grace & Sons Construction, Inc., Respondents.
No. 30219.
Missouri Court of Appeals, Western District.
April 2, 1979.
*846 Stephens & Drake by Jerold L. Drake, Grant City, for appellant.
Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for Division of Employment Sec. of Missouri.
D. J. Chatfield, Jefferson City, for Labor and Industrial Relations Commission of Missouri.
Before HIGGINS, Special Judge, Presiding, and SWOFFORD, C. J., and WELBORN, Special Judge.
ANDREW JACKSON HIGGINS, Special Judge.
Appeal from judgment in affirmance of denial of unemployment benefits claimed under Section 288.050 RSMo. The question is whether the finding that the employee left his employment voluntarily without good cause attributable to his work or to his employer is supported by competent and substantial evidence upon the whole record. Reversed.
Max Jennings was employed by D. W. Grace & Sons Construction, Inc., from June 1975 to October 28, 1976. His work was in construction and repair of grain elevators and other facilities. He was required to climb and work "in the air" at least fifty per cent of the time. The height of climb varied from 50 to 110 feet. There was no safety equipment unique to the job.
On October 28, 1976, he and the Grace crew were involved in repair of an elevator at Stanberry when his friend and fellow employee, "my former man underneath me," Charles Hill, was knocked off the top of the elevator and fell 120 feet to his death. "I didn't actually see him get hit. All I seen was that he was flying through the air."
The Grace crew did not work any more that week; some of the crew returned to work the middle of the following week. A different crew was hired to finish the Stanberry job. Mr. Jennings told his employer he would not be at work for awhile, and the employer understood. Mr. Jennings "felt upset and * * * kind of responsible and nervous. * * * just didn't feel good." He had no such feelings before the accident. He and his wife discussed their problems *847 following the accident. She felt "it could have been me just as well as it could have been Charlie Hill. * * * We decided I shouldn't climb anymore."
Mr. Jennings met with his employer around November 15, 1976, and "told him that under the circumstances and everything that I didn't want to do any more climbing * * * but, I'd go ahead and go work for him on the ground." He hoped to be able to climb again, "a little later next spring, maybe. * * * He said he didn't have any work so I suppose it's the same thing as being fired or laid off. However you want to put it." The employer acknowledged Mr. Jennings to be a good employee and encouraged him to seek unemployment benefits. He made such application and also sought, unsuccessfully, new employment.
Mrs. Jennings confirmed her husband's condition after the accident of October 28, 1976. "* * * he was very upset, worked up * * * he'd wake up in dreams at nights and dream of what happened. He was very upset, nervous, and they wasn't nothing I could do or say or anything to calm him * * *."
Mr. Grace had no way to keep Mr. Jennings on the job "as a supervisor," and "there is no way that you can work on the ground all the time." He offered the same kind of work that Mr. Jennings did before the accident, but he did not return to work after the accident.
The appeals tribunal found and decided:
"The claimant worked for the employer in the construction business for about two years. He last worked on October 28, 1976, when another employee in the crew where the claimant was working making repairs on a grain elevator at Stanberry, Missouri, was killed in a fall. No further work was performed following the accident on that date and the employer's president later obtained another crew to complete the work. The employer president agreed with the claimant that he should take a few days off because of the death of his friend and fellow worker. After discussing the circumstances with his wife the claimant met with the employer president about two weeks later to inform him that the claimant and his wife had decided that the claimant would not continue working for the employer unless he be provided work that required no climbing. The employer president was unable to provide the claimant further work that required no climbing and the claimant elected to quit his job.
* * * * * *
"* * * the claimant became dissatisfied and quit his job after another employee was killed in a fall and the employer could not provide the claimant with further employment that required no climbing. The claimant's dissatisfaction with his work because it required climbing was not good cause within the meaning of the * * * provisions of the Law for quitting. There was no change in the hiring agreement. The work available to the claimant was the same work he had previously performed. By his refusal to continue his employment the claimant brought about his separation from work and it therefore was voluntary. * * * that the claimant left his work voluntarily on October 28, 1976, without good cause attributable to his work or to his employer."
Review of the foregoing decision was denied by the Industrial Commission and it became the decision of the Industrial Commission for purposes of judicial review. § 288.200(1) RSMo.
As to questions of fact, review is limited to ascertaining upon the whole record whether the Commission could have made its findings and decision, viewing the evidence in the light most favorable to the award; as to questions of law, the court is not bound by decisions of the Commission; and whether the favorable evidence establishes good cause is a question of law. Belle St. Bank v. Ind. Com'n Div. of Emp. Sec., 547 S.W.2d 841, 844 (Mo.App.1977). See also Union-May-Stern Co. v. Industrial Com'n, 273 S.W.2d 766, 768 (Mo.App.1954); LaPlante v. Industrial Com'n, 367 S.W.2d *848 24, 27 (Mo.App.1963); Citizens Bank of Shelbyville v. Industrial Com'n, 428 S.W.2d 895 (Mo.App.1968).
The statement demonstrates competent and substantial evidence upon the whole record to support the finding that the employee voluntarily quit his employment. The remainder of the question requires examination of the conditions under which he quit.
The evidence was not that the employee was "dissatisfied," which is to say he was "offended," "vexed," or "annoyed" with his job. Roget's Thesaurus of the English language in Dictionary Form, Mawsom, Rev. Ed. 1936. It shows rather that plaintiff's decision to return to work on the ground and not to work further at the heights previously involved stemmed from his nervous, upset condition, fear of heights, and fear of the fate of his friend following the death of his friend. There was thus a causal connection between the work and the employee's reason for avoiding the climbing involved; and the reason was one "which reasonably would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment." Belle St. Bank v. Ind. Com'n, supra, 547 S.W.2d l. c. 846.
The case is similar to Bussman Mfg. Co. v. Industrial Com'n of Missouri, 327 S.W.2d 487 (Mo.App.1959), where claimant took leave of absence from employer's factory for one month because of sickness and, when she returned, the only job offered her was her same work on a solder cutting machine which she refused because it made her nervous and she was to avoid work which made her nervous. The court held she quit work with good cause attributable to her employment within the meaning of the statute. Similarly, in Wilson v. Labor & Indus. Rel. Com'n, 573 S.W.2d 118 (Mo. App.1978), the record was insufficient to support finding that claimant left his employment without good cause attributable to his employment where claimant, primarily employed as a truck driver, also performed other work which required him to lean over and into a box resulting in injury to his back. He refused to resume the secondary work the following day because of the injury and injury-producing condition.
The legal deficiency in the Commission's decision is the failure to consider the whole record. "[A]n administrative agency may not arbitrarily disregard or ignore the testimony of a witness not shown to have been disbelieved or impeached by the agency. * * * Only if the agency makes a specific finding that the undisputed or unimpeached evidence is not entitled to credibility and is unworthy of belief may it be said that the evidence may be disregarded." Wilson v. Labor & Indus. Rel. Com'n, supra, 573 S.W.2d l. c. 121. Both Mr. and Mrs. Jennings testified that Mr. Jennings was upset, nervous, and afraid following the accident, and that he would not resume his work if it involved climbing. Such testimony was not found incredible or unworthy of belief. It stands unimpeached and uncontradicted, and the employee's problem was understood by the employer. Accordingly, the finding that the employee left without good cause is without evidentiary support by competent and substantial evidence on the whole record because of this failure of a factual or testimonial basis to refute the employee's assertion that he did not return to work because of his nerves, fears, and upset condition.
Judgment reversed and cause remanded with direction to remand the case to the Division of Employment Security for determination of benefits which may be due the employee.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919818/ | 91 B.R. 31 (1988)
In re Ralph L. WHARRY and Virginia M. Wharry, Debtors.
Bankruptcy No. 87-01160.
United States Bankruptcy Court, N.D. Ohio, W.D.
August 31, 1988.
*32 Glenn H. Troth, Paulding, Ohio, for debtors.
Laurie J. Pangle, Toledo, Ohio, for Toledo Trust.
Suzanne C. Mandross, Toledo, Ohio, Trustee.
Stephen E. Hubbard, Defiance, Ohio, for Defiance Landmark State Bank and Trust Bldg.
OPINION AND ORDER DISALLOWING PROOF OF CLAIM
WALTER J. KRASNIEWSKI, Bankruptcy Judge.
This matter is before the court upon objections of Debtors, Defiance Landmark, Inc. and the trustee to the proofs of claim filed by the Toledo Trust Company. Upon consideration thereof, the court finds that said objections are well taken and should be sustained and that Toledo Trust may not share as an unsecured creditor under Debtors' chapter 12 plan.
FACTS
On May 26, 1987, Debtors filed their voluntary petition under chapter 12 of title 11. Debtors listed the Toledo Trust Corp., now Trustcorp., Bank, Ohio (hereinafter Toledo Trust) as a creditor having security. Debtors' Petition, Schedule A-2 (May 26, 1987). On June 4, 1987, an order was entered scheduling the meeting of creditors, pursuant to 11 U.S.C. § 341, for July 2, 1987. Order for Meeting of Creditors (June 4, 1987); Stipulation of Facts (May 5, 1988). That meeting was held as scheduled. Chapter 12 Minute Sheet (July 2, 1987). Counsel on behalf of Toledo Trust appeared at that hearing. Id.
Debtors, on August 21, 1987, filed their chapter 12 plan of reorganization. Toledo Trust filed its proofs of claim on October 2, 1987, listing claims in the amounts of $35,955.07, secured by real estate, accounts receivable, equipment and fixtures; $170,313.54, secured by real estate and accounts receivable; $304,449.85, secured by real estate and accounts receivable; and $82,863.13, secured by accounts receivable, equipment, fixtures and vehicles. See Stipulation of Fact (May 5, 1988). Debtors' chapter 12 plan was subsequently confirmed on November 23, 1987. Order Confirming Plan (November 23, 1987).
On February 5, 1988, Debtors objected to the claims of Toledo Trust as a result of the untimely filings. Objection to Allowance of Claim (February 5, 1988). Debtors amended their objection, on February 10, 1988, requesting disallowance of Toledo Trust's unsecured claim in the amount of $245,116.59. Amended Objection to Allowance of Claim at 1 (February 10, 1988). Defiance Landmark, Inc., an unsecured creditor, also objected to Toledo Trust's claim as a result of untimeliness. Objection to Allowance of Claim (February 9, 1988). The parties, in accordance with a pretrial order of April 20, 1988, filed briefs in support of their positions. The trustee has also filed a brief supporting her objection to Toledo Trust's claims.
DISCUSSION
In enacting chapter 12, Congress intended that chapter 12 be closely modeled after the existing chapter 13. See 5 Collier on Bankruptcy ¶ 1201.01 at 1201-2 (15th ed. 1988) (footnote omitted). The filing of a proof of claim, in the instant situation, is governed by Bankruptcy Rule 3002 which provides that:
(a) Necessity for Filing. An unsecured creditor or an equity security holder must file a proof of claim or interest in accordance with this rule for the claim or interest to be allowed, except as provided *33 in Rules 1019(4), 3003, 3004 and 3005.
* * * * * *
(c) Time for Filing. In a . . . chapter 13 individual's debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code, except. . . .
Interim Bankruptcy Rule 12-2-(12), recommended for adoption as a local rule by the Advisory Committee on Bankruptcy Rules, provides
[t]he reference in Rule 3002(c) to a chapter 13 individual's debt adjustment case shall be read also as a reference to a chapter 12 family farmer's debt adjustment case.
These chapter 12 rules have been adopted as local interim rules for this district. General Order No. 10 (April 9, 1987). Thus, Toledo Trust must file a proof of claim in accordance with Rule 3002(c) as the necessity therefor is not excepted by Rules 1019(4), governing claims in a superseded case; 3003, governing claims in chapter 9 or 11 cases; 3004, governing claims filed by Debtor or trustee; or 3005, governing claims filed by other entities.
Toledo Trust does not deny notice of Debtors' petition. In fact, Toledo Trust was represented at the § 341 meeting of creditors scheduled for and held on July 2, 1987. See Order for Meeting of Creditors, supra. Toledo Trust should have filed its proofs of claim on or before 90 days from that date, September 30, 1987. See Bankruptcy Rule 9006(a) (in computing time prescribed by these Rules, the day of the act from which the period of time begins to run shall not be included, July 2, 1987; the last day of the period shall be included, September 30, 1987). Toledo Trust's proofs of claim representing its unsecured claim, filed October 2, 1987, should be disallowed.
Toledo Trust contends that the court should utilize its equitable powers and allow its claim. Brief of Creditor Trustcorp. Bank, Ohio on Amended Objection to Allowance of Claim at 7 (July 5, 1988). Bankruptcy Rule 9006(b)(3) states that:
[t]he court may enlarge the time for taking action under Rules . . . 3002(c) . . . only to the extent and under the conditions stated in those rules.
Thus, the court may extend the 90 day period provided in Rule 3002(c) only in accordance with the exceptions provided thereunder. See In Re Chirillo, 84 B.R. 120 (Bkrtcy.N.D.Ill.1988). The six exceptions delineated in subsections (1) through (6) of Bankruptcy Rule 3002(c) are inapplicable to the instant situation. Toledo Trust's late filed claim should not, then, be allowed.
Additionally, Toledo Trust did not object to Debtors' plan and it was confirmed on November 23, 1987. 11 U.S.C. § 1227(a) states that:
the provisions of a confirmed plan bind . . . each creditor . . . whether or not the claim of such creditor . . . is provided for by the plan, and whether or not such creditor . . . has objected to, has accepted, or has rejected the plan.
See also 5 Collier on Bankruptcy ¶ 1227.01 at 1227-1 (15th ed. 1988) (order of confirmation is res judicata and its terms are not subject to collateral attack). In In Re Evans, 30 B.R. 530, 10 B.C.D. 1071, 9 C.B.C.2d 123 (9th Cir.B.A.P.1983), the court, in discussing the effects of a confirmed chapter 13 plan, stated that:
[a]n order confirming a chapter 13 plan is res judicata as to all justifiable issues which were or could have been decided at the confirmation hearing. Section 1327 precludes a creditor from asserting, after confirmation, any other interest other than that provided for it in the confirmed plan.
Id. at 531 (citation omitted). The language of § 1227(a), supra, mirrors that of § 1327 to which the Evans court referred. Toledo Trust's claim should, then, be disallowed.
Toledo Trust also contends that because Debtors listed Toledo Trust on their petition and because Toledo Trust has participated in proceedings herein, that an informal proof of claim was established and that *34 the October 2, 1987 claims verified the nature and amount of its claim. Brief of Creditor, Trustcorp. Bank, Ohio, on Amended Objection to Allowance of Claim at 4-5 (July 5, 1988). The court is not persuaded by this argument in light of the precise, unambiguous language contained in the Rules.
Toledo Trust also states that the Bankruptcy Court Clerk's Office may not have file stamped its claims on the date received by that office. Id. at 3. Toledo Trust analogizes that because the Stipulation of Fact filed on May 5, 1988 has a handwritten notation "received May 4, 1988 B.H.", the proofs of claim may also have been received prior to the October 2, 1988 file stamped date. Id.
At the outset, the court notes that Toledo Trust has not provided any documentation that the claims were "received" earlier than October 2, 1988. Toledo Trust provides no indication that its claims were received or filed two days earlier on September 30, 1987, the bar date. Foremost, the court finds that Toledo Trust may not raise this issue. The parties, at a pretrial conference held on this matter, agreed to submit a stipulation of facts. Pretrial Order (April 20, 1988). Said stipulation was filed wherein Toledo Trust stipulated that:
1. The first date set for a meeting of creditors pursuant to 11 U.S.C. Sec. 341(a) was July 2, 1987.
2. A proof of claim was filed herein by Trustcorp. Bank, Ohio, fka The Toledo Trust Company, on October 2, 1987.
Stipulation of Fact (May 5, 1988). These are the only salient facts necessary for disposition of the issues herein. Toledo Trust, by its own admission, filed its proofs of claim two days late. Furthermore, the purpose of the Stipulation of Facts between the parties was to obviate an evidentiary hearing. Because the necessary facts are undisputed, an evidentiary hearing is not necessary and the court finds that Toledo Trust is bound by its stipulation and may not collaterally attack these stipulated facts. Toledo Trust's claims are untimely, prohibited by the 90 day absolute bar date. It may not share as an unsecured creditor.
The Honorable Richard L. Speer, recently stated, in finding that Toledo Trust failed to file timely proofs of claim in two chapter 13 cases, that the time set forth in Rule 3002 is an absolute bar to claims filed after the expiration of the 90 days. In Re Wilt, 84 B.R. 480 (Bkrtcy.N.D.Ohio 1988); In Re Napier, 84 B.R. 482 (Bkrtcy.N.D. Ohio 1988) (citing In Re Street, 55 B.R. 763 (9th Cir.B.A.P.1985)). See also In Re Chirillo, 84 B.R. at 122 and n. 2 (cases construing Rule 3002(c) treat the 90 day period as a statute of limitations not subject to extension by the bankruptcy court). Toledo Trust is, obviously, cognizant of this Rule and its ramifications. The court may not permit Toledo Trust to share as an unsecured creditor as it would be prejudicial and inequitable.
Finally, in Chirillo, supra, a creditor who did not receive notice of Debtor's chapter 13 petition, failed to file a timely proof of claim. The court denied the creditor's motion to file a late proof of claim indicating that the Bankruptcy Court is without equitable power to extend the 90 day deadline. Id. at 122 (citations omitted). Toledo Trust may not share as an unsecured creditor as a result of its late filed claim.
A last issue raised by Toledo Trust concerns the standing of the objecting parties to allowance of its claims. Section 502 permits a party in interest to object to a proof of claim. 11 U.S.C. § 502(a). The trustee is a party in interest who may object to a claim. See In Re Dominelli, 820 F.2d 313 (9th Cir.1987). The trustee, in the instant case, properly filed her brief in support of her objection to Toledo Trust's claims. Obviously, Debtors are parties in interest entitled to object to allowance of Toledo Trust's claims. Defiance Landmark, Inc., as an unsecured creditor under Debtors' plan, will receive a smaller dividend if Toledo Trust's claims are allowed. Said objections are sustained. In light of the foregoing, it is therefore
*35 ORDERED that Toledo Trust Company may not share as an unsecured creditor under Debtors' chapter 12 plan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919852/ | 91 B.R. 604 (1988)
UNITED STATES of America, Plaintiff,
v.
Louis SINGLETON, Defendant.
Adv. No. 87-9093.
United States Bankruptcy Court, N.D. Florida, Gainesville Division.
September 29, 1988.
*605 Ross Nabatoff, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff.
Lisa Cohen, Lansing J. Roy, P.A., Keystone Heights, Fla., for defendant.
J. Michael Davis, Gainesville, Fla., trustee.
MEMORANDUM OPINION
LEWIS M. KILLIAN, Jr., Bankruptcy Judge.
This case is before the Court on Defendant's Motion for Summary Judgment filed June 15, 1988. Plaintiff, the United States of America (Farmers Home Administration), seeks exception from discharge for its claim under 11 U.S.C. § 523(a)(2)(A). Plaintiff responded to the summary judgment request, and both parties have submitted documents and materials in support of their respective positions. A hearing on the motion was noticed on July 15, 1988, and conducted by the Court on August 10, 1988. The Court has jurisdiction pursuant to 28 U.S.C. § 157. This is a core proceeding under Title 11. For the following reasons, Defendant's motion for summary judgment is granted.
Debtor, Louis Singleton[1], was a poor black man, in his late sixties, who never completed the sixth grade. He filed his Petition for Relief under Chapter 12 on April 16, 1987, and listed Farmers Home Administration (FmHA) as a secured creditor. On July 2, 1987, FmHA filed a complaint for determination of dischargeability of its debt, alleging mutual mistake by the parties in describing the wrong property in a note and mortgage given to FmHA by the Debtor. When the Debtor's motion for more definite statement was granted, FmHA amended its complaint on February 4, 1988, dropping the allegations of mutual mistake and alleging fraud and intentional misrepresentation by the Debtor.[2] FmHA further alleged it relied upon Debtor's false representations of the property description in preparing the mortgage documents. This incorrect property description was not discovered until counsel for the Debtor prepared the petition to file bankruptcy, approximately ten years after the note and mortgage were signed.
The Debtor borrowed approximately $25,000 from FmHA to build a home in 1977. The Debtor met with Solomon Sanders, the FmHA representative, to qualify for the loan. As security for the loan, the Debtor executed a note and mortgage in favor of FmHA. This note and mortgage described ten acres of land adjacent to the one acre on which the home was actually built. The loan documents were prepared for FmHA by an attorney, Covington Johnston[3], on forms supplied by FmHA. No *606 loan documents were prepared by the Debtor. In addition, the Debtor was not represented by counsel. Covington Johnston, a local attorney, was selected by FmHA to prepare the necessary closing documents and the note and mortgage. The Debtor signed a Request for Title Opinion and Title Services agreeing to be responsible for payment of Mr. Johnston's fees as part of the closing costs. This form letter was prepared at FmHA's request. Mr. Johnston was, at best, a neutral attorney engaged to handle the paperwork associated with the closing of the loan.
During the year before the Debtor borrowed the funds from FmHA, he received approximately ten acres of property by summary administration of his father's estate. This ten acres was surveyed for the probate proceedings and the survey was recorded in the Public Records of Alachua County. One acre of land adjacent to the larger parcel was specifically excepted out of the survey because it already belonged to the Debtor and was not part of the probate proceedings. The one acre parcel is where the Debtor's home was built. The note and mortgage should have described this one acre lot, but instead described the ten acre parcel excluding the one acre.
FmHA alleges that the Debtor purposely provided the wrong property description with the intent to deprive Farmers Home of a lien on his home. In support of its allegation, FmHA submits the affidavit[4] of Solomon Sanders, the County Supervisor of Alachua County responsible for administering FmHA loans during 1977. Mr. Sanders approved the Singleton loan on behalf of FmHA. Mr. Sanders' affidavit states no more than what the "usual procedures" of FmHA were in 1977:
In accordance with the usual procedures of FmHA I received the legal description of the land where the house was to be located and upon which our mortgage was to attach from the borrower Mr. Louis Singleton.
Affidavit of Solomon Sanders at paragraph III.
Accepting the above as true, the affidavit does not indicate what property was described, whether the Debtor knew what property was described, whether the description given was used, whether more than one description was given, or whether the description given was forwarded to the attorney preparing the closing documents. The affidavit shows nothing about the Debtor's intent to deceive FmHA. Without more, the Court would be required to grant a directed verdict at the close of Plaintiff's case if a trial was held. Apparently FmHA has no more probative evidence. They have not submitted any evidence to show the Debtor provided the property description to FmHA or anyone associated with loan closing.
Summary judgment motions are governed by Bankruptcy Rule 7056, which adopts Federal Rule 56 in its entirety. Rule 56(c), Fed.R.Civ.Proc., provides, in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Recently the Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), explained the emphasis of Rule 56:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
*607 Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211 (emphasis in original).
Following the Anderson case, the Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) held:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "(T)h(e) standard (for granting summary judgment) mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). . . ." Anderson v. Liberty Lobby, Inc., ante, at 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Celotex Corp. v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53, 91 L.Ed.2d at 273-74.
The party opposing summary judgment has the burden to come forward and demonstrate sufficient factual disputes to justify the need for trial.
The Supreme Court noted substantive law identifies which facts are material. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211. In addition, the dispute about a material fact must be genuine. The opponent of a summary judgment motion must specifically identify issues to be resolved at trial. The court must determine whether there is the need for a trial "whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 213. Both parties must submit sufficient evidence for this determination. Summary judgment may be granted if the non-moving party's evidence is not significantly probative. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).
Because exceptions to discharge substantially frustrate the fresh start objective of the Bankruptcy Code and the rehabilitative goal of discharge provisions, they are to be strictly construed against an objecting creditor and in favor of debtors. Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915). Accordingly, FmHA has the burden to prove by clear and convincing evidence each element set forth in Section 523(a)(2)(A). In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986). In Hunter, the Eleventh Circuit Court of Appeals set forth the elements a creditor must establish under § 523(a)(2)(A):
In order to preclude the discharge of a particular debt because of a debtor's false representation, a creditor must prove that: the debtor made a false representation with the purpose and intention of deceiving the creditor; the creditor relied on such representation; his reliance was reasonably founded; and the creditor sustained a loss as a result of the representation. The debtor must be guilty of positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality.
Hunter, supra, at 1579 (citations and footnote omitted).
Intent to deceive may be inferred when a debtor knew or should have known the falsity of a statement made. In re Valley, 21 B.R. 674 (Bkrtcy.D.Mass.1982). FmHA has failed to produce clear and convincing *608 evidence that Defendant knew the property description contained in the note and mortgage were incorrect. In deposition, the Debtor stated he did not know FmHA did not have a lien on his home until his attorney was preparing the petition for bankruptcy. There is no sufficiently probative evidence to show the Debtor knew the property description in the note and mortgage were incorrect. The Court cannot infer intent in the face of Debtor's unrefuted testimony and the lack of credible evidence presented by FmHA.
Plaintiff argues summary judgment is generally inappropriate in cases involving issues of intent, as in fraud. Matter of Baitcher, 781 F.2d 1529 (11th Cir.1986). However, the policy underlying Rule 56, Federal Rules of Civil Procedure, mandates that "the moving party has the right to judgment without the expense of a trial where there are no issues of fact left for the trier of fact to determine." Ackerman v. Diamond Shamrock, 670 F.2d 66, 69 (6th Cir.1982). Where there is no probative evidence of intent, there is no issue of fact remaining for trial, ". . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553, 91 L.Ed.2d at 273. It is apparent the incorrect property description resulted from the failure of FmHA to adequately insure the proper description was contained in the note and mortgage not from fraud by the Debtor. Based on the Debtor's deposition, his education and background, it is doubtful the Debtor could even read and understand the property description contained in the various documents he executed in favor of FmHA.
Accordingly, the Debtor is entitled to summary judgment as a matter of law.
Counsel for the Debtor also filed a motion for Rule 9011 sanctions on June 15, 1988. The parties were noticed of the August 10, 1988, hearing by the Clerk's office on July 15, 1988. FmHA filed a response to the Debtor's motion on June 24, 1988.
Bankruptcy Rule 9011, adopts Rule 11, Federal Rules of Civil Procedure, with only minor changes to make the text of the rule appropriate to bankruptcy cases. Rule 9011(a) provides in part:
The signature of an attorney of a party constitutes a certification that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation.
The language of Rule 9011 imposes an affirmative duty on an attorney to conduct a pre-filing inquiry into the facts and the law. Advisory Committee Note to Rule 11. The Eleventh Circuit, in Donaldson v. Clark, 819 F.2d 1551 (11th Cir.1987), describes amended Rule 11 as incorporating an objective standard of conduct, more stringent than the original good faith formula. Donaldson, at 1556, citing Advisory Committee Notes to Rule 11. The objective standard requires the court to "test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted." Id.
Rule 11 itself allows courts the discretion to fashion sanctions to fit the appropriate cases:
If a document is signed in violation of this rule, the court on motion or upon its own initiative, shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney's fee.
Bankruptcy Rule 9011.
It appears that Rule 11 was violated by counsel for FmHA. The complaint, as originally filed, alleged mutual mistake by *609 the parties and asked the Court to establish a lien on Debtor's home. When it became apparent to FmHA that the relief sought reformation of the note and mortgage to grant FmHA a lien on debtor's home was not legally available[5], FmHA amended the complaint to have their debt excepted from discharge on the basis of fraud and false representation. It is apparent the change in theory resulted from the realization that the requested relief could not be granted, and not the result of further inquiry into the facts. At hearing on August 10, 1988, counsel for FmHA did not disclose any new information to support the factually inconsistent allegations of fraud and false representation. It is improper for an attorney to allege a position in a complaint or other filing which is not fairly supportable by the known pre-filing facts. The Court believes this proceeding was filed by FmHA for an improper purpose and that sanctions against the United States through its agencies FmHA and the United States Attorney for the Northern District of Florida, are warranted under the circumstances. Upon review of the Certificate of Professional Services Rendered submitted by counsel for the Debtor on June 15, 1988, and further review of the pleadings filed subsequent thereto, we find an award of $2500 as attorney's fees and costs to be the appropriate sanctions to be imposed.
A separate judgment will be entered in accordance with the Court's findings.
NOTES
[1] Louis Singleton died during the pendency of the bankruptcy proceeding. Carl Singleton and the Estate of Louis Singleton have been substituted as parties in interest by order of August 23, 1988.
[2] These two factual theories are contradictory. The amendment appears to be an attempt to allege facts sufficient to defeat discharge of the underlying debt, since there is no indication that additional facts have materialized since the complaint was initially filed. There was no additional formal discovery prior to the amended complaint, and FmHA articulated nothing new at hearing.
[3] FmHA did not submit the affidavit of Mr. Johnston to show how he received the incorrect property description contained in the documents he prepared.
[4] The affidavit of Solomon Sanders, based on "knowledge and belief" is legally insufficient under Rule 56. This alone would merit granting summary judgment. Rule 56(e) requires that 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." Even if the affidavit was based on personal knowledge, standing alone it is insufficient to defeat summary judgment.
[5] Prefiling legal research as required by Rule 11 would have disclosed that "mutual mistake" was an inadequate basis for relief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919855/ | 91 B.R. 166 (1988)
In re NORTH REDINGTON BEACH ASSOCIATES, LTD., a Florida Limited Partnership, Debtor.
Bankruptcy No. 88-4188-8P1.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
September 19, 1988.
Langfred White, Clearwater, Fla., for debtor.
*167 Thomas D. DeCarlo, West Palm Beach, Fla., for movant.
Lynne L. England, Tampa, Fla., Asst. U.S. Trustee.
ORDER ON MOTION TO DISMISS
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 11 case filed on July 25, 1988. The matter under consideration is a Motion to Dismiss the Chapter 11 case based on the alleged bad faith of North Redington Beach Associates, Ltd. (Debtor). The Motion is filed pursuant to § 1112(b) of the Bankruptcy Code which authorizes a dismissal for "cause" and cause now has been construed to include the bad faith of the Debtor to seek relief under this Chapter. See In re Victory Construction Company, 9 B.R. 549 (Bkrtcy.C.D.Cal.1981).
The Motion is filed by City Federal Savings Bank (City Federal), a secured creditor of the Debtor and is based on the following facts which are without dispute:
The Debtor, a limited partnership, is the owner and operator of a hotel facility under a Hilton franchise located at North Redington Beach, Florida. The hotel, which is newly constructed, has been in operation only a year, is encumberred by a first mortgage in favor of City Federal securing an indebtedness in the approximate amount of $9.9 million; a second mortgage in favor of Glen Johnson, Inc. (Glen Johnson) securing an indebtedness of $317,000; and a third mortgage in favor of G.B.R. Investment Group, Inc. securing an indebtedness of $200,000, for a total secured indebtedness of $10.2 million. It is conceded by the Debtor that the value of the property is not more than $8.3 million, thus substantially less than the total secured indebtedness. Under the first mortgage, the Debtor is required to make a monthly payment of $85,000. It is without dispute that this mortgage has been in default for seven months prior to the commencement of this Chapter 11 and no payment has been made since the Chapter 11 was filed and still is in default. It appears that the holder of the second mortgage, Glen Johnson, filed a foreclosure action in the Circuit Court in and for Pinellas County and obtained a Summary Final Judgment on June 24, 1988. The property was scheduled to be sold at foreclosure sale on July 25, 1988 but the sale was not held because the Debtor filed its Petition for Relief in this Court ten minutes prior to the commencement of the foreclosure sale.
It further appears that City Federal also instituted a foreclosure action in the Circuit Court for Pinellas County. On April 15, 1988, the Circuit Court entered a default against the Debtor for its failure to file any responsive pleadings as required by law and on May 20, 1988, appointed a receiver for the facility who was in charge of the hotel operation until August 5, 1988 at which time the receiver apparently voluntarily surrendered the control and possession of the premises to the Debtor. As indicated earlier, the Debtor is a limited partnership and it appears that there is currently pending a suit by the general partner, North Redington Beach Associates, Ltd. against the limited partners. This suit involves a claim for a dissolution of the partnership and a counterclaim by the limited partners who allege fraud and violation of the Blue Sky Laws of the State of Florida.
It is without dispute that all three secured creditors are undersecured; that the property is incapable of generating enough income to support the three mortgages and, according to its own projection, with the exception of the month of March, 1989, will not be able to produce enough money to meet the monthly obligations on the first mortgage in the amount of $85,500. The projection indicates at least a $40,000 shortfall in the oncoming year.
Based on these undisputed facts, it is the contention of City Federal that there is "cause" to dismiss this Chapter 11 case under the applicable legal principles citing In re Krilich, 87 B.R. 178 (Bkrtcy.M.D.Fla. 1988); In the Matter of Little Creek Development Co., 779 F.2d 1068 (5th Cir.1986); In re Landmark Capital Company, 27 B.R. 273 (Bkrtcy.Ariz.1983). City Federal points out that this is a single asset case; it *168 is unable to support its secured debt structure; and it sought relief in this Court ten minutes before the property was to be lost through foreclosure sale. See In re Albany Partners, Ltd., 749 F.2d 670 (11th Cir. 1984). In addition, City Federal points out that this Debtor only has one problem which is its inability to deal with the mortgage indebtedness.
In opposing the Motion of City Federal, it is the contention of the Debtor that its financial woes are attributable basically to two factors: one, the destruction of its beach by Hurricane Elena; and two, the failure of the limited partners to make their capital contributions to the partnership, an issue which is now involved in state court litigation. Concerning the first, it is the contention of the Debtor that since the beach has been rebuilt the business actually exceeded its projections and second, if it prevails against the limited partners it will have sufficient capital to meet any shortfalls. Moreover, the Debtor contends that, unlike Little Creek Development which involved an undeveloped real property of an entity which had no employees, no income, no cash flow, and no available source of income to sustain a plan of reorganization, this is an ongoing hotel operation with more than eighty employees; it is a brand new facility operating under a Hilton franchise; and while it is true that its current debt structure is top heavy and cannot be supported by the income generated from the operation, it could possibly be reorganized and restructured under the applicable provisions of 1129(b) of the Bankruptcy Code if given the chance.
Prior to the enactment of the Bankruptcy Reform Act of 1978, Pub.L. 95-958, the Bankruptcy Act of 1898 contained Chapter XII entitled "Real Property Arrangement". This chapter was specifically designed to deal with financially distressed debtors, generally with one single asset. Under the statutory scheme, these debtors were able to propose an arrangement which had for its primary purpose the alteration or modification of the rights of creditors or of any class of them, holding debts secured by real property or a chattel real of which the debtor was the legal or equitable owner. § 406(1) of Chapter XII, Bankruptcy Act of 1898. In re Helmwood Apartments, 2 BCD 1151 (Bkrtcy.N.D.Ga.1976); In re Perimeter Park Investment Associates, Ltd., 697 F.2d 945 (11th Cir.1983); In re Marietta Cobb Apartments Co., 3 BCD 720 (Bkrtcy.S.D.N.Y.1977); In re Samoset Associates, 10 CBC 515 (Bkrtcy.Me.1976); In re Pinegate Associates, Ltd., 2 BCD 1478 (Bkrtcy.N.D.Ga.1976); In re Colonial Realty Investment Co., 516 F.2d 154 (1st Cir.1975).
The Bankruptcy Reform Act of 1978, Pub.L. 95-598, by enacting Chapter 11, fused the previous relief chapters, Chapter X, Chapter XI and Chapter XII into one single relief chapter. Thus, prior to 1979, a debtor with a single asset consisting of real estate who had financial difficulties and were not able to meet mortgage payment obligations had a remedy prior to the enactment of the Code if the fact that the debtor at this time has one single asset consisting of encumbered real property would compel a finding that the petition for relief under Chapter 11 was filed in bad faith and, therefore, requires a dismissal would be without remedy, especially if the debtor is a corporation. Based on the foregoing, it is evident that the Debtor with one single real estate holding like the Debtor involved in this particular case should not be precluded to avail itself to the rehabilitative provisions of Chapter 11 unless other factors discussed by the cases dealing with the question of bad faith are present. In re Victory Construction Company, supra; In the Matter of Little Creek Development Co., supra; In re Landmark Capital Company, supra; In re Krilich, supra. This Court is not unaware of the recent decision of the Eleventh Circuit in In re Phoenix Piccadilly, Ltd., 849 F.2d 1393 (11th Cir.1988) in which case the Court of Appeals affirmed the District Court which in turn affirmed the bankruptcy court's dismissal of the Chapter 11 case based on bad faith. Judge Roney, speaking for the panel, noted that there was ample evidence in the record to support the finding of bad faith. Most importantly, however, is the statement by *169 the court that even if a debtor may have equity in the single asset dismissal is proper if the sole purpose for filing the Chapter 11 case was to frustrate secured creditors' attempts to foreclose on debtor's sole asset. Citing In re Albany Partners, Ltd., 749 F.2d 670, 674 (11th Cir.1984). See also, In re Waldron, 785 F.2d 936 (11th Cir.), (Chapter 13 petition dismissed because of bad faith filing), cert. dismissed, 478 U.S. 1028, 106 S.Ct. 3343, 92 L.Ed.2d 763 (1986). At first blush it appears that the holding in Phoenix Piccadilly compels a dismissal of this case since it is without dispute that filing a Chapter 11 petition ten minutes prior to the foreclosure sale it was filed obviously to forestall the holder of the second mortgage, Glen Johnson, to complete its foreclosure action. In addition, in this case, unlike in Phoenix Piccadilly where the debtor had equity, this Debtor admits that it has no equity in its one and only asset. However, the Court of Appeals in Phoenix Piccadilly heavily relied on Little Creek Development Co., supra; In re Heritage Wood'N Lakes Estates, Inc., 73 B.R. 511, 514 (Bankr.M.D.Fla.1987); and In re Natural Land Corp., 825 F.2d 296, 298 (11th Cir.1987), all of which involved a debtor with one single asset consisting of undeveloped raw land; a debtor who was not engaged in any ongoing business; had no employees; no income and filed for protection under Chapter 11 for the admitted purpose to forestall the loss of the property through foreclosure to gain time hoping for the improvement of the real estate market which eventually could possibly enable the Debtor to salvage equity for the ownership interest which expected to grow through the passage of time. As noted earlier, this Debtor is operating a substantial hotel facility under a world wide well recognized franchise with more than sixty employees. It has been in operation only one year and it has substantial unsecured debts. While it is true that the Debtor lacks equity in the subject property, it does not claim that its salvation lies merely in a delay based on the hope that there will be a upturn in the real estate market but in an improvement of its facility with a rebuilt beach and the possible infusion of capital either by the limited partners, which may be achieved through litigation, or by others. Be as it may, this Court is satisfied that when one considers the good faith or lack of same of a debtor who seeks relief under the current Chapter 11, the real test that still remains is the presence of honest intention of the Debtor and some real need and real ability to effectuate the aim of the reorganization even if this involves the total liquidation of the assets. In re Julius Roehrs Co., 115 F.2d 723 (3rd Cir.1940); see also, Breeding Motor Freight Lines, Inc. v. Reconstruction Finance Corp., 172 F.2d 416 (10th Cir.1949), cert. den. 338 U.S. 814, 70 S.Ct. 54, 94 L.Ed.2d 493 (1949). This doesn't mean, however, that the Debtor shall be given an extended use of the protection of the automatic stay or the right to use the provisions of Chapter 11. In the case of In re Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363 (5th Cir.1987), Judge Randall, speaking for the majority, noted that undersecured creditors are not without protection and § 1112(b)(1) warrants a dismissal for continuing loss and absence of a reasonable likelihood of rehabilitation; or inability to effectuate a plan; or unreasonable delay by the debtor that it prejudicial to creditors; or failure to propose a plan under section 1121 within any time fixed by the Court. As suggested by Judge Randall that under this Section the bankruptcy judge is required to evaluate each debtor's viability and the rate or progress in light of the best interest of creditors and the estate and carefully consider any request to extend the exclusive period of 120 days granted to a debtor to file a plan of reorganization. Moreover, the 120 day period may be reduced or increased by cause. Both of these provisions could be used as a tool to assure that the imbalance between the debtor and secured creditors which characterized the cases under the old Chapter XI is not reinstituted and § 1121 was designed by Congress to limit the delays that made creditors hostages of Chapter 11 debtors.
Based on the foregoing, this Court is satisfied that in light of the fact that this Chapter 11 was filed on July 25, 1988, that the 120 day exclusive period to file a plan of reorganization will not expire until November *170 25, 1988, the fact that this Debtor is currently operating, the Motion to Dismiss for bad faith filing is not well taken and the Debtor should at least be given an opportunity to propose a plan of reorganization within the exclusive period and attempt to obtain confirmation of its plan if it is able to do so.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss by City Federal Savings Bank be, and the same is hereby, denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919862/ | 91 B.R. 907 (1988)
In re McCOMBS PROPERTIES VIII, LTD., a California limited partnership, Debtor.
Bankruptcy No. SA 87-01381 JR.
United States Bankruptcy Court, C.D. California.
August 11, 1988.
*908 Jeffrey W. Broker of Lobel, Winthrop & Broker, Irvine, Cal., for debtor.
John T. Ruff, Neely & Player, Atlanta, Ga., for Southern Woods.
R. Hillary Willett of Buchalter, Nemer, Fields & Younger, Newport Beach, Cal., for Great American.
Susan W. Kramer, Parker, Johnson, Cook & Dunlevie, Atlanta, Ga., for Southern Federal.
Bennett L. Spiegel, Levene and Eisenberg, Los Angeles, Cal., for Woodland Center.
Mark Kompa, Hart, King and Coldren, Santa Ana, Cal., for Brown Investments.
Keith Meyer, official limited partners' committee, Garber, Marshack, Fell & Meyer, Sant Ana, Cal.
MEMORANDUM OPINION
JOHN E. RYAN, Bankruptcy Judge.
A preliminary issue requiring resolution at the hearing on confirmation involved the determination of the market rate of interest that debtor is required to pay on the "forced" loans in debtor's plan of arrangement in order to satisfy the requirements of § 1129(b)(2)(A)(i)(II) of the Bankruptcy Code. After hearing the evidence, I took the matter under submission advising debtor that the interest rates required to provide a present value equal to the allowed secured claim of each of the objecting secured creditors would be in excess of the 10.5% accrual interest rate provided in debtor's plan of arrangement (the "Plan") and that I would issue this memorandum opinion no earlier than 14 days after the hearing to give debtor some additional time to negotiate the issue with these creditors.
JURISDICTION
This court has jurisdiction over this case pursuant to 28 U.S.C. § 1334(a) (the district courts shall have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (authorizing the district courts to refer all Title 11 cases and proceedings to the bankruptcy judges for the district) and General Order No. 266, dated October 9, 1984 (referring all Title 11 cases and proceedings to the bankruptcy judges for the Central District of California). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L).
STATEMENT OF FACTS
Debtor is a California limited partnership formed on May 16, 1983 for the purpose of owning and operating a diversified portfolio of income producing real properties. The limited partners invested an aggregate of $24,285,500 in debtor. The funds were used to purchase the following seven projects: (1) Southern Woods Apartments; consisting of 140 units located in Tucker, Georgia. (2) Palmer House Apartments; consisting of 144 units located in Greensboro, North Carolina. (3) Packers Square Shopping Center; consisting of five buildings located in Tustin, California. (4) Woodland Village Retail/Office Center; located in Woodland Hills, California. (5) Cedar Woods Business Park; consisting of five buildings located in Fullerton, California. (6) River Ridges Apartments; located in Arlington, Texas and eventually lost to foreclosure. (7) Barcelona Apartments; located in Tulsa, Oklahoma. This property was later sold.
At the confirmation hearing, five creditors objected to their treatment under the Plan. As to all creditors, debtor proposes to cram down under § 1129(b)(2)(A)(i)(II) of the Code and force these creditors to accept an accrual market rate of interest at *909 10.5% with a base rate for current payments of 9%. In other words, to the extent income from the property cannot pay 10.5%, debtor proposes to pay at least 9% and accrue the difference until sufficient funds are available for pay out. Debtor also proposes to extend some of the loans to ten years. The objecting creditors claim the proposed interest rates and accrual feature of the Plan do not provide "fair and equitable" treatment to them under the Plan.
Gate City Savings and Loan ("Gate") has a first priority security interest in Palmer House and is presently owed approximately $1.2 million. Palmer House has an estimated value of approximately $4.3 million. Gate's loan to value and debt coverage ratios are 28% and 280%, respectively.
Brown Investment ("Brown") has a second trust deed on Palmer House and is owed approximately $2.4 million. Brown's loan to value and debt coverage rations are 84% and 93%, respectively.
Brown offered the declaration of Mr. William F. Morgan, Vice President of the commercial lending division of First Union National Bank to support its objection. In his opinion, the minimum interest rate to support a comparable loan would be 12% (i.e. prime (9%) plus 3%). In giving his opinion he took into consideration the second lien position of Brown, an equity cushion of approximately $295,000 and a loan coverage ratio exceeding 80%.
With respect to the Woodland Center property, it has an appraised value of $6.5 million. Woodland Center, Ltd. ("Woodland") has a second trust deed on the Woodland Center property with an aggregate outstanding indebtedness of $4.4 million. The loan to value and debt coverage ratios are 91% and 88%, respectively.
To support its objection to the 10.5% rate, Woodland offered the declaration of Dr. Michael Tennenbaum, a principal in the valuation and financial consulting firm of Flavell, Tennenbaum & Associates. He made a market study to ascertain the range of appropriate market interest rates required to reduce future cash flows to present value. He concluded that the appropriate rate would substantially exceed 10.5%.
In conducting his survey, he contacted mortgage brokers, mortgage bankers and other lenders in Southern California to determine the appropriate interest rate. He determined that it would be very difficult to obtain a second trust deed loan on the Woodland property with the high loan to value ratio (91%), a debt coverage ratio less than 100%, and interest only payments for 10 years. Tennenbaum further learned that second trust deed obligations on highly leveraged comparable properties would be priced at rates of return between 11% and 12%, assuming amortization of principal over the term of the loan. In his view, an additional interest premium of at least 1% to 2% would be required for an interest only loan. Accordingly, he opined that the appropriate discount rate should be between 12% and 14%.
At an earlier hearing, I found the value of the Southern Woods property to be $3.6 million. Southern Federal Savings and Loan of Georgia ("Southern Federal") holds a first trust deed securing an outstanding indebtedness of approximately $2.4 million. Southern Woods Associates, Ltd. ("SWA") holds a second trust deed securing a present indebtedness of approximately $1.2 million. The loan to value and debt coverage ratios for Southern Federal are 66% and 107%, respectively. The same ratios for SWA are 100% and 72%, respectively.
Southern Federal presented the testimony of Mr. William G. Iacobucci, Regional Manager/Multi-family Servicing Fund for the Southern East Region for the Federal Home Loan Mortgage Corporation. He indicated that the present FNMA rate for an amortizing fixed-rate loan is 11.29%. Since the proposed loan is interest only and has a negative amortizing schedule, he would add a premium of .75% to this rate. He, therefore, would estimate the fair market rate for such a loan to be 12.04%.
In response to these objections, debtor filed the declaration of Mr. David Gribin, President of Gribin Financial Corporation, a firm specializing in asset and property *910 management. Gribin has been active in the real estate management field for over 15 years. He was retained by debtor to determine whether the stream of deferred cash payments payable to the secured creditors under the Plan has a present value, as of the effective date of the Plan, equal to at least the value of the creditors' interests in the property of the estate. The loans proposed by debtor are fully secured, interest only, real estate loans, with 10 year maturities. Monthly payments are calculated at a 9% per annum rate, but may be as high as 10.5% per annum subject to available funds. Moreover, to the extent a claimant receives payments less than an amount calculated at the 10.5% per annum rate, the difference will accumulate and be added to principal of the claims at the end of each year and will thereafter accrue interest at the 10.5% rate.
According to Gribin, the 9% minimum pay rate and the 10.5% accrual rate offered in the Plan are competitive with current rates offered on similar loans in the market place. To reach this conclusion, he reviewed rates charged by savings and loan institutions in California. He concluded that loans secured by commercial real properties are made at interest rates equal to 2.5 points over the Eleventh District of the Federal Loan Home Mortgage Board of San Francisco (the "Eleventh District Index"). The Eleventh District Index for the month of May 1988 was approximately 7.5%. According to him then, the appropriate savings and loan variable rate on commercial properties would be approximately 10%. It was pointed out, however, that the Plan calls for a fixed accrual rate of 10.5%.
Gribin also testified that the FNMA fixed-rate loans on commercial properties ranged between 10.38% to 10.66%. The term of these loans is generally ten years. He further indicated that commercial lenders (i.e. insurance companies, pension plans) would make variable rate amortizing loans at between 10% and 10.5%. Lastly, he testified that rates on second trust deed loans ranged between 7% and 11%.
DISCUSSION
Any confusion regarding the appropriate approach in determining the discount rate for § 1129(b)(2)(A)(i)(II) of the Code was dispelled with the decision in In re Camino Real Landscape Maintenance Contractors, 818 F.2d 1503 (9th Cir.1987). In Camino Real, the court adopted the approach set forth in Colliers on Bankruptcy, Vol. 5, ¶ 1129.03 [4][f][i], at 1129 through 65 (15th Ed.1987). That test is stated as follows:
The appropriate discount rate must be determined on the basis of the rate of interest which is reasonable in light of the risks involved. Thus, in determining the discount rate, the court must consider the prevailing market rate for a loan of a term equal to the payout period, with due consideration of the quality of the security and the risk of subsequent default.
Id. at 1505. The Eighth and Eleventh Circuits also adopted this test. See United States v. Neal Pharmacal Co., 789 F.2d 1283, 1285 (8th Cir.1986); In re Southern States Motor Inns, Inc., 709 F.2d 647, 651 (11th Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). The Ninth Circuit Bankruptcy Appellate Panel also used this test in In re Welco Industries, Inc., 60 B.R. 880, 882 (9th Cir. BAP 1986).
The key to this test is that one does not look at the characteristics of the creditors in determining the interest rates. Rather, the debtor's capacity to borrow a similar amount on like terms in the market place is the appropriate focus of inquiry. Camino Real, supra at 1506. Although the issue in Camino Real involved a calculation of the § 1129(a)(9)(C) rate, the present value analysis is the same and the court's reasoning and holding are likewise applicable here. Id. at 1505.
In Welco, supra, the Bankruptcy Appellate Panel (the "BAP") also rejected the use of 26 U.S.C. § 6621 to establish the present value interest rate for deferred payments under § 1129(a)(9)(C) stating "The appropriate interest rate is the prevailing market rate for that type and quality loan. Current market conditions determine *911 what the market rate will be." 60 B.R. at 883. See also In re James R. Orosco, 77 B.R. 246 (Bankr.N.D.Cal.1987).
In a more recent BAP case, In re Patterson, 86 B.R. 226 (9th Cir. BAP 1988), the court upheld the bankruptcy court's determination that prime plus 4% for loans extending beyond five years was an appropriate discount rate under § 1225(a)(5)(B)(ii) of the Code. The court acknowledged that a blanket approach to those determinations is inappropriate stating "A case-by-case determination of the interest rate is mandatory because it is calculated according to the rate the reorganizing debtor would have to pay a creditor in order to obtain a loan on equivalent terms in the open market." Id. at 227.
Before going any further with this issue of the appropriate present value discount rates for these forced loans under the Plan, I need to resolve the creditors' objections to the use of an accrual rate. As previously explained, debtor proposes to pay currently at the rate of 9% and accrue an additional 1.5% unless net cash flow allows for payment of this accrual. If at the end of the year an accrual exists, it will be added to principal.
The objecting creditors argue that this treatment does not satisfy the fair and equitable test of § 1129(b)(2)(A)(i). Under this test, the secured creditors must receive payments equal to their allowed secured claims and these payments must have a present value equal to their allowed secured claims. The controversy relates to the present value issue and whether a deferral on deferral is appropriate.
Debtor points to two cases to support its accrual provision. See In re Pinebrook, Ltd., 85 B.R. 160 (Bankr.M.D.Fla.1988); In re James R. Orosco, supra. In Pinebrook, the plan provided for the accrual of the contract rate (12%) and regular payment at 9%. Testimony revealed that market rates for comparable loans ranged between 8 5/8% and 9¾%.
The court found that the dissenting creditor would receive the full present value of its claim under the plan. Id. at 162. This makes sense because current payments would be made at the market rate and the plan provided an upside for the creditor by accruing the difference between the contract rate and the market rate. Obviously, debtor is not doing that here. The payment rate on all these forced loans is substantially below the market rate.
In Orosco, the court found that a variable interest rate that would be adjusted each year based on any increase or decrease over the Eleventh District Rate was acceptable provided some additional creditor protections were incorporated into the plan. I do not read Orosco as supporting debtor's contention. The variable interest rate formula approved in Orosco is distinctly different than debtor's proposal and is not based on an accrual concept.
I do not believe Congress had in mind the deferral of any portion of the current interest payments required to make a secured creditor whole under the fair and equitable test. If I accepted debtor's argument, I would undercut the principle of present value which has been so carefully woven throughout the Code. You cannot defer the very interest payments that create present value and have present value of a stream of deferred principal payments.
Debtor might contend (although it did not) that the interest rate can be adjusted to reflect this accrual concept. Even if I agreed, I would be just guessing at the proper adjustment. I am unaware of any lenders that make loans on this basis. Furthermore, I am certain this was not the intent of Congress when it incorporated the present value concept into the Code.
Accordingly, I reject the idea of an accrual of present value payments and require monthly payments to be made currently at the appropriate market rate of interest which I shall now determine for each forced loan.
Debtor contends that I should use the interest rates for seller financed loans on comparable properties. According to debtor's expert, the range of rates for these types of loans is 7% to 11%. Debtor points out that generally when a seller takes back a loan, the purchase price is *912 increased to reflect the seller's risk in financing the transaction. Because the creditor in this situation has already been rewarded, debtor contends a lower rate is appropriate. The creditors who are in this category are Brown, Woodland, and SWA.
As I told debtor at the hearing, I do not believe the issue of seller financing during the initial transaction is relevent to a determination of the appropriate interest rate for the forced loans in the Plan. The Plan has the effect of proposing new loans by changing the terms of the existing loans. Unquestionably, a condition to accomplishing debtor's objective is an interest rate based on what debtor would have to pay to borrow today given a similar amount, terms and risks. As stated in Camino Real, "The debtor's characteristics determine the interest rate. The creditor's characteristics are irrelevant." Id. at 1506. Accordingly, the past is irrelevant to the present value analysis and the determination of a market rate of interest for the forced loans.
Addressing the Gate loan first, Gate is oversecured as the first lien holder on the Palmer House property. It presently enjoys a low loan to value ratio of 28%. Additionally, the coverage ratio is 280%. According to debtor's expert, the average FNMA interest rate on fixed-rate loans on multi-family properties of this kind is 10.5%. It appears commercial lenders would make variable-rate loans on comparable properties at between 10% and 10.5%. However, these are amortizing loans. I think a .25% premium is appropriate to reflect the added risk of a nonamortizing loan. Accordingly, I find the appropriate interest rate on the Gate loan should be 10.75%.
With respect to the Brown loan on the Palmer House property, Brown is in second position. It has an estimated loan to value ratio of 84% and a coverage ratio of 93%. Obviously, this is a risky loan for a lender. The loan to value ratio is acceptable for a second place financing, but a lender is unlikely to loan when projected income covers only 93% of the annual interest payments.
Debtor correctly points out that the Plan provides for a reserve to correct this deficiency during the early years of the loan. A lender will likely give some value to this even though there is no guarantee that the funds will be available if needed elsewhere. I believe a willing lender would add a 1.5% premium because the loan lacks debt coverage, is second in priority, is nonamortizing, and has a fixed interest rate. Accordingly, I believe the fair market interest rate on the Brown loan is 12%.
Turning next to the Woodland Center property, Woodland has a second trust deed securing approximately $4.4 million with a loan to value ratio of 88% and a loan coverage ratio of 91%. Tennenbaum, Woodland's appraiser, says most lenders would not make this loan given the high loan to value and income coverage ratios. If a lender did, he estimates an interest rate range of 12% to 14%. He would then add a premium of at least 1% to 2% to reflect the absence of a market for this kind of loan. I am unwilling to make an adjustment because lenders normally would not make the loan. A basic assumption in performing this present value analysis is that there is a hypothetical lender who will make a loan at a rate that reflects current market conditions and the associated risks. With this in mind, I find the appropriate interest rate for the Woodland Center loan is 12.125%.
As for the Southern Woods property, the first lien holder is Southern Federal. Its loan to value and income coverage ratios is estimated at 66% and 107%, respectively. These ratios are not out of line. Southern Federal offered the testimony of Mr. Iacobucci. He indicated that the appropriate rate should be 12.04%. I think he is overly aggressive in determining the rate. I believe the analysis that applied to the Gate loan is equally appropriate here. I, therefore, find 10.75% to be an appropriate rate.
Lastly, the SWA loan reflects loan to value and income coverage ratios of 100% and 72%, respectively. The Woodland loan analysis is applicable here although an additional adjustment is appropriate since *913 there is no equity. Accordingly, I find the appropriate interest rate to be 12.25%.
Separate findings of fact and conclusions of law with respect to this ruling are unecessary. The within memorandum opinion shall constitute my findings of fact and conclusions of law.
ORDER
In accordance with the findings of fact and conclusions of law set forth in my memorandum opinion this date, it is
ORDERED that the fair and equitable test of § 1129(b)(2)(A)(i) of the Bankruptcy Code requires that debtor's proposed plan of arrangement be modified to delete the deferral provision on the interest payments payable on the forced loans and change the interest rates on the forced loans to reflect a present value interest rate as set forth in the memorandum opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567525/ | 579 S.W.2d 183 (1979)
Nellie Frances DUNGAN, Appellant,
v.
Robert Daniel DUNGAN, Appellee.
Evelyn Tolbert OVERALL, Appellant,
v.
Willie Floyd OVERALL, Appellee.
Supreme Court of Tennessee.
April 2, 1979.
Thad M. Guyer, Memphis Area Legal Services Inc., Covington, for appellant.
William M. Leech, Jr., Atty. Gen., Jim G. Creecy, Asst. Atty. Gen., Nashville, intervenor for State.
OPINION
FONES, Justice.
These two cases were consolidated on appeal to dispose of a common issue. In the wake of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the judiciary has two choices in providing access to the courts for indigent plaintiffs in divorce cases, where the defendant's residence is unknown and cannot be ascertained upon diligent inquiry. The question is whether the courts should order the State to pay newspapers for service by publication or authorize a less costly method of substitute service of process that satisfies due process of law.
Both plaintiffs sued for divorce in the chancery court of Tipton County upon pauper's oaths, as provided for in T.C.A. § 20-1629. Both plaintiffs alleged that "the residence of defendant is unknown and cannot be ascertained upon diligent search and inquiry", giving rise to the necessity of service of process by newspaper publication, in accord with our statutes and rules.[1]See *184 T.C.A. §§ 36-807, 36-808, 21-212(5), 21-214, and T.R.C.P. 4.05.
Plaintiffs, by motion, asked the trial court to order service by publication and that the fifty dollar newspaper publication fee be paid or otherwise discharged by the clerk and master. The trial judge denied the motions on the grounds that the State Constitution prohibited the judicial appropriation of State or county revenues for the payment of the publication costs and that authorization of substitute service of process would be "statutorily or constitutionally infirm" because service of process by publication was, in his opinion, an essential prerequisite to a valid divorce decree.
On appeal, plaintiffs insist that the Due Process Clause of the fourteenth amendment to the federal constitution requires the State to pay the newspaper publication fee or that the court authorize an alternative form of constitutionally permissible constructive service of process. The Attorney General has intervened to defend the constitutionality of the challenged statutes.
In Boddie the indigent plaintiffs in divorce actions were denied access to the Connecticut courts because they were unable to pay court fees and costs of service of process, a statutory condition precedent to filing and obtaining relief.
The Supreme Court, speaking through Mr. Justice Harlan, said:
"Our conclusion is that, given the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages." 401 U.S. at 374, 91 S.Ct. at 784.
The Court limited the scope of its holding as follows:
"[W]e wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bona fides of both appellants' indigency and desire for divorce are here beyond dispute. We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship." 401 U.S. at 382-83, 91 S.Ct. at 788.
Since Boddie a number of our sister states have considered the question of whether the courts should order state or county governments to pay newspaper costs or authorize a less costly method of constructive service of process that satisfies constitutional due process requirements.
Under the compulsion of Boddie, some courts have ordered payment of newspaper publication fees to clear the way for indigent plaintiffs to proceed in divorce cases.[2] We do not think it appropriate to adopt that course in Tennessee. We agree with the observation of the Supreme Court of Washington in Ashley v. Superior Court, 82 Wash.2d 188, 509 P.2d 751, 755 (1973), to the effect that it is one thing for the judiciary to waive clerk's fees, etc. charged litigants by the courts already existing and functioning with appropriated public funds as required, and quite another thing to order the payment of public money to newspapers for service by publication.
*185 The particular means of making access to courts available to indigents is not mandated in Boddie only that due process prohibits denial of access solely because of inability to pay state-imposed fees. In fact, the Supreme Court suggested an alternative to service by publication:
"[W]e think that reliable alternatives exist to service of process by a state-paid sheriff if the State is unwilling to assume the cost of official service. This is perforce true of service by publication which is the method of notice least calculated to bring to a potential defendant's attention the pendency of judicial proceedings. See Mullane v. Central Hanover Bank & Trust Co., [389 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865,] supra. We think in this case service at defendant's last known address by mail and posted notice is equally effective as publication in a newspaper." 401 U.S. at 382, 91 S.Ct. at 788.
Several states have pursued that suggested course, and some have found existing statutory language, express or implied, as authority for ordering an alternative method of constructive service of process other than publication. See, e.g., Cohen v. Board of Supervisors, 20 Cal. App.2d 236, 97 Cal. Rptr. 550 (Ct.App. 1971); see generally Annot., 52 A.L.R.3d 844 (1973).
We are of the opinion that of the two options open to the courts as a result of the Boddie mandate, constructive service of process by registered mail and posting of notices is the appropriate course for Tennessee. The Attorney General suggests that this Court and the trial courts have implied, if not express, statutory authority to do so, citing T.C.A. §§ 16-102(6), 16-112 and 16-117. We do not choose to rest our authority to promulgate a method of constructive service of process, in these limited circumstances, on those Code sections. We have an affirmative constitutional duty under both the United States Constitution and the Constitution of Tennessee to open the courts to bona fide indigents seeking, in good faith, the judicial dissolution of their marriages. That duty triggers the inherent and statutory supervisory powers[3] of this Court, and we hold that, upon motion, supported by affidavit, trial judges may, in the exercise of sound discretion, order in lieu of publication, that the clerk mail a copy of the complaint and summons by return receipt registered mail to defendant's last known address and post a copy of the summons at three public places in the county; that the clerk make an entry on the rule docket so showing, and note thereon and file with the record the document returned. The Supreme Court in Boddie expressly sanctioned such a method of substitute service as satisfying federal due process requirements. We find it adequate to comply with Tennessee constitutional due process for the limited purpose of conferring in rem jurisdiction of the marital status.
The affidavit in support of plaintiff's motion to order that method of constructive service of process, in lieu of publication, shall set forth facts in support of the claim of indigency and provide a full and detailed account of the efforts made to locate defendant including the names and addresses of next of kin, the name and address of defendant's last known employer and such other information as may be relevant in the circumstances. The issues at the hearing on such motion are the bona fides of plaintiff's indigency and diligence in seeking to ascertain defendant's residence and address. The trial judge may require such additional evidence as may be appropriate for an adjudication of those issues.
These cases are remanded to the Chancery Court of Tipton County for further proceedings consistent with the holding herein.
Costs are to be adjudged one-half against each appellant.
COOPER, BROCK and HARBISON, JJ., and HUMPHREYS, Special Judge, concur.
NOTES
[1] T.C.A. § 20-235(g), the recent addition to the Tennessee long-arm statute (Ch. 715, Tenn. Pub. Acts of 1978) now provides:
"Any action of divorce, annulment or separate maintenance where the parties lived in the marital relationship within this state, notwithstanding one party's subsequent departure from this state, as to all obligations arising for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state."
But that statute is not available when the residence of the defendant is unknown and cannot be ascertained upon diligent inquiry. T.C.A. § 21-212(5).
[2] E.g., Hart v. Superior Court, 16 Ariz. App. 184, 492 P.2d 433 (1971); Deason v. Deason, 32 N.Y.2d 93, 343 N.Y.S.2d 321, 296 N.E.2d 229 (1973); Monroe v. Monroe, 33 Ohio Misc. 223, 294 N.E.2d 250 (1972).
[3] See T.C.A. §§ 16-330 333. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568895/ | 772 S.W.2d 736 (1989)
Robin MILLIGAN, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 40789.
Missouri Court of Appeals, Western District.
April 25, 1989.
Motion For Rehearing and/or Transfer Denied May 30, 1989.
Application to Transfer Denied August 1, 1989.
Fred Duchardt, Public Defender, Liberty, for appellant.
William L. Webster, Atty. Gen., William J. Swift, Asst. Atty. Gen., Kansas City, for respondent.
Before BERREY, P.J., MANFORD and GAITAN, JJ.
Motion For Rehearing and/or Transfer to Supreme Court Denied May 30, 1989.
BERREY, Judge.
Robin Milligan appeals the denial of his Rule 27.26 motion for post-conviction relief after an evidentiary hearing. Movant argues *737 that the trial court erred in overruling his Rule 27.26 motion because he did not fully understand his right to a jury trial, he relied upon certain promises made to him by counsel which did not come to fruition, and because the plea court accepted movant's plea of guilty without inquiring and ascertaining facts about the factual basis for movant's plea. The judgment of the motion court is affirmed.
On March 22, 1982, movant pled guilty to a charge of first degree robbery. Movant's plea was taken as a result of a plea agreement between the parties wherein "the State has agreed to dismiss the robbery count and all charges under CR81-1611 and dismiss Counts 2, 3, and 4 of CR81-1354." Essentially, this reduced the charges filed against movant to one charge of first degree robbery. It must also be noted that each count of the information charged that a participant in the robbery was armed with deadly weapons. In exchange for the dismissal of the other charges, the movant pled guilty to Count I of CR81-1354. The prosecutor stated, "The State will recommend sixteen year sentence to run consecutive to a five years MDC the defendant received under CR78-0929 which he's in violation in this robbery case of that previous burglary, so it would be sixteen and five consecutive...."
Sentencing on the robbery charge in Count I of CR81-1354 occurred on June 28, 1982. As agreed, movant was sentenced to sixteen years on Count I to run consecutively with the five years which had been imposed in CR78-0929.
Movant's original Rule 27.26 petition was filed pro se on November 28, 1983. He alleged that he was denied effective assistance of counsel because "his counsel used Trickery and Deceit to get him to plead guilty." He further alleged that he had been denied equal protection and due process because the trial judge did not give him an opportunity to present information about his case to the court. Through counsel, on November 10, 1987, an amended motion was filed. Movant alleged that his attorney did not explain what "consecutive" meant as opposed to "concurrent" in regard to sentencing and that he would only have to spend five years in prison before becoming eligible for parole.
An evidentiary hearing was held on December 18, 1987. Movant and Brian Franklin, movant's co-defendant in connection with the underlying charges, testified in support of movant. Joseph Locascio, movant's trial counsel, testified on behalf of respondent. On January 6, 1988, the motion court entered findings of fact and conclusions of law. The court found that movant "knowingly and voluntarily" entered a guilty plea and that movant's testimony "that he did not understand the meaning of consecutive sentences at the time he entered his plea" was not credible. The court also found that a factual basis existed for the plea. Movant appeals.
Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings, conclusions and judgment of the court hearing the motion are clearly erroneous. Bailey v. State, 738 S.W.2d 577, 578 (Mo.App. 1987). An appellate court will find the findings and conclusions of the hearing court clearly erroneous only if left with a definite and firm impression that a mistake has been made. Nave v. State, 757 S.W.2d 249, 251 (Mo.App.1988).
There are two parts to the test for ineffective assistance of counsel. In order to prevail on his claim, movant must show: (1) that performance of counsel was lacking in the care and skill of a reasonably competent attorney acting in similar circumstances; and (2) that as a result movant was prejudiced by the alleged ineffectiveness of counsel. Baker v. State, 670 S.W.2d 597, 598 (Mo.App.1984).
Movant's first complaint is that the trial court erred in overruling his petition as movant was denied effective assistance of counsel in that movant entered his plea relying on certain promises made by and through his trial counsel and did not fully understand his rights to a jury trial. Movant claims that trial counsel did not bring to fruition what was promised and movant was thereby prejudiced. Movant claims that he was promised concurrent sentences *738 but received consecutive sentences and that he was also promised that he would be eligible for parole after serving five years.
The motion judge found this contention not credible. The credibility of witnesses is to be determined by the motion court and it may reject testimony even when no contrary evidence appears. Richardson v. State, 719 S.W.2d 912, 915 (Mo. App.1986). The trial court's determination is entitled to considerable deference. Pool v. State, 670 S.W.2d 210, 211-12 (Mo.App. 1984).
At the hearing on the guilty plea the prosecutor clearly stated that the recommended sixteen year sentence was to be consecutive. Movant's plea counsel, Mr. Locascio, reiterated the prosecutor's explanation of the plea stating that, "the State has entered into an agreement with defendant that they will recommend sixteenno more than sixteen years to run consecutive to the five years that the defendant most likely will receive in CR78-0929." The judge pronounced sentence accordingly. Movant presents no real reason why the motion court's findings on this point should be overturned. Nor does movant's bold assertion, that he understood he'd be out in five years merit serious consideration as it was refuted by Mr. Locascio at the motion hearing.
Furthermore, movant does not demonstrate any prejudice as a result of his alleged "misunderstanding." Testimony on this point clearly demonstrates why movant's contention lacks merit:
Q. All right. Assuming that you had counsel at that time that you trusted, and assuming that you knew that you would not be released from the penitentiary within five years, would you have back then insisted upon going to trial, or would you have gone ahead and accepted the plea agreement anyway?
A. Had I had counsel that I couldthat I could have felt that I could really trust, then I probably would have accepted the plea of sixteen years.
Q. Even though it was consecutive, even though it was stacked one on top of the other?
A. Yes.
Appellant explained his distrust for plea counsel on the grounds that another attorney in the same office represented his co-participant. Yet, when asked what he would do if he had to do it all again, he replied, "I believe that I would enter a plea of guilty today."
Movant's Point I is denied.
Movant further complains that the motion court erred in its denial of his Rule 27.26 motion because the plea court did not sufficiently inquire and ascertain information about the factual basis for movant's plea of guilty.
Rule 24.02(e) mandates that, "The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." If the facts presented to the court fall short of establishing the commission of a crime then the offered plea should not be accepted. Jones v. State, 758 S.W.2d 153 (Mo. App.1988). It is not necessary for defendant to admit to or recite the facts that constitute the offense as long as a factual basis for the plea does, in fact, exist as a factual basis is established if the defendant understands the facts outlined by the judge or prosecutor. Id.
Movant specifically complains that a factual basis is absent because the plea record does not show that a weapon was employed in the robbery. It is claimed that a factual basis exists only for finding the crime of second degree robbery for which the maximum sentence authorized is fifteen years and that a movant's punishment should be reduced accordingly. Movant is in error.
In the plea hearing, movant admitted entering a Radio Shack, tying three people up and taking some stereo equipment and car tapes. The information, in Count I, alleged the following:
Robin L. Milligan either acting alone or knowingly in concert with another, forcibly stole misc. property, television, radios, *739 stereos, cassets [sic] players, police scanners, owned by Radio Shack, a corporation and in the custody of Jo Ann Crouser and Larry Fisher, and in the course thereof Brian Franklin, another participant to the crime was armed with deadly weapons.
A plea of guilty is an admission as to the facts alleged in the information. Sales v. State, 700 S.W.2d 131, 132 (Mo.App.1985). The facts in the information to which movant pled guilty are a sufficient factual basis for first degree robbery. See § 569.020, RSMo 1986. Movant's Point II is denied. The order of the motion court, overruling movant's Rule 27.26 motion for post-conviction relief is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
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