url stringlengths 55 59 | text stringlengths 0 818k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/1567352/ | 579 S.W.2d 486 (1979)
Ex parte John L. HEBERT.
No. 58449.
Court of Criminal Appeals of Texas, Panel No. 1.
March 28, 1979.
Rehearing Denied May 2, 1979.
Tom Roberson, court appointed, Houston, Walter E. Boyd, Jr., Houston, for appellant.
Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Chris A. Lorenzen, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
OPINION
W. C. DAVIS, Judge.
Appeal is taken from an order denying release in a habeas corpus proceeding in which petitioner sought release on bail pending appeal from a felony conviction.
The record reflects that on August 23, 1977, petitioner was convicted of the offense of rape of a child. The jury assessed punishment at ten (10) years in the Texas Department of Corrections.
On April 7, 1978, a hearing was held on petitioner's writ of habeas corpus, after *487 which the trial court denied petitioner's request for bail pending appeal, pursuant to Article 44.04(c), Vernon's Ann.C.C.P.
Article 44.04(c), supra, provides:
"Pending appeal from any felony conviction where the punishment does not exceed 15 years confinement, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant ... is likely to commit another offense while on bail...."
Petitioner now contends that the court abused its discretion in denying him bail, as the evidence is insufficient to give the court good cause to believe that he would commit another offense while on bail. We agree.
At the hearing, the State introduced evidence of petitioner's conviction and sentence. Then the State, without objection by petitioner, introduced into evidence State's Exhibit No. 2, which was a copy of the report of a psychiatrist who examined petitioner, dated some eight months previously.
In this report, the psychiatric diagnosis was that petitioner "could best be described as a paranoid personality disorder with many borderline schizophrenic symptoms." The State then introduced Exhibit No. 3, which was a lengthy interpretation of the results of the Minnesota Multiphasic Personality Inventory (MMPI) tests which had been administered to appellant. Attached to this interpretation of petitioner's test scores was a list of test questions, with the answers given by appellant indicated thereon. Also attached was an uninterpreted statistical chart of petitioner's raw test scores.
On the basis of State's Exhibit Nos. 2 and 3, the trial court stated:
"... I am concerned about the psychiatric reports. They do cause me concern to the extent that I believe that there is a reason to believe that there is a probability of [petitioner] committing other offenses and, therefore, I am going to deny bail pending appeal."
Petitioner correctly contends that the psychiatric report and the report interpreting his test scores were hearsay, and without probative force, even though admitted without objection. Hanna v. State, 546 S.W.2d 318 (Tex.Cr.App.1977); Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975); Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr. App.1975).[1] Since hearsay evidence, even admitted without objection, constitutes no evidence, we hold that the trial court abused its discretion in denying petitioner bail on this ground.
This case is remanded to the trial court, with an order for the court to either set bail for petitioner or to hold another hearing to determine whether good cause exists to deny bail on another ground.
It is so ordered.
NOTES
[1] This rule of law is not without criticism. See Hanna v. State, supra (dissenting opinion). However, it remains the rule of law in Texas, and therefore must be applied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567344/ | 579 S.W.2d 475 (1979)
Ex parte Leroy MOORE, Appellant.
No. 60174.
Court of Criminal Appeals of Texas, Panel No. 3.
February 21, 1979.
Rehearing Denied May 2, 1979.
Before DALLY, W.C. DAVIS and CLINTON, JJ.
Rehearing En Banc Denied May 2, 1979.
*476 OPINION
CLINTON, Judge.
This is an appeal from an order of the trial court, following a habeas corpus hearing on November 7, 1975, remanding appellant to custody for extradition to the State of Florida. Appellant's only ground of error on appeal is that he was not allowed to challenge the probable cause for the arrest warrant issued in the State of Florida.
At the habeas corpus hearing the State began with testimony from Barbara Williams, a deputy sheriff for Tarrant County who handles extradition matters. Through her testimony the State introduced a Governor's warrant from the State of Texas which had been served upon appellant. The regularity of that warrant is not challenged in this appeal.
The State then called Amy Harmon, an investigator for the Ninth Judicial Circuit State Attorney's Office of Florida. Her testimony showed that she had been involved in the investigation of a "cocaine transaction" in which appellant was implicated in Orlando, Florida, on the evening of April 4, 1978. She identified appellant as the same Leroy Moore wanted for arrest in that State. The witness further testified that as a result of the investigation an indictment was issued in Florida naming appellant as the defendant. As a result of the indictment the Florida arrest warrant was issued, and the investigator proceeded "to have that warrant in that indictment entered into the process of extradition."
Appellant's attorney was then allowed over objection to cross-examine the investigator concerning the sufficiency of the probable cause for the arrest warrant issued in the State of Florida. The testimony showed that a paid informant had told Florida investigators that appellant would be involved in a cocaine transaction on the evening of April 4, 1978, and that he would arrive at the Orlando airport the afternoon of that same date. Investigator Harmon went to the airport and saw appellant arrive at the time the informant had stated. An electronic monitoring device was attached to the confidential informant who met with several persons the evening of April 4, 1978. The conversation recorded revealed a selling of three ounces of cocaine to appellant and one other person for $3500. At that point the trial judge ended the cross-examination and found that probable cause had been shown for the arrest warrant issued in the State of Florida.
It is apparently appellant's position on appeal that he was not allowed sufficient latitude in cross-examining investigator Harmon on the issue of probable cause to arrest in the requesting state. We are faced with the threshold question of whether a defendant in an extradition hearing has a right to inquire at all into the probable cause for arrest in the requesting state when a Governor's warrant which is regular on its face has been introduced into evidence at the extradition hearing.
Extradition proceedings are governed by Article 51.13, Vernon's Ann.C.C.P., and issuance of the Governor's warrant is described in Section 7 of that Article. We note that the Governor's warrant and supporting papers are not included as part of the record in this appeal. The statement of facts indicates that such a warrant was introduced through the testimony of Deputy Williams. Investigator Harmon's testimony on direct indicated that the Governor's warrant was based on an indictment and search warrant from Florida. We will assume those facts to be true since neither is challenged in this appeal and none of the documents were included by appellant in the record before us.
This precise question was addressed by the United States Supreme Court in its recent decision in Michigan v. Doran, ___ U.S. ___, 99 S. Ct. 530, 58 L. Ed. 2d 521 (1978). In that case the defendant petitioned for writ of habeas corpus attacking the validity of a governor's extradition warrant issued pursuant to the Uniform Criminal Extradition Act as adopted by the State *477 of Michigan.[1] The Michigan Supreme Court reversed the denial of the requested habeas corpus relief on a finding that the requesting State, Arizona, failed to show a factual basis for its determination of probable cause to arrest. The documents from Arizona supporting the Michigan Governor's warrant stated specifically that there had been a judicial finding of "reasonable cause" for arrest. However, the Michigan Supreme Court held that the documents were based on "conclusory language" and the supporting affidavits failed "to set out facts which could justify a Fourth Amendment finding of probable cause." The United States Supreme Court reversed and held that "once the governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state." 99 S.Ct. at 536.
As can be seen by the above language, the precise holding of the case is that the right to a probable cause inquiry in the asylum state is foreclosed when the Governor's warrant is based on a "judicial determination" in the requesting state that probable cause for the arrest exists. "[W]hen a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination." 99 S.Ct. at 536. A statement in the supporting papers from the requesting state that such a judicial determination has been made is apparently sufficient to satisfy that test. It therefore follows that a defendant's right to challenge probable cause in the requesting state only arises if the documents supporting the Governor's warrant are insufficient to establish that a judicial determination of probable cause has been made in the requesting state.
Appellant cannot contend that the supporting documents for the Governor's warrant in this case fail to show a judicial determination of probable cause in the State of Florida because the documents were not made a part of the record in this appeal.[2] Further, even if the documents failed to show that a probable cause determination had been made, appellant was allowed extensive cross-examination of Investigator Harmon which clearly established that probable cause existed for appellant's arrest.
For these reasons the judgment below is affirmed.
NOTES
[1] Texas has also adopted the Uniform Criminal Extradition Act in the form of Article 51.13, Vernon's Ann.C.C.P.
[2] Appellant's counsel did have Deputy Williams read into the record the application for requisition made by the affected state attorney in Florida which states, in part, that Leroy Moore was charged with the crime of possession of cocaine "as is shown by a certified copy of the affidavit and warrant made before and issued by a magistrate or an indictment duly found by a grand jury attached hereto .." When extradition is sought on the basis of an indictment that the grand jury found probable cause is presumed, Ex parte Manzella, 452 S.W.2d 913 (Tex.Cr.App.1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567364/ | 86 F.2d 796 (1936)
CROWE
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 5912.
Circuit Court of Appeals, Seventh Circuit.
December 12, 1936.
Richard S. Tuthill and George K. Bowden, both of Chicago, Ill., for petitioner.
Robert H. Jackson, Asst. Atty. Gen., J. Louis Monarch and Arnold Raum, Sp. Assts. to Atty. Gen., and Morton K. Rothschild, of Washington, D. C., for respondent.
Before SPARKS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
SPARKS, Circuit Judge.
This appeal involves the assessment of additional income taxes for 1926, 1927 and 1928, against Marie E. Crowe, individually, on unreported income of her husband, Timothy J. Crowe, who died on or about August 28, 1933.
During the years involved, the husband filed joint income tax returns for himself and wife. The return for 1926 disclosed a net income of $7,210.12. Neither the 1927 nor the 1928 return disclosed any net income.
Subsequently, the Commissioner discovered unexplained bank deposits for those years in the name of the husband, strongly suggestive of unreported income. He thereupon proposed to assess a deficiency upon the husband, and determined that additional income had been received by him in the amount of $181,474.25 for 1926, $601,260.95 for 1927, and $428,916.80 for 1928. These *797 amounts were stipulated as correct. Notice of the deficiency was mailed to the husband on October 23, 1930, in which it was proposed to assess the tax based on those incomes together with a fifty per cent civil fraud penalty. The husband appealed to the Board of Tax Appeals, but in 1933 he died, whereupon his wife as administratrix of his estate, was substituted as a party in the proceeding before the Board. On account of the death, the claim for penalty was abandoned by the Government.
On March 15, 1934, the Commissioner mailed a deficiency notice to the wife, individually, involving the same deficiencies without penalties. She also appealed to the Board, and both cases were consolidated for hearing. It was stipulated that the wife had no knowledge of any additional income received by her husband during the years involved; nor of the contents of the joint returns filed by him; nor of her husband's fraud with respect thereto. The wife raised the additional defense that the statute of limitations had run at the time the second deficiency notice was mailed.
The Board of Tax Appeals found that the sums added by the Commissioner were income fraudulently withheld from the returns involved and entered judgment for the Government in the first proceeding against the petitioner in her representative capacity. No question is here raised as to the Board's finding with respect to the assessment against petitioner in her administrative capacity.
In the second proceeding the Board held that on account of the fraudulent returns of the husband, the statute of limitations did not run in petitioner's favor, and rendered judgment against her individually for the deficiencies. The questions presented are (1) whether petitioner, individually, was liable for taxes on her husband's income not shown in the returns, and (2) whether the assessment of the deficiencies against petitioner individually was barred by the statute of limitations.
Sections 210 and 211 of the Revenue Act of 1926 (44 Stat. 21) respectively hold that normal taxes and surtaxes shall be levied, collected and paid for each taxable year, upon the net income of every individual as provided in section 223 (44 Stat. 37). That section provides:
"(b) If a husband and wife living together have an aggregate net income for the taxable year of $3,500 or over, or an aggregate gross income for such year of $5,000 or over
"(1) Each shall make such a return, or
"(2) The income of each shall be included in a single joint return, in which case the tax shall be computed on the aggregate income."
Identical provisions appear respectively in sections 11, 12, and 51 (b) (1, 2) of the Revenue Act of 1928 (26 U.S.C.A. §§ 11 note, 12 note, and § 51 and note).
Article 401 of Treasury Regulations 69, and Article 381 of Treasury Regulations 74 are here applicable and each contains the following clause: "where the income of each is included in a single joint return, the tax is computed on the aggregate income and all deductions and credits to which either is entitled shall be taken from such aggregate income * * *"
Section 277(a) of the Revenue Act of 1926 (44 Stat. 58) provides that imposed income taxes shall be assessed within three years after the return is filed, and section 275(a) of the Revenue Act of 1928 (26 U.S. C.A. § 275 note) reduces that period to two years. Section 278(a) of the Revenue Act of 1926 (44 Stat. 59), and section 276(a) of the Revenue Act of 1928 (26 U.S.C.A. § 276 and note) both provide that in case of a false or fraudulent return with intent to evade the tax it may be assessed at any time. It is conceded that assessment of the taxes in controversy against petitioner individually is barred by the statutes of limitations unless the statutes referred to are applicable to the facts here presented.
The Board held that the liability for the aggregate tax on the aggregate net income of the husband and wife was their joint and several liability. That interpretation followed their previous decisions in Buchhalter and wife v. Com'r, 29 B.T.A. 600; Carroro and wife v. Com'r, 29 B.T.A. 646, and Cole, Executrix, v. Com'r, 29 B.T. A. 602. The Court of Appeals for the Ninth Circuit reversed the Board's decision in the Cole case, Cole v. Commissioner, 81 F. (2d) 485, 104 A.L.R. 420. It held that the liability was not joint and several, and that where joint returns had been filed by the husband and wife under the Revenue Act of 1928, the husband could not be held liable for additional tax found to be due on the wife's additional income tax in the year of the joint return. Subsequently, the Board followed that decision in Darling and *798 wife v. Com'r, 34 B.T.A. 1062. A perusal of the decision of the Ninth Circuit convinces us that its conclusions are quite sound. At least it must be conceded that the language of the statute rendered the question a doubtful one. It is clear that if respondent's contention is correct, it must be by reason of implications arising from the language of the statute and not by any clear expression of the lawmakers. Under such circumstances, the doubt must be construed in favor of the taxpayer.
The decision of the Board of Tax Appeals is affirmed as to petitioner in her representative capacity, and reversed as to her individual liability. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567366/ | 579 S.W.2d 24 (1979)
Charles Douglas YORK, Appellant,
v.
Brenda Sue YORK, Appellee.
No. 8223.
Court of Civil Appeals of Texas, Beaumont.
February 8, 1979.
Jerry V. Pennington, Orange, for appellant.
*25 Jim Sharon Bearden, Orange, for appellee.
KEITH, Justice.
The husband, respondent below, appeals from an adverse judgment rendered in a bench trial of the divorce and complains only of the division of the community property.
The trial court divided the property as shown in the margin.[1] Appellant's sole complaint is directed to the award of $6,500 in cash since, admittedly, such constituted one-half of a settlement of appellant's Worker's Compensation claim for partial disability for the sum of $13,000.
Our record discloses that appellant was injured on January 13, 1976, while in the course of his employment. He was totally disabled for a short period of time and received maximum Worker's Compensation Insurance benefits during his period of total disability as well as an advance of $500 on his final settlement. He resumed his employment but did not work every day. Finally, on December 30, 1977, an agreed judgment was entered in his suit for compensation benefits wherein the husband received an additional $13,000 in settlement of all past and future claims for his injury and incapacity. His attorney was awarded one-fourth of such recovery as his fee.
We are unable to determine from the record how much of such settlement was for past due and accrued compensation payments and how much thereof represented payment for lost earning capacity in the future.[2]
The compensation suit was settled while the parties were separated and not living together but a divorce suit was not filed by the wife until January 16, 1978. According to appellant, the entire settlement figure, $13,000, has been kept separate and not commingled with any other funds.
Appellant argues that Tex. Family Code Ann. § 3.63 (1975),[3] has no applicability under the rationale of Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977). He also contends that under Tex. Family Code Ann. § 5.01(a)(3) (1975),[4] the compensation benefits he received constituted his separate property and that the trial court was without authority, under Family Code § 3.63, to divest him of such separate property. See also Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972).
Appellant's reliance upon Eggemeyer is misplaced. The Supreme Court there held that a trial court could not divest a spouse of his title to separate real property; it did not change the rule permitting divestiture of personalty upon the granting of the divorce. Muns v. Muns, 567 S.W.2d 563, 565-567 (Tex.Civ.App.Dallas 1978, no writ). See also J. Sampson, "Common Law Property," *26 42 Tex.B.J. 131, 132 (1979). Appellant may not prevail on this appeal by reliance upon Eggemeyer.
Appellant suggests that the trial court should have followed the rationale of Hicks v. Hicks, 546 S.W.2d 71 (Tex.Civ.App.Dallas 1976, no writ). He argues that appellee did not introduce evidence to indicate that any portion of the settlement was for compensation for loss of earning capacity during the marriage.
We have examined the record carefully and find that while both parties were thoroughly familiar with the settlement negotiations, only appellant gave testimony concerning the basis thereof and, it must be admitted, it leaves much to be desired. The testimony of appellant is not entitled to the weight given to that of the defendant in O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 116 (Tex.1976), mandate recalled and reissued, 551 S.W.2d 32 (Tex.1977).
We turn now to appellant's claim that the language found in Tex.Rev.Civ.Stat.Ann. art. 8306, § 3 (1967),[5] proscribes a judicial assignment of the compensation benefits. Under different circumstances than those facing us today, such prohibition has been liberally construed to protect the benefits to the worker against claims of others. See authorities cited in Hicks v. Hicks, supra (546 S.W.2d at 73-74). See also the general discussion of the section to be found in Highland Park State Bank v. Salazar, 555 S.W.2d 484 (Tex.Civ.App.San Antonio 1977, writ ref'd n.r.e.).
Hicks v. Hicks, supra, contains a discussion of most of the cases on the subject; but, it is factually different from ours. There, the settlement was made after the divorce and the holding turned on the fact that the wife had not discharged her burden of showing that the settlement funds belonged to the community. In our case, it is the appellant who labors under the burden of establishing that the settlement was separate, and not community, property. And, in the discharge of this burden, he is faced with the rule stated in Tex.Family Code Ann. § 5.02 (1975): "Property possessed by either spouse during or on dissolution of marriage is presumed to be community property."
In our case, we have no dispute as to the source of the funds and there has been no commingling of such funds with any other funds. But, appellant labored under the burden of proving its separate character by "satisfactory evidence." Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965). Or, as stated in Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975), "the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage." See also Trevino v. Trevino, 555 S.W.2d 792, 796 (Tex.Civ.App.Corpus Christi 1977, no writ). As indicated earlier, appellant did not convince the trier of the facts that the settlement funds did not constitute payment for loss of earning capacity during marriage.
Had appellant made the necessary proof that the settlement funds were attributable to loss of future earning capacity, the authorities cited in Hicks, supra, would have been persuasive if not controlling. We simply hold that appellant did not discharge his burden of showing the separate character of the property. Cockerham, supra.[6]
In Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974), the Court quoted Family Code § 3.63, and continued:
"Texas courts have held that such division [of the community property] does not have to be equal, and appellate courts have held it must be presumed that the trial court exercised its discretion properly, *27 and that a case should be reversed only where there is a clear abuse of discretion.... It is well established that Texas divorce courts are given wide discretion in making division of the property of the parties. That discretion will not be disturbed on appeal unless the court has clearly abused its discretion....." (all citations omitted)
Under the record which we have reviewed, we do not find an abuse of discretion confided in the trial court; and, the judgment is AFFIRMED.
NOTES
[1] The wife was awarded (as her separate property and the husband divested of all right, title, and interest in): a Suburban automobile, a chest of drawers, a washer and dryer, one-half of the 1977 income tax refund and $6,500 in cash. She was directed to assume the indebtedness upon the automobile and to pay all debts she had incurred since the separation of the parties.
The husband was awarded (as his separate property and the wife divested of all right, title, and interest in): a Ford pickup, a queen-sized bed including mattress, springs and frame; an ice box, one-half of the income tax return for 1977, the Republic of Texas savings account, a house and lot, and $6,500 in cash. He was directed to pay all indebtedness upon the house and lot and upon the truck as well as all indebtedness he had incurred since separation.
[2] The most favorable testimony from appellant which we can find in the record is his assent to a leading question by his counsel: "... then most of the money you have [from the settlement] is for weeks that are still to come in the future in 1978, '79, '80, '81, '82, '83? Is this correct?"
[3] Sec. 3.63, "In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage."
[4] Sec. 5.01(a), "A spouse's separate property consists of:
* * * * * *
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage."
[5] Sec.3, insofar as material, reads: "All compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void."
[6] It is appropriate to note that appellant has no points of error challenging the factual sufficiency of the evidence to sustain the trial court's action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567377/ | 579 S.W.2d 478 (1979)
Philip Abbott MASQUELETTE, Appellant,
v.
The STATE of Texas, Appellee.
No. 56034.
Court of Criminal Appeals of Texas, Panel No. 3.
March 21, 1979.
Rehearing Denied May 2, 1979.
*479 Philip Abbott Masquelette, pro se.
Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS and TOM G. DAVIS, JJ.
Rehearing En Banc Denied May 2, 1979.
OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for speeding under Art. 6701d, Secs. 166 and 169B, V.A.C.S. Punishment was assessed by the court at a fine of $101.00.
The record reflects that this case was originally tried in the Justice of the Peace Court, Precinct No. 1, of Fayette County. Appeal was taken to the County Court of Fayette County. The present appeal is from appellant's conviction in the county court.
Initially, appellant contends that he was denied due process of law under the Fourteenth Amendment to the United States Constitution when he was tried before a non-lawyer county judge.
In Ex parte Ross, 522 S.W.2d 214 (Tex.Cr. App.), cert. denied, 423 U.S. 1018, 96 S. Ct. 454, 46 L. Ed. 2d 390 (1975), this Court noted that there is no constitutional or statutory *480 requirement in Texas that a county judge be an attorney. The only qualification concerning legal knowledge or training is that a county judge be "well informed in the law of the State." Art. 5, Sec. 15, Constitution of Texas. See also Art. 1927, V.A.C.S. Ex parte Ross, supra, was decided in accordance with two prior Texas cases, Ex parte Craig, 150 Tex. Crim. 598, 193 S.W.2d 178 (1946), and Little v. State ex rel. Parsel, 75 Tex. 616, 12 S.W. 965 (1890). The appellant argues that the recent decision of the United States Supreme Court in North v. Russell, 427 U.S. 328, 96 S. Ct. 2709, 49 L. Ed. 2d 534 (1976), mandates a reconsideration of our holding in Ross.
In North, the specific question presented to the United States Supreme Court was whether an accused subject to possible imprisonment was denied due process when he was tried before a non-lawyer police court judge. The Supreme Court declined to decide whether a defendant may be convicted and imprisoned when the only trial afforded him is before a lay judge, however, as Kentucky procedure entitled him to a trial de novo before a lawyer judge. Cf. Ludwig v. Massachusetts, 427 U.S. 618, 96 S. Ct. 2781, 49 L. Ed. 2d 732 (1976). Thus, North is not dispositive on this issue.
Appellant has presented no other reason for us to depart from our holding in Ross, and we decline to do so. Appellant's contention that he was improperly tried before a non-lawyer judge is overruled.
Appellant next contends that Art. 6701d, Sec. 169B, V.A.C.S., the statute enabling the State Highway and Public Transportation Commission to set temporary maximum speed limits, is unconstitutional. He maintains that this statute is an unconstitutional delegation of the Legislature's authority.
In Ex parte Smith, 441 S.W.2d 544, this Court reviewed the constitutionality of Art. 6701c-3, V.A.C.S. This statute delegated the authority to set minimum safety standards for motorcycle helmets to the Department of Public Safety. Riding a motorcycle without a helmet so approved was a criminal violation. This Court held that the delegation of that authority to the Department of Public Safety was constitutional.
In Ex parte Granviel, 561 S.W.2d 503, this Court was again faced with a challenge to the constitutionality of a statute based on its delegation of authority to an agency. This Court stated:
"Generally, a legislative body, after declaring a policy and fixing a primary standard, may delegate to the administrative tribunal or officer power to prescribe details, Margolin v. State, 151 Tex. Crim. 132, 205 S.W.2d 775 (1947); Williams v. State, 146 Tex. Crim. 430, 176 S.W.2d 177 (1943), such as to establish rules, regulations or minimum standards reasonably necessary to carry out the expressed purpose of the act. Beall Medical Surgical Clinic and Hospital, Inc. v. State Board of Health, 364 S.W.2d 755 (Tex.Civ.App.-Dallas, 1963), and cases there cited.
"Thus, the existence of an area for exercise of discretion by an administrative officer under delegation of authority does not render delegation unlawful where standards formulated for guidance and limited discretion, though general, are capable of reasonable application. Nichols v. Dallas, supra [347 S.W.2d 326 (Tex.Civ. App.-Dallas, 1961)], and cases there cited. So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature's jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Commissioners Court of Lubbock v. Martin, supra [471 S.W.2d 100 (Tex.Civ.App.-Amarillo, writ ref'd., n. r. e.)].
"In Langford v. State, supra [532 S.W.2d 91 (Tex.Cr.App.1976)], this court decided that Article 6701/1-5, V.A.C.S., did not contain an unconstitutional delegation of legislative powers to the Texas Department of Public Safety in allowing said department to approve methods of breath testing nor in authorizing said department to ascertain the qualifications and *481 competence of individuals who conduct breath testing. See and cf. Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App. 1969)."
561 S.W.2d at 514-15.
Article 6701d, Sec. 169B, supra, provides that the State Highway and Public Transportation Commission may establish maximum prima facie speed limits of not more than 70 miles per hour when it finds:
"1. That a severe shortage of motor fuel or other petroleum products exists; and
"2. That the shortage was caused by war, national emergency or other circumstances; and
"3. That a reduction of speed limits will serve to foster conservation purposes and safety; or
"4. The failure to alter state speed limits will prevent the state from receiving revenue for highway purposes from the federal government."
The section further provides that upon the entry of such an order it shall be filed with the Governor's Office. After an independent review, the Governor issues a proclamation stating whether or not the necessary facts exist to support the issuance of the Commission's order. The section also provides that any change in the maximum speed limits made under this section remain effective for a maximum of 120 days unless such conditions are found to continue to exist, in which case the order may be continued in effect for additional 120-day periods.
Thus, Art. 6701d, Sec. 169B, contains standards that limit the discretion of the Commission in its exercise of these delegated powers. These standards are necessary to effect the Legislature's purpose and are capable of reasonable application. We hold that Art. 6701d, Sec. 169B, supra, is not an unconstitutional delegation of the Legislature's authority.
Appellant also contends that the subject of Art. 6701d, Sec. 169B, was not properly set out in the title of the enacting bill, and is thus unconstitutional under Art. 3, Sec. 35 of the Texas Constitution. We have reviewed this contention and find it without merit.
Appellant finally contends that the evidence was insufficient to support the conviction.
The State's case consisted of the testimony of A. F. Hall, a Texas Highway Patrolman. Officer Hall first testified that he was "working radar" on Interstate 10 near Flatonia. He then stated that "the [appellant] was checked by radar at a speed of 67 miles per hour" and that he gave the appellant a ticket for speeding.
Appellant objected to the officer's next answer, which asserted that it was his personal belief that the appellant was speeding. The trial court sustained this objection. The officer then testified without objection that the appellant was not driving at a speed that was reasonable and prudent under the conditions.
The State rested its case after the above evidence. The appellant called no witnesses regarding the facts of the offense.
Appellant first urges that the State failed to show three essential elements in introducing evidence based on radar monitoring of his speed. He urges that this Court's decision in Wilson v. State, 168 Tex. Cr.R. 439, 328 S.W.2d 311, requires that the State show that (1) the witness was qualified in the use of radar, (2) that the apparatus be accepted as dependable by the profession concerned with that branch of science, and (3) that the particular radar unit be of an accepted type and in good condition.
Subsequent to our decision in Wilson v. State, supra, this Court has held that the officer's testimony that he had been both trained to operate the radar set and test it for accuracy is a sufficient predicate to support admission of radar evidence. Cromer v. State, 374 S.W.2d 884; Gano v. State, 466 S.W.2d 730. Thus, as specifically stated in Cromer, the State is not required to call expert witnesses to establish the accuracy of radar.
*482 In the present case, however, the officer did not testify as to his training and testing of the radar set. We note that his testimony regarding the speed reflected by his radar unit was not objected to by the appellant. Thus, we must decide whether the failure to elicit a proper predicate for his testimony renders the evidence insufficient to support a conviction.
In Romo v. State, 577 S.W.2d 251 (1979), this Court reviewed a similar situation. In Romo, the results of a breathalyzer test had been entered into evidence without any predicate as to the officer's qualifications or the breathalyzer's accuracy. In Romo, as here, no objection was made to the officer's testimony. This Court held that although the State failed to prove the proper predicate for admission of the breathalyzer test results, this error was not preserved for review because of the failure to object.
In the present case, the appellant failed to object to introduction of the radar evidence. Here, as in Romo, the appellant's failure to object at the time the evidence was offered waived any error.
The appellant also urges that the State failed to establish the posted speed at the place of the violation. Appellant maintains that the trial court could not take judicial knowledge of this fact.
In Williams v. State, 146 Tex. Crim. 430, 176 S.W.2d 177 (1943), it was stated:
"A proclamation of the Chief Executive of this State, when duly promulgated and filed, occupies a position comparable to laws regularly passed by the Legislature. That a proclamation by the Governor, of and within itself, is notice is further manifested by the fact that the courts are required to take, and do take, judicial notice of the contents thereof. Missouri, K. & T. R. Co. v. McIlhaney, 60 Tex.Civ. App. 598, 129 S.W. 153, and 20 Am.Jur. 67." See also 23 Tex.Jur.2d, Evidence, Sec. 11.
By minute order No. 69755 passed on March 31, 1975, the State Highway and Public Transportation Commission established the maximum prima facie speed limit in this state at 55 miles per hour. The Governor of Texas issued and placed on file in the office of the Secretary of State Proclamation No. 41-1531 on April 4, 1975, finding that the necessary facts exist to support the issuance of such Commission's order. The date of the alleged offense, June 9, 1975, was within 120 days of April 4, 1975.
The trial court could take judicial notice that the maximum prima facie speed limit in the State of Texas was 55 miles per hour at the time of the appellant's offense.
We hold that the evidence is sufficient to support the conviction.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567361/ | 579 S.W.2d 89 (1979)
TRACE X CHEMICAL, INC., Appellant,
v.
HIGHLAND RESOURCES, INC., et al., Appellees.
No. 78-292.
Supreme Court of Arkansas, In Banc.
April 9, 1979.
E. E. Maglothin, Jr., Fayetteville, for appellant.
Hamilton H. Singleton, Camden, Shackleford, Shackleford & Phillips by Dennis L. Shackleford, El Dorado, for appellees.
HOLT, Justice.
Appellee Highland brought suit alleging that appellant, its lessee, had breached various lease agreements and sought possession and damages for accrued rent. Appellant answered and counterclaimed alleging compliance with the lease agreements and asserted that appellee Highland was the party who had breached the leases. By counterclaim appellant sought damages for improvements made by it to the leased premises and requested that the cause be transferred to a court of law. Appellee Highland filed a motion for summary judgment, stating that there was no issue of fact as to the breach of the leases since both parties had alleged a breach. The chancellor granted Highland's motion, finding that both had alleged breaches and that, based upon those allegations, the lease agreements were terminated. Possession of the property was awarded to appellee Highland with the right to remove appellant's property *90 from the premises. The chancellor transferred the issues of liability and damages to the circuit court for determination. Hence this appeal.
We first consider appellee Highland's motion to dismiss this appeal, asserting that the chancellor's order is not appealable. We hold that the order is appealable since it concluded the parties' rights to possession of the property. See Ark. Hwy. Comm'n. v. Kesnev, 239 Ark. 270, 388 S.W.2d 905 (1965); and Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967). Accordingly, we deny appellees' motion to dismiss.
We next discuss appellant's contention that the court erred in granting a summary judgment and awarding appellee Highland possession of the property. A summary judgment, being an extreme remedy, should only be granted when it is clear there is no issue of fact to be litigated; and, before one is entitled to a summary judgment, it is incumbent upon the movant, here the appellee, to show there is no existence of a fact issue. Robinson v. Rebsamen Ford, Inc., 258 Ark. 935, 530 S.W.2d 660 (1975). The object of a summary judgment is not to try the issue but to determine if there are issues to be tried. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969). If there is any doubt whatever, it should be denied. Southland Ins. v. Northwestern Nat'l. Ins. Co., 255 Ark. 802, 502 S.W.2d 474 (1973).
Here, as noted, appellee Highland alleged, inter alia, that appellant had breached in various ways the lease agreements between them. Appellant denied that allegation and alleged that appellee Highland was the breaching party. Appellees argue that appellant conceded that the leases had been breached in its response to the motion for summary judgment and supporting brief, where it made the statement: "True, there may not be a question that the leases have been breached .... Both..... allege in their pleadings that the leases have been breached..... This fact may not be controverted." We do not agree that this was a concession that no controversy existed; appellant merely recognized the fact that it "might not," which is different from saying that it "does not" exist. Each alleged a different basis of a breach or breaches. The issue was which one breached the leases. An issue is not decided simply because both parties to a lawsuit allege the same conclusion of law. Here, both or either party could fail to meet the required burden of proof to show that the other breached the leases.
Appellant sought in its counterclaim to have the entire case transferred to a court of law. The chancellor, as indicated, after granting Highland possession of the property based upon its motion for summary judgment, transferred the remaining issues of liability and damages to a court of law. Since we hold the motion for summary judgment was incorrectly granted, we are of the view that the entire cause should be transferred to a court of law.
Reversed and remanded.
FOGLEMAN, J., dissents.
FOGLEMAN, Justice, dissenting.
Many years ago, this court was admonished not to reverse a case for an error that is not prejudicial, i. e., does not affect a substantial right, of any party. Ark.Stat. Ann. § 27-1160 (Supp.1977). No citation of authority is necessary to show that we have, on hundreds of occasions, given heed to the admonition. I do not concede that there was any error in the action of the trial court here, but if there was, it was not only harmless, it was innocuous, insignificant and trivial. The reversal in this instance is purely ceremonial and wholly unnecessary.
The trial court transferred the issues of liability and damage to the circuit court. The majority holds that the summary judgment was incorrect and that the entire case should be transferred to a court of law. There really is no difference at all in what the chancery court did and what the majority says should be done.
*91 The trial court held that there had been a breach of the lease contract. It left the question of liability to be determined by the trial court. The question of liability depends entirely upon the answer to the question, "Who breached the contract?" Who says the contract was not breached? Appellant does not; appellees do not; the trial court does not; and this court does not. Beyond the shadow of a doubt, the lease contract has been breached. Each of the parties contended that the lease was terminated by the other's breach. This may be the only thing on which the parties agree, but they certainly agree upon that and there is not one word in their pleadings to indicate that they did not. What was wrong with the chancery court's saying so?
Highland's suit was one in unlawful detainer dressed in declaratory judgment clothing. It alleged that the lease had been breached by appellant and sought possession by mandatory injunction to appellant to remove its property from the leased premises. All the relief sought could have been obtained through an unlawful detainer action, without a mandatory injunction, an equitable remedy granted only when there is no adequate remedy at law and, actually, when there is no other remedy in equity.
Text writers have spoken clearly on the subject of mandatory injunction. See 43 C.J.S. Injunctions § 8, p. 751, where we find:
* * * While it has been said that the granting of mandatory injunctions is governed by the same rules as the granting of preventative injunctions, mandatory injunctions are viewed as harsh remedial process, and are not favored by the courts.
Indeed, mandatory injunctions are rarely granted; and it has been noted that the courts are more reluctant to grant a mandatory injunction than a prohibitory one, that the requirements for the issuance of a mandatory injunction are stricter than for issuance of a prohibitory one, and that generally an injunction will not lie except in prohibitory form.
* * * * * *
While mandatory injunctive relief may be appropriate in a clear case, and, indeed, will not issue except on the clearest equitable grounds, even if the right is clear, it does not follow that a mandatory injunction must be granted. In fact, such relief will be issued only in cases of extreme, great, or urgent necessity, or compelling circumstances, where the right invaded is material and substantial, and where adequate redress at law is not afforded, or where the injury is not compensable in damages.
And see, 42 Am.Jur.2d 751, Injunctions § 20, where it is said:
* * * The basic principles upon which the mandatory and prohibitory injunctions are granted do not differ materially, although the courts are perhaps more reluctant to interpose the mandatory injunction. It has been said that relief by mandatory injunction is not regarded with judicial favor and is used only with caution and in cases of great necessity. A mandatory injunction, it is said, should be granted only under compelling circumstances. When the court is thus asked to undo something that has been done, it must, for obvious reasons, act in a careful and conservative manner and grant the relief only in situations which so clearly call for it as to make its refusal work a real and serious hardship and injustice; otherwise, it may inflict on the defendant the very irreparable injury which it is alleged he has done or is about to do against the plaintiff.
The case should never have been in the equity court.
Then the court held that Highland was entitled to possession. All parties agree by their pleadings that Highland is entitled to possession. Highland brought the suit seeking a mandatory injunction as the instrument for obtaining possession by removing appellant's property from the premises. Appellant alleges that there has been a breach of the covenant for quiet enjoyment by Highland. It also alleges that it has been constructively evicted by the actions *92 of Highland. Perhaps appellant has used two means of saying the same thing. In any event, retention of possession is inconsistent with the allegations of appellant's pleadings and appellant does not allege that it is in possession. Appellant seeks only to be relieved of its obligations under the lease and to recover damages for breach of the covenant of quiet enjoyment and for constructive eviction.
The concepts of constructive eviction and breach of the covenant for quiet enjoyment are very closely related, if not just different names for the same concept. An excellent discussion of the relationship between the covenant of quiet enjoyment and constructive eviction can be found in Reste Realty Corp. v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969). Portions of that discussion follow:
The great weight of authority throughout the country is to the effect that ordinarily a covenant of quiet enjoyment is implied in a lease [Citations omitted.]. Where there is such a covenant, whether express or implied, and it is breached substantially by the landlord, the courts have applied the doctrine of constructive eviction as a remedy for the tenant. Under this rule any act or omission of the landlord or of anyone who acts under authority or legal right from the landlord, or of someone having a superior title to that of the landlord, which renders the premises substantially unsuitable for the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises, is a breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant.
Another discussion of the relationship between the two principles can be found in Petroleum Collections, Inc. v. Swords, 48 Cal. App. 3d 841, 122 Cal. Rptr. 114 (1975). That court was faced with the appeal of the action by the lessor's assignee against the lessee for rent due and owing. The trial court held for the lessee and the court of appeals held that, although the covenant of quiet enjoyment had been breached by the lessor's removing a large advertising sign from the premises without adequate replacement, the lessee was not relieved of the obligation to pay rent because he and his sublessee remained in possession of the premises after removal of the sign. From the opinion:
It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. .
* * * * * *
If, on the other hand, the tenant elects to surrender possession of the premises, a constructive eviction occurs at that time and, as in the case of an actual eviction, the tenant is relieved of his obligation to pay any rent which accrues thereafter. It is this doctrine, known as the doctrine of constructive eviction, ". . which expanded the traditional `covenant of quiet enjoyment' from simply a guarantee of the tenant's possession of the premises [citations] to a protection of his `beneficial enjoyment' of the premises ...."
Stated in another manner, the covenant of quiet enjoyment is not broken until there has been an actual or constructive eviction; [citations omitted.] an actual eviction takes place when the tenant is physically dispossessed of the property; a constructive eviction occurs when the act of molestation merely affects the beneficial use of the property, causing the tenant to vacate the premises. If the tenant is evicted or if he surrenders possession of the premises within a reasonable time after the act of molestation has occurred, he is relieved of his obligation to pay rent accruing as of the date he surrendered; he also may sue for his damages or plead damages by way of offset in an action brought against him by the landlord to recover any unpaid rent that accrued prior to the surrender of the premises. [Citations omitted.] If, in the case of an interference with the tenant's beneficial enjoyment of the premises, the tenant does not surrender the premises within a reasonable time after the date of the interference, he is *93 deemed to have waived his right to abandon; what constitutes a reasonable period of time is a question of fact to be determined by the trier of fact after considering all of the circumstances. [Citations omitted.] [Emphasis mine.]
Arkansas cases on the subject are sparse, but in harmony with the majority view expressed above. In Dupree v. Worthen Bank & Trust Co., 260 Ark. 673, 543 S.W.2d 465, we recognized that, in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, citing Petroleum Collections, Inc. v. Swords, supra. In Smiley v. Thomas, 220 Ark. 116, 246 S.W.2d 419, the court cited an earlier case which apparently recognized the covenant for the quiet enjoyment of land. Although the Smiley case was concerned with the alleged breach of the covenant of warranty of title, the opinion contains the following quote:
* * * This court held in Gibbons v. Moore, 98 Ark. 501, 136 S.W. 937 (Headnote 3): "A covenant for quiet enjoyment of land is a covenant which runs with the land, for breaches whereof the grantee, his heirs or assigns, may sue as if it were expressly inserted in the conveyance." (Headnote 4) "SameWhen Broken.A covenant for quiet enjoyment * * * was broken where a title paramount to that of the grantee's was held valid in a suit against them to which their grantor was a party", . . ..
Although not explicit in the Gibbons opinion, it appears that the court felt that eviction from the premises was a necessary element of a breach of the covenant for quiet enjoyment, as evidenced by the following language: "Appellee having been brought into a suit against appellants on their motion as a voucher, in which a title paramount to theirs received from said appellee was held valid, and they were evicted by judgment therein from said lands, the breach of the covenant of quiet enjoyment and warranty created by the statute was established."
It is well established that there can be no constructive eviction if the tenant continues in possession. Black's Law Dictionary, De Luxe 4th Edition, contains the following definition of constructive eviction:
Any disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy in whole or in substantial part for the purposes for which they were leased amounts to a constructive eviction, the tenant so elects and surrenders his possession. [Emphasis mine.] [Citing Murray v. Merchants' Southwest Transfer & Storage Co., 98 Okla. 270, 255 [225] P. 547, 549.]
From 52 C.J.S. Landlord 445, p. 289, there is this:
An eviction may be constructive in character, and a constructive eviction is some act of a permanent character which, although not amounting to an actual eviction, is done by the landlord or someone under his authority with the intention and effect of depriving the tenant of the beneficial enjoyment of the demised premises, or some part thereof, or materially obstructing or interfering with such enjoyment, and to which the tenant yields by abandoning possession within a reasonable time. It involves a surrender of possession by the tenant on justifiable grounds rather than a deprivation of actual occupancy. A claim of constructive eviction is only an election to terminate a lease because of a breach thereof. [Emphasis mine.]
Proceeding to 52 C.J.S. Landlord & Tenant § 447b, p. 293,1 read:
In order to constitute an eviction by a landlord, the tenant must cease to retain possession of the premises, and either he must be dispossessed or he must abandon the premises because of the landlord's acts or omissions; there is no eviction where he continues in possession. [Emphasis mine.]
And further, at 52 C.J.S. Landlord & Tenant § 457, p. 306, I find:
Constructive eviction of a tenant by his landlord requires that the tenant abandon, vacate, or surrender possession of the premises. Accordingly, it is held that *94 there is no constructive eviction where the tenant continues in possession, however much he may be disturbed in the beneficial enjoyment of the premises; nor is there a constructive eviction where the tenant is conducting litigation and seeking to remain in possession of the premises. [Emphasis mine.]
And from 49 Am.Jur.2d 318, Landlord & Tenant § 303, the following:
Abandonment of premises by the tenant within a reasonable time after the wrongful act of the landlord is essential to enable the tenant to claim a constructive eviction based upon that wrongful act, or to defend against liability for rent, on account of such act. However much the tenant may be disturbed in the beneficial enjoyment of the premises by the landlord's wrongful act, there is no constructive eviction if he continues in possession of the whole of the premises. Possession must be given up by the tenant in consequence of the landlord's acts, and those acts must be such as to justify the tenant in doing so. [Emphasis mine.]
It seems quite obvious from a reading of these passages that retention of the possession of leased premises is wholly inconsistent with a claim of constructive eviction. In Lori, Limited v. Wolfe, 85 Cal. App. 2d 54, 192 P.2d 112 (1948), the lessor sought to have a lease reformed in order to prevent assignment or subletting. The lessee filed a cross-complaint, praying for declaratory judgment, an injunction and damages. The plaintiff appealed from an unfavorable judgment. The trial court found that the waiver of a right the appellant had under the lease relating to the sale of intoxicating beverages on the premises constituted a constructive eviction. The court of appeals disagreed. From the opinion:
* * * In order that there be a constructive eviction it is essential that the tenant should vacate the property. There is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment. Veysey v. Moriyama, 184 Cal. 802, 805, 195 P. 662, 20 A.L.R. 1363; Tregoning v. Reynolds, 136 Cal. App. 154, 157, 28 P.2d 79. [Emphasis mine.]
In Steinberg v. Medical Equipment Rental Services, Inc., 505 S.W.2d 692 (Tex.Civ. App.1974), that court set out the four essential elements of constructive eviction. They are:
(1) an intention on the part of the landlord that the tenant shall no longer enjoy the premises, which intention may be inferred from the circumstances; (2) a material act by the landlord or those acting for him or with his permission that substantially interferes with the use and enjoyment of the premises for the purpose for which they are let; (3) the act must permanently deprive the tenant of the use and enjoyment of the premises; (4) the tenant must abandon the premises within a reasonable time after the commission of the act. [Emphasis mine.]
And finally from Reste Realty Corp. v. Cooper, supra, in which the relationship between the covenant for quiet enjoyment and constructive eviction was first pointed out herein, the court said:
* * * The general rule is, of course, that a tenant's right to claim a constructive eviction will be lost if he does not vacate the premises within a reasonable time after the right comes into existence. 1 American Law of Property, supra, § 3.51, p. 282. What constitutes a reasonable time depends upon the circumstances of each case. [Emphasis mine.]
Although dealing with the concept of warranty of title under Texas law in Elliott v. Elliott, 252 Ark. 966, 482 S.W.2d 123, we also dealt with constructive eviction, saying:
* * * We have concluded that they correctly contend that before there can be any recovery for breach of warranty [of title] under Texas law [the opinion also held that the law was the same in Arkansas, citing hammers v. American Southern Trust Co., 172 Ark. 1013, 291 S.W. 437], there must have been an eviction, a surrender of possession to the one asserting a paramount title or a purchase *95 of paramount title asserted, but that one who remains in possession and successfully defends his title is not evicted, actually or constructively.
For other cases supporting the proposition that a tenant must abandon or vacate the leased premises before he can claim constructive eviction, see generally: Annot., 91 A.L.R. 2d 638; Indiana State Highway Com'n. v. Pappas, 349 N.E.2d 808 (Ind.App. 1976); Lippman v. Harrell, 39 Ill.App.3d 308, 349 N.E.2d 511 (1976); Thompson v. Shoemaker, 7 N.C.App. 687, 173 S.E.2d 627 (1970); Gillette v. Anderson, 4 Ill.App.3d 838, 282 N.E.2d 149 (1972); Meerbaum v. Crepes D'Asie, Inc., 85 Misc. 2d 345, 378 N.Y. S.2d 874 (1975); Brine v. Bergstrom, 4 Wash.App. 288, 480 P.2d 783 (1971); McNabb v. Taylor Oil Field Rental Co., 428 S.W.2d 714 (Tex.Civ.App.1968); Sewell v. Hukill, 138 Mont. 242, 356 P.2d 39 (1960); Richards v. Dodge, 150 So. 2d 477 (Fla.App. 1963); Venters v. Reynolds, 354 S.W.2d 521 (Ky.1961); McNally v. Moser, 210 Md. 127, 122 A.2d 555 (1956); Maki v. Nikula, 224 Or. 180, 355 P.2d 770 (1960); Candell v. Western Federal Savings & Loan Association of Denver, 156 Colo. 552, 400 P.2d 909 (1965); Yaffe v. American Fixture, Inc., 345 S.W.2d 195 (Mo.1961); E. B. Jones Motor Co. v. Niedringhaus, 323 S.W.2d 31 (Mo. App.1959); Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963); Weiss v. I. Zapinsky, Inc., 65 N.J.Super. 351, 167 A.2d 802 (1961).
So, from either party's view, Highland was entitled to possession. Why should the court not have said so? What issue remained as to possession?
A partial summary judgment specifying the facts not in issue is permissible when there is no material justiciable issue as to those particular facts on which the judgment is rendered or order made. Ark.Stat. Ann. § 29-211(d) (Repl.1962). Actually we have held that it is error for the trial court to fail to specify facts that appear to be without controversy. Young v. Dodson, 239 Ark. 143, 388 S.W.2d 94. The summary judgment was partial and covered only those matters as to which there can be no issue, i. e., that the lease had been breached and Highland is entitled to possession. The remaining issues, liability and damages, were transferred to law. What error did the trial court commit? I submit, none. What substantial right of any party has been affected? Again, I say none. In substance, if not in form, the chancellor did what we have said he should do.
I would affirm the decree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567369/ | 579 S.W.2d 280 (1979)
AMOCO PRODUCTION COMPANY, Appellant,
v.
The FIRST BAPTIST CHURCH OF PYOTE et al., Appellees.
No. 6748.
Court of Civil Appeals of Texas, El Paso.
February 14, 1979.
Rehearing Denied April 4, 1979.
*281 Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Richard E. Booth, Midland, for appellant.
Kerr, Fitz-Gerald & Kerr, Harris E. Kerr, Wm. Monroe Kerr, Midland, for appellees.
*282 OPINION
OSBORN, Justice.
This case involves the issue of an implied covenant to market natural gas at fair market value under a lease which provides for a royalty based upon the amount realized from the sale of such gas. The trial Court awarded recovery for a sum based upon the price paid by other purchasers of gas from the same well. We affirm that part of the judgment, but reverse and render as to the part which requires that future royalties be based upon the price paid in the future by one specific purchaser of gas from the well in question.
FACTS
The dispute between these parties concerns eighteen leases covering small tracts of land in the Townsite of Pyote, in Section 100, Block F, G & MMB & A Survey, Ward County, Texas. The Appellant owns oil and gas leases covering these tracts, each of which provides that on gas sold at the wells, the royalty shall be 1/8th of the amount realized from such sale. There is no dispute in this case concerning the fact that the gas is sold at the well.
The several owners of the oil and gas leasehold estates in tracts of land in Section 100 pooled the same to form the Caprito 100 Unit, containing 640 acres of land. The Appellant's leases, as pooled, cover 17.14240 percent of the unit. In 1973, the working interest owners drilled a well on this Section, and it was completed as a dual producer from both the Devonian and Ellenberger Formations. The working interest owners have been selling gas to one of four different purchasers, each of whom has its own gas pipeline connected to the well. Under the various gas purchase agreements with the different working interest owners, the total production from the well is sold approximately fifty-three percent to Lone Star Gas Company, twenty percent to Pioneer Natural Gas Company, fourteen percent to Delhi Gas Pipeline Corporation, and thirteen percent to Natural Gas Pipeline Company. All gas production attributable to the various interests of the Appellees has been sold to Pioneer Natural Gas Company and Odessa Natural Gasoline Company, who has acquired its rights under Pioneer.
Natural Gas Pipeline Company transports its gas interstate and the price paid under its contracts are subject to Federal Power Commission regulations, including price regulations. Both Lone Star and Delhi have contracts with their working interest owners which provide for an annual price redetermination provision to reflect current prices of gas each year. The prices they paid from initial production up to the time of trial were as follows:
Lone Star Delhi
Price Price
Per MCF Per MCF
.625 Dec. 73 to July 74 .80 Oct. 73 to Oct. 74
1.30 July 74 to July 75 1.30 Oct. 74 to Oct. 75
1.90 July 75 to July 76 1.90 Oct. 75 to Oct. 76
1.95 July 756 thru June 77 1.95 Oct. 76 thru June 77
By reason of production from other wells in neighboring sections, Amoco and Pioneer entered into a gas purchase contract in November, 1969 covering leases then owned by Amoco in nineteen sections of land in Ward County. This twenty-year gas purchase contract provided a price of 17¢ per MCF through December 31, 1974, and basically a 1¢ acceleration every five years of the contract. It also provided for the release of the dedication of acreage not assigned to a producing well as of December 31, 1974. There was no requirement for additional or subsequent dedication to the contract of other leases. In October, 1970, Amoco and Pioneer amended the 1969 gas contract and *283 substituted a new list covering Defendant's leases in twelve sections of land, including six of the eighteen leases involved in this case. As of June 1, 1975, Amoco entered into a supplemental agreement with Pioneer and Odessa by which Amoco dedicated additional leases to the 1969 contract, including the other twelve leases involved in this litigation. In return for the dedication of these additional leases, Pioneer and Odessa agreed that the gas from the Caprito 100 Unit would be increased to 70¢ per MCF retroactive to August 1, 1974, and that beginning on August 1, 1975 and each year thereafter, there would be a 1¢ per MCF acceleration.[1] Thus, by way of comparison, the Appellees were paid 17¢ per MCF for gas produced prior to August, 1974, 70¢ per MCF for the next twelve months, 71¢ per MCF for the next twelve months, and 72¢ per MCF for the remaining months through June, 1977.
FINDINGS AND CONCLUSIONS
The trial Court filed extensive findings of fact and conclusions of law, and determined that Amoco breached no duty with respect to the payment of royalty under the six leases where the gas was dedicated to the Pioneer contract under the 1970 amendment. There is no complaint about that part of the trial Court's decision. The trial Court further held that Amoco breached its legal duty with respect to the lessors under the twelve leases where gas was dedicated to the Pioneer contract by the 1975 supplement, and further that those parties were entitled to be paid the difference between the amounts which they were paid and the amounts which Lone Star was paying for gas purchased from this well during corresponding periods. In addition, the trial Court ordered that future payments shall be based upon the price paid by Lone Star Gas Company for gas produced from this particular well.
The Appellant presents twenty-three points of error. Basically, the attack is upon four different findings made by the trial Court, and the decision in the case necessarily turns upon those particular findings which are as follows:
"19.
"The market prices of gas produced each month from the Section 100 Well are equal in amount to the prices paid each month by Lone Star Gas Company to the working interest owners in the Section 100 Unit from which Lone Star Gas Company made its purchases, and after June, 1977, the prices to be paid by Lone Star Gas Company to said working interest owners for gas purchased from the well will continue to reflect the then current market value of gas produced from the existing Section 100 Well. * * *
* * * * * *
"22.
"Defendant, in selling gas with respect to which it owes royalty under and pursuant to the terms of the leases described in subparagraphs (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) and (r) of Paragraph 13 hereof at less than the current fair market value thereof, and in dedicating said leases on June 1, 1975, to its November 18, 1969 Gas Purchase Contract with Pioneer Natural Gas Company as amended and supplemented as herein above set forth, breached the legal duties which it at all times pertinent has owed to those Plaintiffs in respect of the leases referred to in subparagraphs (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) and (r) of Paragraph 13 of hereof.
* * * * * *
"24.
"The language of the Oil and Gas Leases and the language of the Defendant's Division Orders signed by Plaintiffs, or some of them, do not change or alleviate Defendant's duties owed by it to its royalty owners in this suit in respect of the marketing of gas at obtainable market prices in which such royalty owners share *284 in the whole benefit obtained by Defendant.
"25.
"The remedy of Plaintiffs claiming under the leases described in subparagraphs (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) and (r) of Paragraph 13 hereof for the period from first production through June, 1977, is to be paid their proportionate part of the difference in price per MCF of gas for each month of production between that paid by Pioneer Natural Gas Company and Odessa Natural Gasoline Company, on the one hand, and Lone Star Gas Company, on the other, less 7.5% thereof, representing production and severance taxes. In respect of production after June, 1977, Defendant should be ordered to pay Plaintiffs royalty as though the gas had been sold to Lone Star Gas Company under the contracts of Lone Star Gas Company for gas produced from the Section 100 Well."
MARKETING DUTY
First and foremost is the question of whether Amoco breached any legal duty owed to these Appellees when, some twenty months after the Caprito 100 Well began producing gas, it committed and dedicated such gas to long-term contract on terms approximately one-half the amount at which gas was then being sold to other purchasers from the same well and with no right for future price redetermination based on market increases, and while doing so obtained for itself extra benefits in respect to other properties in which these Appellees had no interest.
In 1976, this Court in Pritchett v. Forest Oil Corporation, 535 S.W.2d 708 (writ ref'd n.r.e.), based upon the facts set forth in that opinion, concluded that a lessee was not in the position of a trustee with regard to a pooled royalty owner and did not have any fiduciary obligation to such royalty owner. But other cases have clearly recognized a duty, particularly with regard to implied covenants, for a lessee to act fairly and in good faith with regard to the interest of a lessor of a mineral interest.
In McCarter v. Ransom, 473 S.W.2d 235 (Tex.Civ.App.Corpus Christi 1971, no writ), the Court said:
"The doctrine of implied covenants applies with respect to oil, gas and mineral leases. Implied obligations are as much a part of the lease and are just as binding as though they were expressed. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684 (1959); Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039 (1928). Implied covenants are justified on the ground of necessity and fair dealing. W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929).
* * * * * *
"In Expando Production Company v. Marshall, 407 S.W.2d 254 (Tex.Civ.App., Ft. Worth, 1966, wr. ref. n.r.e.), the Court said:
"`There is no doubt but what there is a fiduciary obligation on the part of the lessee to exercise the utmost good faith toward the lessor in exercising the power granted under a pooling provision. * * *'
"For other authorities holding that the lessee, in creating pooled units under a pooling provision in an oil, gas and mineral lease, is subject to the implied obligation that he act fairly, in good faith and with due regard for the interest of the lessor, see Banks v. Mecom, 410 S.W.2d 300 (Tex.Civ.App., Eastland, 1966, wr. ref. n.r.e.); Tiller v. Fields, 301 S.W.2d 185 (Tex.Civ.App., Texarkana, 1957, n.w. h.)."
In 1977, the Court in Elliott v. Davis, 553 S.W.2d 223 (Tex.Civ.App.Amarillo, writ ref'd n.r.e.), noted that there is an implied requirement that the lessee exercise good faith in making the determination to pool. That opinion relies upon the standard of good faith described in Kuntz, The Law of Oil and Gas, Vol. 4, Sec. 48.3 at 219 (1972), as follows:
"* * * Although it has been said that the lessee has a fiduciary obligation *285 in the exercise of the pooling power, it is submitted that the lessee is not a fiduciary and that standards applied to fiduciaries are entirely too strict. This is so because the lessee has not undertaken to manage and develop the property for the sole benefit of the lessor. The lessee has substantial interests that must be taken into account, and he should not be required to subordinate his own interests entirely to the interests of the lessor. Since his interests frequently conflict with those of his lessor, however, he must exercise the power in fairness and in good faith, taking into account the interests of both the lessor and lessee."
That decision was followed in Amoco Production Company v. Underwood, 558 S.W.2d 509 (Tex.Civ.App.Eastland 1977, writ ref'd n.r.e.), where the Court affirmed a judgment based upon a jury finding that the designation of the pooled unit "`was not made in good faith.'"
Those cases deal only with the pooling rights of the lessee and do not pass upon the marketing obligation of a lessee. Obviously, there is an obligation to market the product once it is discovered. Hemingway, The Law of Oil and Gas, Sec. 8.9(C) (1971). In this case, Amoco met that obligation by entering into a contract to sell the gas produced from the Caprito 100 Unit. But the most basic issue is whether there is a duty or implied covenant to market at any particular price, particularly when the lease provides for a royalty based on the "amount realized from such sale." We conclude there is an implied covenant to exercise good faith in the marketing of gas, and particularly so where the interests of the lessor and lessee are not identical. Professor Martin, in a recent article entitled "A Modern Look at Implied Covenants to Explore, Develop and Market Under Mineral Leases," says:
"* * * there is considerable authority that there is a duty owed by the lessee to obtain the best price possible for the gas, a duty which can arise either under a `market value' or a `proceeds' royalty clause. * * *"
Twenty-Seventh Annual Institute on Oil and Gas Law and Taxation (1976) 177 at 191.
In his text, Merrill, Covenants Implied in Oil and Gas Leases, 1940, the author on pages 212-214 says:
"* * * The concept of diligence in marketing should include the duty to realize the highest price obtainable by the exercise of reasonable effort. * * * [J]ustice toward the lessor would seem to require that he should receive the same return as those who had leased to other operators * * *. * * * [H]e is bound to get the best price he can."
The same pronouncement of this duty appears in Siefkin, "Rights of Lessor and Lessee with Respect to Sale of Gas and as to Gas Royalty Provisions," Fourth Annual Institute on Oil and Gas Law and Taxation (1953). In that article, the author on page 182 wrote:
"At all events, it is well settled that the lessee is impliedly obligated to `market' to sell or otherwise utilizethe production obtainable from a commercial well. Probably this requires the lessee to secure the highest price reasonably obtainable therefor * * *."
Some of the historical development of implied covenants is set forth in Summers, The Law of Oil & Gas, Vol. 2, Sec. 416 at 641 (1959). He says:
"The development of standards of diligence for measuring the performance of the oil and gas lessee's express and implied covenants arising from the policy of development, that is, covenants to test the land, to drill additional wells on discovery, to protect the land from drainage, and to market the product, has been an evolutionary process. These standards, their value for the purposes for which they were created, and their true meaning are perhaps best understood by tracing their origin and development through the decisions of the courts.
"* * * Justice Van Devanter, in Brewster v. Lanyon Zinc Company said: `Whatever in the circumstances, would be reasonably expected of an operator of *286 ordinary prudence, having regard to the interests of both the lessor and his lessee, is what is required.' * * *"
The marketing covenant is also discussed in Williams and Meyers, Oil and Gas Law, Vol. 5, Sec. 856.3 (1977). This text states:
"* * * The greatest possible leeway should be indulged the lessee in his decisions about marketing gas, assuming no conflict of interest between lessor and lessee. Ordinarily, the interests of the lessor and lessee will coincide; the lessee will have everything to gain and nothing to lose by selling the product. Where the interests of the two diverge and the lessee lacks incentive to market gas, closer supervision of his business judgment will be necessary."
As noted in footnote 7 on page 410.3 of that text, where the interests of the lessee and lessor do not coincide, the lessee must be held to a stricter standard.
In Le Cuno Oil Company v. Smith, 306 S.W.2d 190 (Tex.Civ.App.Texarkana 1957, writ ref'd n.r.e.), cert. denied, 356 U.S. 974, 78 S. Ct. 1137, 2 L. Ed. 2d 1147, Chief Justice Chaddick considered the issue of marketing in a case where division orders provided for payment to the royalty owners based upon the price "received at the wells." In deciding this issue, he said:
"* * * It is in evidence that LeCuno took delivery of the royalty gas involved at the wellhead, ran it through its processing plant and delivered it to certain interstate gas transmission companies under contracts of sale which appellees had no part in making at a price agreed upon between LeCuno and the transmission companies. Such sales to the transmission pipe lines were bona fide arm's length transactions as between LeCuno and the transmission lines so far as this record reveals. Under the contractual relationship described above, LeCuno's division orders requiring it to account to the appellees for their royalty gas on the basis of `the price received at the wells by LeCuno' would require that LeCuno exercise the highest good faith in any contract it entered disposing of the royalty owners' gas."
Although the Court did not address the issue of the duty involved in marketing gas in Livingston Oil Corporation v. Waggoner, 273 S.W. 903 (Tex.Civ.App.Amarillo 1925, no writ), it did recognize the right of a lessor to receive a royalty on gas sold based upon the reasonable market value rather than the price at which the lessee had contracted to sell the gas. And in Harding v. Cameron, 220 F. Supp. 466 (W.D.Okl.1963), the Court recognized the existence of an implied duty or obligation imposed by law which requires a prudent operator, having due regard for the interest of both the lessor and lessee, "to obtain a market for gas at the best price obtainable." In Greenshields v. Warren Petroleum Corporation, 248 F.2d 61 (10th Cir. 1957), cert. denied, 355 U.S. 907, 78 S. Ct. 334, 2 L. Ed. 2d 262, the Court concluded that good faith must be explored by consideration of the circumstances then existing to see if more favorable terms could be obtained for the gas produced.
In Professor Merrill's volume on implied covenants, the 1964 supplement at page 67 contains an interesting comment with regard to a case which had a gas royalty clause providing for payment based on "net proceeds derived from the sale of gas at the mouth of the well." The author said:
"In Phillips Petr. Co. v. Johnson, 155 F.2d 185 (5th Cir. 1946), the court said of a stipulation for gas royalty measured by net proceeds at the mouth of the well, `This lessor did not consent to be left to the uncertainties of "fair values", or even "market price", as to the gas, but was willing to take one-eighth of what the lessee sold it for, relying on the lessee's self-interest to secure a good sale.' This statement seems incorrect, if it is meant that the lessee was not bound, under such a provision, to exercise reasonable diligence to get the best available price. The same is true of the court's statement that the lessee is `accountable for the actual net proceeds only, whether the residue gas was worth more or less.'"
*287 In this case, Amoco by dedicating additional leases, including those of the Appellees herein, in June, 1975, obtained an increased price for gas already dedicated under the prior contract from 17¢ to 70¢ per MCF. This was obviously a substantial benefit for Amoco and its royalty owners under the previously dedicated leases. But it also meant that as to twelve of the leases involved in this case, the royalty owners would receive a payment for gas which was approximately ½ of the amount soon to be paid by Lone Star and Delhi, and with a very limited provision for future acceleration. This was not a substantial benefit to them as compared to other royalty owners whose gas was soon to be purchased by Lone Star and Delhi for $1.30, $1.90 and $1.95 per MCF.
Having concluded that Amoco had an implied covenant or duty to act in good faith when selling the gas of its royalty owners, we overrule Appellant's points of error asserting it had no such obligation by reason of the lease provision providing for payment of royalty based upon the proceeds realized from the sale of gas.
BREACH OF DUTY
We next turn to the issue of whether the evidence supports the trial Court's finding of a breach of the legal duty owed by Amoco to its royalty owners. Only one witness, Tom Johnson, testified in this case. The record does contain many exhibits relative to interest ownership, gas sales agreements, and a recapitulation of prices paid by each of the four purchasers of gas since the initial production in 1973. At no time did Mr. Johnson express an opinion as to the fair market value of gas in Ward County, or from a particular field, or even from this particular well. Nevertheless, his testimony and the exhibit with the recapitulation of prices paid for gas purchased show without dispute what was being paid at various times for gas from this particular well by one who purchased under federal regulations, one who purchased under a long-term contract, and those who purchased with annual redetermination clauses.
Market value of gas is to be determined by sales of gas comparable in time, quality and availability of marketing outlets. Texas Oil & Gas Corporation v. Vela, 429 S.W.2d 866 (Tex.1968). This is usually established by opinions from expert witnesses who have evaluated gas sales in a given field and arrived at a price which they consider to represent fair market value at a given time. See Butler v. Exxon Corporation, 559 S.W.2d 410 (Tex.Civ.App.El Paso 1977, writ ref'd n. r. e.); Exxon Corporation v. Middleton, 571 S.W.2d 349 (Tex. Civ.App.Houston [14th Dist.] 1978, writ pending); Exxon Corporation v. Jefferson Land Company, 573 S.W.2d 829 (Tex.Civ. App.Beaumont 1978, writ pending).
But that is not the exclusive manner of establishing market value. Professor Merrill, on page 213 of his book, notes that:
"While the highest price paid by any purchaser in the area is not necessarily the highest obtainable by the exercise of reasonable effort on the part of the particular lessee, it certainly is pertinent evidence."
We believe that which others pay for the same gas from the same well under an annual price redetermination clause is strong evidence of market value.[2] In the Vela case, the Court noted that the record showed the price paid by other purchasers in comparable sales, and concluded that such evidence supported the finding of the trial Court as to market value. In this case, we have evidence of sales of gas comparable in time, quality and availability of marketing outlets. Those sales prices become almost conclusive, particularly when there is no evidence to the contrary. Hemingway, supra, Sec. 7.4(C) at 319 (1971). We hold the evidence is sufficient to establish the trial Court's findings as to fair market value of these royalty owners' gas during the years in dispute. Points of error asserting to the contrary are overruled.
*288 DIVISION ORDERS
Amoco also asserts that it has no liability for amounts in excess of those paid under the terms of its gas contract with Pioneer and Odessa because of division orders signed by the royalty owners. Each of the Appellees in this case executed a division order which describes the producing unit and contains the following language:
"The following covenants are parts of this instrument and shall be binding on the undersigned, their successors, legal representatives, and assigns:
* * * * * *
"Gas: Settlements for gas shall be based on the net proceeds at the wells, after deducting a fair and reasonable charge for compressing and making it merchantable and for transporting if the gas is sold off the property. Where gas is sold subject to regulation by the Federal Power Commission or other governmental authority, the price applicable to such sale approved by order of such authority shall be used to determine the net proceeds at the wells."
It can be seen that such orders do not really change the basis for calculating royalty payments from the terms of the lease. The lease refers to "the amount realized from such sale" and the division orders refer to "net proceeds at the wells." The division order does not purport to relieve the lessee from its duty to exercise good faith in obtaining market value for gas sold.
The actual purpose to be served by a division order is set forth in Brown, The Law of Oil and Gas Leases, (2nd ed. 1973) in Section 316.02 on pages 16-86, as follows:
"* * * the main purpose of the typical division order is to protect the purchaser of products produced on a lease in a division of the proceeds, paid by him, among those entitled to share in such proceeds, namely, the lessee and the royalty owners. It was never intended to afford a lessee the opportunity to amend the lease, relieve himself of lease obligations, and secure advantages over the lessor which he could not have asserted under the provisions of the lease."
Professor Merrill treats this issue very realistically when he says:
"* * * the purposes for which the [division] order is executed and the type of economic duress which prescribes it repel the implication that it is intended to affect the obligations of the operator to the royalty owner. The better reasoned decisions are in accordance with this view, and hence the mere execution of a division order, or the acceptance of payments in accordance therewith from the purchaser, ought not to preclude the royalty owner from asserting a breach of implied obligation against the operator."
Merrill, supra, 1964 Supp., Sec. 209A.
If, as the Court said in the Le Cuno case, the division orders which provide for payment based on the price received at the wells require the exercise of the highest good faith, the original obligation has not changed and the division orders do not diminish the duty owed to these royalty owners. And in this connection it must be noted that these division orders are with the lessee, Amoco, and not a third party purchaser. Thus we conclude that Le Cuno controls as to the facts in this case. Those points of error asserting to the contrary are overruled.
FUTURE PAYMENTS
As set forth in finding No. 25, Amoco was ordered to pay royalty for gas produced after June, 1977 based upon the price at which Lone Star purchased gas from the well after that date. The judgment ordered future payments based on that standard. We conclude this was error.
First, these royalty payments are made monthly and the market can and does fluctuate at something other than annual periods. In addition, purchases by one individual buyer cannot be conclusive as to market price. Normally, market price is based upon a comparison of several sales of a given commodity at a given time and place. Generally, it is not tied exclusively to one particular sale. We recognize the *289 question is a close one where there are several purchasers of gas from the same well with annual redetermination clauses. Nevertheless, we reverse that part of the judgment as to payments for gas sold after June, 1977, and order that those payments be made based upon market value at the time of sale. Obviously, the purchase price paid by Lone Star may be the best evidence of the market value, but it is not conclusive. We sustain Appellant's Point of Error No. 13.
The judgment of the trial Court is affirmed, except as to the provision for payments of gas after June, 1977, and that part of the judgment is reversed and rendered so as to provide for such payments based upon market value of the gas sold at the time and place of sale.
PRESLAR, Chief Justice, dissenting.
I respectfully dissent.
This is an appeal from a judgment for the Plaintiffs to recover alleged deficiencies and royalty payments for gas produced under oil and gas leases providing for payment of a designated portion of the "proceeds" of the sale of gas. The trial Court, sitting without a jury, denied recovery for some Plaintiffs (who do not appeal) and allowed recovery by others, and the Defendant appeals that portion of the judgment. I would reverse and render the portion of the judgment appealed from.
Appellees brought this suit alleging that this is a suit for declaratory judgment under the Texas Declaratory Judgment Act to determine the correct computation of royalties due to be paid by Appellant to Appellees pursuant to terms of oil and gas leases held by Appellant and made by Appellees. It was pled, and is undisputed, that the lease provision here involved is the clause "provided that on gas sold at the wells the royalty shall be one-eighth of the amount realized from such sale." There is no contention but that the gas was sold at the well, and it is also undisputed that the Appellant has fully complied with that clause and has paid each Appellee his share of the proceeds of all gas sold. What, then, is the complaint?
Appellees seek to recover additional money for their gas royalties on the theory that the Appellant has a duty to market the gas at its fair market value and failed to do so; that the fair market value is greater than that for which the Appellant marketed the gas, and that the Appellees are entitled to recover from the Appellant that difference.
On the face of things, Appellees seem to have been wronged for the circumstances under which the gas is produced and sold show that Appellees are being paid far less for their gas than are others. Their leases are pooled (as to which no complaint is made), and the very well from which their gas is produced is owned in varying proportions by different lessees, one of them being Appellees' lessee, the Defendant/Appellant. These different lessees have contracted to sell their gas at differing prices to four purchasers. Appellees' lessee has the lowest contract price. Therein lies the rub. Appellees alleged, and the trial Court agreed, that their lessee had an "implied duty" to make a better contractan implied duty to get the going fair market value. The trial Court made the "going price," or fair market value to be paid, a monthly determinationa "current" market price. This, despite the fact that the gas was not sold monthly but one time under a long term contract at a fixed price. Appellees do not question Appellant's right to make such a contract.
By their oil and gas lease to Appellant, Appellees contracted that Appellant was the owner of such gas as it explored for, found and could produce, and that its obligation was to sell the gas and account to Appellees for their share of the sales proceeds. They have accepted and retained those proceeds. Do they now make out a case to excuse or abrogate the express provisions of their contract? They contracted for a share of "the amount realized from such sale."
It is elementary law that a party who enters into a written contract is bound by its provisions. Pacific Mutual Life Insurance *290 Company v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113 (1959). Appellees have no pleading of fraud, duress, mutual mistake, invalidity, or any of the other recognized legal reasons to excuse compliance with the provision of their contract providing they shall be paid the amount realized from sale of the gas. Appellees' legal reason for abrogating that provision of their contract is that the Appellant breached a duty "to act in good faith." The trial Court found that Appellant breached that duty "in selling gas with respect to which it owes royalty under and pursuant to the terms of the leases described ... at less than the current fair market value thereof,..."
We do not need to discuss or determine whether the failure "to act in good faith" is sufficient legal excuse to overcome the express contractual terms because it is evident from the record that there is no proof of any such failure to act in good faith. As is seen, the only "proof" is that Appellant sold its gas for less than others sold theirs. Obviously, this is not enough to sustain the judgment. Otherwise, all who have contracted for less than the top price paid by others are in default under their oil and gas lease regardless of reasons for entering such contract other than price. The contract under which the gas is sold contains many and varied terms that must be agreed upon by the contracting parties, and price is only one of such terms of the total contract. There is no showing here that Appellant at the expense of price entered into such terms as amounted to acting in bad faith or "failure to act in good faith." To the contrary, the evidence is that Appellant was originally bound to sell its gas for 17¢ per MCF but was able to renegotiate the contract and get 80¢ per MCF for the mutual benefit of it and Appellees.
The Court, in decreeing that Appellant must pay Appellees on the basis of market value determined on a monthly basis in the past and in the future, has made a new contract for the parties; under the oil and gas lease Appellant had the right to sell the gas on long term contracts; in fact, that is the expected and accepted method of sale in the industry. Exxon Corporation v. Middleton, supra. Courts cannot make a new contract for the parties. Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745 (1903).
Even if we assume the rest of the judgment is correct, it is still erroneous as to the finding of "the fair market value" of the gas. The trial Court found as a fact that the price paid by one of the four purchasers was "the" market value. The evidence does not sustain such a conclusion. There were four different prices being paid and no evidence that any particular one of the four was the market price. The one witness who testified readily admitted that he was no expert in that field and did not know what the fair market value was. All purchasers of the gas did so under contracts involving far more than price alone. Many elements go into the makeup of fair market value. Those elements are not in evidence in this case.
There is yet another reason why the judgment cannot stand. The parties executed contracts known as "division orders," which recite that they are binding obligations and which provided that Appellees would be paid for gas based on the proceeds of sale. Even if we assume the trial Court is correct in allowing recovery by Appellees under the oil and gas leases, these division order contracts still present a bar to the recovery. They are binding contracts. Chicago Corp. v. Wall, 156 Tex. 217, 293 S.W.2d 844 (1956); Shell Oil Company v. State, 442 S.W.2d 457 (Tex.Civ.App.Houston [14th Dist.] 1969, ref'd n. r. e.); Pan American Petroleum Corp. v. Vines, 459 S.W.2d 911 (Tex.Civ.App.Tyler 1970, writ ref'd n. r. e.); Le Cuno Oil Company v. Smith, supra; Exxon Corporation v. Middleton, supra. Appellees have no pleadings to overcome these division order contracts and under the record here are bound by them. Le Cuno Oil Company v. Smith is directly in point in this case on two points. First, it upholds the validity of division orders as binding contracts. There, it was the royalty owners who sought to enforce the division orders against the lessee; as in our case, the lessee *291 was both producer and pipe line operator; the Court upheld the judgment of the trial court allowing recovery based upon provisions of the division orders. The Supreme Court of Texas refused error, n. r. e., and the Supreme Court of the United States denied certiorari. Secondly, the Court in Le Cuno had before it a question of reformation of the division orders for which there were no pleadings. The Court, still speaking through Chief Justice Chaddick, said:
"... Had LeCuno pleaded and proved that it was induced to enter into the division orders by the fraud of appellees or through mutual mistake, it, of course, would be entitled to a reformation setting out the true agreement of the parties. See 36 Tex.Jur., 773, Sec. 31 and p. 779, Sec. 35."
Le Cuno was cited in Bankers Life Insurance Company of Nebraska v. Scurlock Oil Company, 447 F.2d 997 (5th Cir. 1971), the Court saying:
"[1] It is settled law in Texas that a division order constitutes a contract between the interest owners and the pipeline purchaser. Pan American Petroleum Corp. v. Long, 5th Cir. 1964, 340 F.2d 211; LeCuno Oil Co. v. Smith, 306 S.W.2d 190 (Tex.Civ.App.Texarkana 1957, writ ref'd n. r. e.), cert. denied, 356 U.S. 974, 78 S. Ct. 1137, 2 L. Ed. 2d 1147 (1958); Chicago Corp. v. Wall, 156 Tex. 217, 293 S.W.2d 844 (1956)."
Under Rule 93(j), Tex.R.Civ.P., the issue of lack of consideration would require a verified plea, and that was not done in this case; the argument that the division orders are without consideration is not available to Appellees under the record. Also, there is the statutory presumption that written contracts of this nature import consideration. Unthank v. Rippstein, 386 S.W.2d 134 (Tex. 1964); Maykus v. Texas Bank & Trust Company of Dallas, 550 S.W.2d 396 (Tex.Civ. App.Dallas 1977, no writ); Exxon Corporation v. Middleton, supra. There has been nothing offered in the case before us to overcome that presumption. The division orders in this case, in fact, amount to a ratification of what was done by Appellant under the gas leases. The Appellee who testified in this case stated that when he signed the division order he knew that gas under his interest was being sold under contract to the Pioneer Gas Company, and that these matters were shown by a sheet attached to the division orders which the Appellees each signed. If, then, there was any failure of duty or failure to act in good faith in marketing the gas to Pioneer, the Appellees have ratified such conduct and are in no position to complain of it.
That part of the judgment of the trial Court allowing Appellees herein to recover should be reversed and judgment here rendered that they take nothing of the Appellant.
NOTES
[1] This same agreement provided that for gas produced from Section 81, the price would be $1.00 per MCF with a 10¢ acceleration every five years.
[2] Siefkin, supra, n. 17 at 188. "`Market' value is what the thing can be sold for. `Actual' value is what the owner wishes he could find a sucker willing to pay." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567385/ | 579 S.W.2d 192 (1978)
Eph H. HOOVER, Jr., Betty Hoover Derryberry and Dorothy Crawford Hoover Milam, Plaintiffs-Appellees,
v.
STATE BOARD OF EQUALIZATION, Defendant-Appellant.
Court of Appeals of Tennessee, Middle Section.
December 27, 1978.
Certiorari Denied April 2, 1979.
William W. Burton, D. Russell Thomas, Murfreesboro, Lewis B. Hollabaugh, Nashville, for plaintiffs-appellees.
William Leech, Atty. Gen., David S. Weed, Sr. Asst. Atty. Gen., Nashville, for defendant-appellant.
Certiorari Denied by Supreme Court April 2, 1979.
*193 OPINION
LEWIS, Judge.
This appeal raises an issue concerning the proper interpretation of T.C.A. § 67-606(5): Whether a court-imposed restriction that limits a life tenant's ability to alien, convey, or encumber their estate or to lease the estate for a period of longer than one year constitutes a "legal restriction(s) on use" and thereby should be considered in the basis of valuation for property tax purposes.
Plaintiffs acquired property in Rutherford County upon the intestate demise of their mother, Mrs. Eleanor Hoover, and their father's relinquishment of his estate by courtesy. The property was conveyed to the children plaintiffs by the court which imposed restrictions in the deeds to protect their interests as minors. All deed restrictions are the same and are accurately represented by the following granting clause in one of the deeds.
"I, James R. Jetton, as Clerk and Master, do hereby transfer and convey to E.H. Hoover, Jr., his heirs and assigns, for and during the period of his natural life and at his death to his child, children, or descendants thereof living at the time of his death per stirpes and if he have no child, children or descendants thereof living at the time of his death, then to Miriam Martha Hoover, Eleanor Elizabeth Hoover and Dorothy Crawford Hoover, or such of them as may be living at the time of his death and to the descendants, living at the time of the death of the said E.H. Hoover, Jr., of such as may be dead, per stirpes and not per capita, free from the debts, contracts, and liabilities of each respective grantee and exempt from attachment or execution and without the power in each respective grantee to alien, convey or incumber their respective estates and without the power in each respective grantee to lease said property for a longer term than one year in any one contract."
The plaintiffs appealed their property tax assessment for the year 1975. The Hearing Examiner for the State Board of Equalization adjusted the valuation of the properties to reflect the deed restrictions effect on the valuation of the properties.
The Assessment Appeals Commission reinstated the original Rutherford County evaluation, asserting that the deed restrictions affected the alienability of the property and, thus, fell outside the scope of T.C.A. § 67-606(5). The State Board of Equalization refused to review the Commission's decision.
The valuation placed by each of the authorities are:
VALUES PLACED BY RUTHERFORD COUNTY
Land Improvement Total Assessment
Description Value Value Value
Map 176, P-22 $ 22,750 $ 2,400 $ 25,150 $ 6,288
Map 112, P-1 257,000 61,000 312,000 78,000
Map 112, P-3 375,000 22,850 397,850 99,463
Map 177, P-14 30,600 6,500 37,100 9,275
Map 177, P-15 23,350 -0- 23,350 5,838
________ _______ ________ ________
TOTAL $708,700 $92,750 $795,450 $198,864
*194
VALUES PLACED BY HEARING EXAMINER
Land Improvement Total Assessment
Description Value Value Value
Map 176, P-22 $ 14,400 $ 2,400 $ 16,800 $ 4,200
Map 112, P-1 156,875 60,990 217,865 54,466
Map 112, P-3 234,475 22,850 257,225 59,306
Map 177, P-14 22,000 4,000 26,000 6,500
Map 177, P-15 13,400 -0- 13,400 3,350
________ _______ ________ ________
TOTAL $441,150 $90,240 $531,290 $127,822
VALUES PLACED BY ASSESSMENT APPEALS COMMISSION AND
AFFIRMED BY THE STATE BOARD OF EQUALIZATION
Land Improvement Total Assessment
Description Value Value Value
Map 176, P-22 $ 22,750 $ 2,400 $ 25,150 $ 6,288
Map 112, P-1 257,000 61,000 312,000 78,000
Map 112, P-3 375,000 22,850 397,850 99,463
Map 177, P-14 30,600 6,500 37,100 9,275
Map 177, P-15 23,350 -0- 23,350 5,838
________ _______ ________ ________
TOTAL $708,700 $92,750 $795,450 $198,864
Plaintiffs filed a Petition for Writ of Certiorari in the Chancery Court for Davidson County. The Chancellor held that the State Board of Equalization decision not to consider the alienability restrictions in the deeds violated T.C.A. § 67-606. The case was "remanded to the Board of Equalization for a determination of the assessment considering the alienability restrictions in the deeds as legal restrictions on use as required by T.C.A. § 67-606."
Defendant has duly perfected its appeal and assigns two (2) errors:
1. The Lower Court erred in holding that the decision of the State Board of Equalization not to consider the alienability restrictions in the deeds violates T.C.A. § 67-606.
2. The Lower Court erred in reversing the decision of the State Board of Equalization because:
"The conclusion that alternative uses are not precluded by the deed restrictions is a conclusion which is unsupported by the evidence in the record."
Tennessee Code Annotated § 67-606 has been amended but subsequent amendments are immaterial to this appeal. Following is the statute as it applies to facts of this case (Supp. 1975):
67-606. Basis of valuation. The value of all property shall be ascertained from the evidences of its sound, intrinsic and immediate value, for purposes of sale between a willing seller and a willing buyer without consideration of speculative values.
In determining the value of all property of every kind, the assessor shall be guided by, and follow the instructions, of the appropriate assessment manuals issued by the state division of property assessments and approved by the state board of equalization.
For determining the value of real property, such manuals shall provide for consideration of the following factors:
(1) location;
(2) current use;
(3) whether income bearing or nonincome bearing;
(4) zoning restrictions on use;
(5) legal restrictions on use;
*195 (6) availability of water, electricity, gas, sewers, street lighting, and other municipal services;
(7) natural productivity of the soil, except that the value of growing crops shall not be added to the value of the land; and
(8) all other factors and evidences of value generally recognized by appraisers as bearing on the sound, intrinsic and immediate economic value at the time of assessment.
For determining the value of industrial, commercial, farm machinery and other personal property, such manuals shall provide for consideration of the following factors:
(1) current use
(2) depreciated value
(3) actual value after allowance for obsolescence
(4) all other factors and evidences of value generally recognized by appraisers as bearing on the sound, intrinsic and immediate economic value at the time of assessment.
It is the legislative intent hereby declared that no appraisal hereunder shall be influenced by inflated values resulting from speculative purchases in particular areas in anticipation of uncertain future real estate markets; but all property of every kind shall be appraised according to its sound, intrinsic and immediate economic value which shall be ascertained in accordance with such official assessment manuals as may be promulgated and issued by the state division of property assessments and approved by the state board of equalization pursuant to law.
Provided, that if the tax computed on an erroneous basis of valuation or assessment has been paid prior to certification of the corrected assessment by the assessor, the trustee or municipal collector shall, within sixty (60) days after receipt of such certification from the assessor, refund to the taxpayer that portion of such tax paid which resulted from the erroneous assessment, such refund to be made without the necessity of payment under protest or such other requirements as usually pertain to refunds of taxes unjustly or illegally collected. [Acts 1973, Ch. 226, § 6; 1974 (Adj.S.), ch. 771, § 8.]
Tennessee Code Annotated § 67-606(5), so far as we are able to determine, has never been construed by the courts of this State. However, in properly deciding the issues presented here, there is some guiding analogous authority in this and other jurisdictions.
In Town of Secaucus v. Damsil, 120 N.J. Super. 470, 295 A.2d 8 (App.Div. 1972), concerning the effect of a cloud on the title to property, the court stated:
As this Court said in Re Appeal of Neptune Tp., 86 N.J. Super. 492, 207 A.2d 330 (Appeal Div. 1965):
"The law requires an assessment of the value, not of the owner's title, but of the land; the assessed value represents the value of all interests in the land. Stack v. Hoboken, 45 N.J. Super. 294, 300, 132 A.2d 314 (App.Div. 1957) [at 499, 207 A.2d 330]."...
It is understandable that the purchaser will insist on a discount from the true value of the property if he buys a doubtful title, but the fact that he does so affords no justification for applying a discount in a tax valuation case. Such a sale and discount is entitled to no essential weight in ascertaining what `a willing buyer would pay a willing seller' for all the interest in the land. Id. at 474, 295 A.2d at 10.
For property tax purposes, value attaches to the property itself, not to the interest of the current party in possession. The purchase and sale between the hypothetical parties envisions a hypothetical transfer of the present possessory interest(s) and any future interest attendant thereto. Here, the property interest consists of the present possessory life estate and the expectant remainder interest that completes the full fee in the lands.
In placing a valuation on the property, T.C.A. § 67-606 recognizes the existence of *196 restrictions and encumbrances that affect the value of the fee simple estate, i.e. zoning restrictions, easements, etc. These are restrictions that run with the land, rather than those that are personal to the parties in possession.
In NeBoShone Ass'n v. State Tax Commission, 58 Mich. App. 324, 227 N.W.2d 358 (1975), a nonprofit association which owned land used as a wildlife reserve appealed its valuation as it was affected by a navigable river running through the property.
Concerning the self-imposed restriction on the use of the land, the Michigan Court of Appeals stated:
A private individual could not self-impose a restriction whereby he might be able to limit or avoid paying his just share of the ad valorem taxes due to government nor can a corporation. Id. at 334, 227 N.W.2d at 363.
In Stack v. City of Hoboken, 45 N.J. Super. 294, 132 A.2d 314 (App.Div. 1957), concerning a title holder's status in relation to the property, the court stated:
It must be apparent that in assessing the value of land, account should not be taken of the condition of the title of the alleged land owner or of any cloud upon it; nor should account be taken of the possibility that he would be unwilling to sell it because of an understanding with his grantor, or of the possibility that a purchaser would be put on notice that this grantor has an equitable interest in the property. The law requires an assessment of the value, not of the purported owner's title, but of the land; the assessed value of the land represents the value of all interest in the land. Id. at 300, 132 A.2d at 317-8.
Defendant contends that this principle is applicable to the law in Tennessee and that "the condition of appellees' title is irrelevant with respect to tax assessment and valuation purposes."
Defendant directs our attention to Sherrill v. Board of Equalization for the State of Tennessee, 224 Tenn. 201, 452 S.W.2d 857 (1970). There, the remaindermen appealed from a dismissal of their petition for certiorari based on an allegation that the State Board of Equalization incorrectly had affirmed an assessment which assessed the remaindermens' interest in the property.
The Supreme Court held that the full value of the land is taxed in the hands of the life tenants, notwithstanding the fact that a life tenant has less than a full and unrestricted ownership of the land.
The restrictions present in the deed before us are primarily restrictions on the alienability of the property. The term "primarily" is used in recognition of the reality that when alienation is restricted, there is a resultant effect on the use of the property. However, the incidental effect on the use is not within the concerns of T.C.A. § 67-606(5). That section directs consideration to "legal restrictions on use" only.
These properties are not subject to any direct restrictions on use. In fact, plaintiffs are free to lease the property within the ambit of the restriction on such alienation. It is their concern that such restrictions greatly inhibit one avenue of use which may, in fact, be one of the prime values of the properties.
However, an alternate construction of T.C.A. § 67-606(5), as argued by the plaintiffs, would have a far-reaching effect on property taxation in Tennessee. To value and assess real property by taking into consideration a self-imposed or court-ordered temporary restriction, as in the facts at hand, would negate the clear mandate of the willing buyer and willing seller concept and could allow property owners to effectively control the valuation of their properties for taxation purposes by careful imposition of limited restrictions in the deeds to their properties.
Defendant's first assignment of error is sustained.
Defendant's second assignment of error asserts that if an administrative agency commits harmless error, the reviewing court cannot use it as a proper basis for reversal of the agency's decision. Defendant's *197 contention is in accord with T.C.A. § 4-523(i), which provides:
No agency decision pursuant to a hearing in a contested case shall be reversed, remanded, or modified by the reviewing court unless for errors which affect the merits of the decision complained of. Id. Supp. 1978.
The Chancellor stated as a ground for reversal of the Assessment Appeals decision:
[T]he conclusion that alternate uses are not precluded by the deed restrictions is a conclusion which is unsupported by evidence in the record.
Such a conclusion, whether or not supported by material and substantial evidence in the record, does not affect the merits of the decision as contemplated by T.C.A. § 4-523(i).
Therefore, the error, if in fact it constituted error, was harmless and, thus, did not afford the Chancellor a basis for reversal.
It results that the decision of the Chancellor is reversed and the valuations as determined by the Assessment Appeals Commission are reinstated.
Costs are taxed to plaintiffs-appellees.
TODD and DROWOTA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567396/ | 579 S.W.2d 291 (1979)
Marvin Leo SILCOTT, Appellant,
v.
Mary Lou Silcott WILSON and Kenneth E. Barnhill, Jr., Appellees.
No. 19735.
Court of Civil Appeals of Texas, Dallas.
February 14, 1979.
*292 W. R. Sessions, F. T. Gauen, Jr., Sessions & Sessions, Dallas, for appellant.
M. Troy Murrell, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for appellees.
Before AKIN, ROBERTSON and CARVER, JJ.
ROBERTSON, Justice.
This is an appeal from a summary judgment enforcing foreign judgments. Mary Lou Wilson and attorney Kenneth E. Barnhill, Jr., appellees, sued Marvin Leo Silcott, appellant, to enforce a series of Colorado judgments pertaining to child support arrearages and attorney's fees, respectively. The trial court granted appellees' motion and rendered judgment in their favor. Since we hold that these Colorado judgments are final and are entitled to full faith and credit, we affirm.
Marvin and Mary Silcott obtained a Colorado divorce on November 16, 1964. As a part of the decree, appellant was ordered to pay child support and attorney's fees. Over the next thirteen years, one judgment for arrearages in child support and for attorney's fees and four other judgments for *293 unpaid child support[1] were rendered by the Colorado court against appellant. These judgments were unsatisfied. Appellees filed this suit in Texas to enforce these Colorado judgments against appellant, who is now a Texas resident.
At the hearing on appellees' motion for summary judgment, appellees established a prima facie case by proper summary-judgment evidence. Appellant filed his answer to the summary-judgment motion on the day of the hearing. Tex.R.Civ.P. 166-A(c) states that the adverse party must file his answer at least seven days prior to the day of hearing, unless he obtains leave of the court to file it later. The record fails to reflect whether leave was obtained. Thus, the judge was not compelled to consider appellant's response. Even if the judge considered it, the response did not contain any proper summary-judgment evidence raising a fact question.
Assuming that the trial court did consider appellant's answer, three arguments are raised: first, whether the Colorado judgments are final; second, whether the claim for attorney's fees has been discharged in bankruptcy; and finally, whether the judgment rendered is supported by the pleadings and the evidence. We find no merit in any of these contentions.
With respect to appellant's first contention, he argues that since the Colorado judgments are subject to modification, they are not final, and, consequently, are not entitled to full faith and credit. We cannot agree. Judgments decreeing arrearages in child support are final judgments and are entitled to the same treatment as any judgment for debt under Colorado law. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544, 545 (1958). In Jenner, the court stated: "Each installment [of unpaid child support] which matures under a decree which had not been modified becomes a judgment debt." Although the trial court refused appellee's motion to take judicial notice of Jenner, the court apparently applied Colorado law according to Jenner. Thus, under U.S.Const. Art. IV, sec. I, we must give this final judgment of a sister state the same effect to which it is entitled in the state where rendered. Sistare v. Sistare, 218 U.S. 1, 30 S. Ct. 682, 54 L. Ed. 905 (1910); Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82 (1944); Harris v. Harris, 403 S.W.2d 445 (Tex.Civ.App. Houston 1966, writ ref'd n. r. e.). Even if the trial court failed to consider the law of Colorado regarding finality of judgments for arrearages in child support, the result is unchanged. The presumption that the law of Colorado is the same as that of Texas would apply, State v. Thomasson, 154 Tex. 151, 275 S.W.2d 463, 464 (1955), and these Colorado judgments are considered final under Texas law. Red v. Red, 552 S.W.2d 90 (Tex.1977); Tex. Family Code Ann. § 14.08(c)(2) (Vernon Supp.1978-1979).
Appellant next argues that appellee Barnhill's claim for attorney's fees is discharged in bankruptcy, by reason of a bankruptcy proceeding in Kansas in 1968. Appellant claims that the record raises a question of whether appellee's services were rendered in the original divorce action or in a later action. We do not agree. Judgments for support or maintenance of a wife or child are not dischargeable in bankruptcy. 11 U.S.C. § 35(a)(7) (Supp.1978). This section has been construed to include attorney's fees adjudged in connection with the representation of a wife in a divorce case. Nunnally v. Nunnally, 506 F.2d 1024, 1027 (5th Cir. 1975); Allison v. Allison, 150 Colo. 377, 372 P.2d 946 (1962). The record clearly reflects that the award of attorney's fees to appellee Barnhill was in connection with the divorce case in Colorado. Thus, we overrule this point.
*294 Finally, appellant contends that the judgment rendered by the trial court is not supported by the pleadings and the evidence. He argues that appellees sought judgment in the amount of $48,350.00 and $4,225.04, respectively, but that the court awarded appellees $60,508.45 and $7,100.15, respectively, and thus violated the general rule that a judgment must conform to the pleadings. Tex.R.Civ.P. 301. This contention ignores the fact that appellees' pleadings included all of the Colorado judgments and that the court properly took judicial notice of the post-judgment interest statute in Colorado. Tex.R.Civ.P. 184a; Schwartz v. Vecchiotti, 529 S.W.2d 603 (Tex.Civ.App. Houston [1st Dist.] 1975, writ ref'd n. r. e.). Applying the Colorado judgment interest statute, the court by simple arithmetic calculation correctly added interest to the principal amounts pleaded and rendered judgment accordingly. See Casterline v. Burden, 560 S.W.2d 499, 502 (Tex.Civ.App. Dallas 1977, no writ). Although appellant has challenged the summary-judgment evidence, all of the authenticated Colorado judgments were attached to appellees' motion for summary judgment. Thus, both the pleading and the evidence were sufficient to support the judgment.
Accordingly, we affirm.
NOTES
[1] These judgments were rendered on the following dates for the following amounts:
June 20, 1967$2,495 for arrearages in child support, $4,225.04 for attorney's fees;
April 27, 1970$11,555 for arrearages in child support;
August 1, 1976$28,000 for arrearages in child support;
August 27, 1977$5,400 for arrearages in child support;
October 3, 1977$900 for arrearages in child support. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567399/ | 579 S.W.2d 946 (1979)
ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY, Appellant,
v.
Ira Gillis WHITE, III, Appellee.
No. 17342.
Court of Civil Appeals of Texas, Houston (1st Dist.).
March 29, 1979.
Rehearing Denied April 26, 1979.
Tekell, Book & Matthews, Hal R. Upchurch, Houston, for appellant.
Leebron & Robinson, Laron D. Robinson, Houston, for appellee.
Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
PEDEN, Justice.
Electric Mutual Liability Insurance Company appeals from a judgment in a Worker's Compensation suit based on jury findings that Ira Gillis White was totally incapacitated for three months and has a partial incapacity that is permanent. Electric Mutual maintains that the trial court erred in excluding evidence of White's wages at the time of his injury, that there was insufficient *947 evidence to support the jury's finding as to his average weekly earning capacity during partial incapacity, and that such finding was against the great weight of the evidence. We affirm.
Gillis White injured his back on December 1, 1976, while working in the course of his employment for the General Electric Company. Surgery was performed on him for a herniated disc. On March 14, 1977, he returned to work on a part-time basis and about a week later resumed work full time.
White has been able to continue working but says he is in constant pain and has found it necessary to take time off from work for traction treatments prescribed by his doctor. He says his concentration and attention to detail required on his job have been impaired by the continual pain.
Dr. Phillip Daley, White's treating physician and surgeon, testified that White's condition is suggestive of chronic low back inflammation as a result of his injury. He stated: "Statistically, once a man has a ruptured intervertebral disc and laminectomy, his chance for having to be operated on again in his lumbar region for recurrent disc or another disc or scar tissue is significantly greater ... " He said that White's ability to compete in the job market has been diminished.
The jury found in response to Issue 1 that White was totally incapacitated from December 1, 1976, until March 14, 1977, and found, in response to Special Issues 2, 2A and 2B, that beginning on March 14, 1977, he has a partial incapacity that is permanent. In answer to Issue 2C, it found that his weekly earning capacity during his partial incapacity is $150.
In points of error 1-4, Electric Mutual contends that the trial court erred in excluding not only White's testimony concerning his wages prior to and at the time of his injury but also the parties' stipulation concerning White's average weekly wage at the time of his injury. Electric Mutual maintains that this evidence was relevant and material to the issue of whether White sustained a "reduction in earning capacity" as used in the trial court's definition of "partial incapacity."
The court's charge defined "partial incapacity" as "any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity .. " "Earning capacity" was defined as "ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed. It does not necessarily mean the actual wages, income, or other benefits received during the period inquired about."
Section 11 of Article 8306 provides that in the event of partial incapacity, the injured employee is entitled to a "weekly compensation equal to sixty-six and two-thirds per cent (662/3%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity." In our case the parties stipulated, outside the presence of the jury, that White's average weekly wage as computed under the Worker's Compensation Act was $366.75.
The purpose of the act is to compensate an injured employee for loss in earning capacity, not for the loss of earnings or for the injury sustained. Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961); Maryland Casualty Co. v. Stevens, 55 S.W.2d 149, 153 (Tex.Civ. App.1932, writ ref.). One is not partially incapacitated unless his average weekly wage earning capacity after injury is less than his average weekly wages before injury. Employers Reinsurance Corp. v. Holland, supra.
In the charge in our case, the definition of "earning capacity" clearly stated that earning capacity "does not necessarily mean the actual wages, income, or benefits received during the period inquired about."
The fact that a claimant works and earns the same or more money after his *948 injury than before is not conclusive on the issue of his incapacity to perform labor, but is simply evidentiary. Maryland Casualty Co. v. Goetz, 337 S.W.2d 749 (Tex.Civ.App. 1960, no writ); Texas Employer's Insurance Ass'n v. Evers, 242 S.W.2d 906 (Tex.Civ. App.1951, writ ref. n. r. e.). Electric Mutual asserts that it was vital to its defense that the court admit testimony concerning White's preinjury wages. We disagree. Although the jury was not apprised of the actual dollar amount White received prior to his injury, it was shown that he had returned in March of 1977 to basically the same job at a yearly salary of $14,189, that he had been receiving raises, and that as late as March of 1978, he was making $15,498.
"... [A]verage weekly wages before injury must represent, in law, earning capacity before injury." Employers Reinsurance Corp. v. Holland, supra. But our courts have never held that wages after injury represent capacity. To do so would ignore such important employment factors as tenure, experience, inflation, and supply and demand.
We consider that Electric Mutual was entitled to have evidence concerning White's pre-injury wages admitted, but we cannot say that the exclusion of this information constituted reversible error. Rule 434, T.R.C.P. The jury was made aware that White was earning more at the time of trial than he was before his injury. The exclusion of the actual dollar amount did not seriously weaken Electric Mutual's defense; "wages" and post-injury "earning capacity" are not synonymous.
Electric Mutual's points of error 5 and 6 assert that there is insufficient evidence to support the jury's answer to special issue 2C (that White's average weekly wage earning capacity during incapacity was $150) and that such answer is against the great weight and preponderance of the evidence.
Electric Mutual points out that in addition to the fact that White is earning more money than before his injury, there has only been one complaint about his work, his job does not involve manual labor, and to date his doctor has "seen no reason to restrict him from doing the white-collar type job that he's doing."
Concerning his job requirements, White says it takes him longer to get his work done, and when cross-referencing orders through the large books that are used in his work, he sometimes has to sit on the floor to leaf through the books rather than carry them to his desk. Even sitting or standing for periods of time causes discomfort. In July, his employer complained to White about his performance.
Dr. Daley testified that White's complaints of pain and discomfort were consistent with his injury and that his diagnosis of White's condition was suggestive of a chronic low back inflammation that is probably permanent. He said pain can be disabling, particularly if it persists over a long period of time. He testified that he would not certify White to do any heavy or manual labor and that "[a]nything that would stress his lumbosacral region, such as prolonged standing, or even prolonged sitting in one position may cause him discomfort and decreased productivity." When asked whether White was capable of performing his usual white-collar duties, the doctor replied:
No sir. That is not predictable. I think he could have difficulties even performing white collar work. At times the worst position for a patient who has back disease is a prolonged sitting position. To date I have seen no reason to restrict him from the white-collar job he's doing.
There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered a disability. If after injury his capacity and efficiency to work are not the same as before the injury, he is entitled to compensation even though he is being paid as much or more than he earned prior to or at the time of injury. Texas Employers' Insurance Ass'n v. Evers, *949 242 S.W.2d 906 (Tex.Civ.App.1951, writ ref. n. r. e.); Employers Reinsurance Corp. v. Ryne, 531 S.W.2d 156 (Tex.Civ.App.1975, no writ.).
We stated in Consolidated Casualty Insurance Co. v. Smith, 309 S.W.2d 80 (Tex. Civ.App.1958, writ ref. n. r. e.);
In determining diminished earning capacity, you do not consider alone the ability of the workman to do the immediate type of work he is on. He may not always be on this type of work. He must compete in the mart of labor for jobs of varying types. Some of them are very advantageous but require hard manual labor. A jury has a right to consider this factor, in the light of all the testimony, in determining lessened earning capacity. Texas Employers' Ins. Ass'n v. Evers, Tex.Civ.App., 242 S.W.2d 906 [writ.] ref., n. r. e.; Texas Employers' Ins. Ass'n v. Taylor, Tex.Civ.App., 276 S.W.2d 901, writ. ref., n. r. e.
We hold that the evidence presented was sufficient to support the jury finding that during his incapacity White's weekly wage earning capacity was $150.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567395/ | 10 So. 3d 236 (2009)
STATE of Louisiana
v.
Lloyd W. ADDISON.
No. 08-KA-680.
Court of Appeal of Louisiana, Fifth Circuit.
February 25, 2009.
*237 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, James Adair, Tonia Williams, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
Michael H. Idoyaga, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
WALTER J. ROTHSCHILD, Judge.
Defendant, Lloyd Addison, was charged with attempted second degree murder in violation of LSA-R.S. 14:30.1 and 14:27 and was found guilty by a jury of the responsive verdict of attempted manslaughter. He was sentenced to imprisonment at hard labor for 20 years, and he appealed from this conviction on the basis of several assignments of error. That appeal is a companion case on this Court's docket and bears number 08-KA-461, 8 So. 3d 707.
On the same date that defendant was sentenced on this original conviction, the State filed a multiple bill alleging defendant to be a second felony offender, and defendant denied those allegations. Following a hearing, defendant was found to be a second felony offender. The trial court then vacated the original sentence and resentenced defendant to imprisonment at hard labor for 40 years without benefit of probation or suspension of sentence. Defendant now appeals from the multiple bill conviction and sentence.
The facts of this case are stated in detail in the companion case, 08-KA-461, and will not be repeated herein. However, the evidence at trial indicates that defendant brutally beat and repeatedly stabbed the victim, his then girlfriend, in the head, face, neck and hand causing her significant injury.
By this appeal, defendant argues that his 40-year enhanced maximum sentence is constitutionally excessive because it is, in effect, a life sentence. He notes that his previous conviction for possession of cocaine occurred nine years earlier in 1999. He also argues that the trial court *238 failed to articulate reasons for the sentence pursuant to LSA-C.Cr.P. art. 894.1. He contends that the jurisprudence supports a lower sentence, and that a 10 year sentence would have been appropriate considering the facts of this case. The State responds that the record supports the sentence imposed and, therefore, the sentence should not be disturbed on appeal.
On June 27, 2008, a multiple bill hearing was held, after which the trial judge found defendant to be a second felony offender. She vacated the original sentence and resentenced defendant to imprisonment at hard labor for 40 years. Defendant orally noted his objection. The trial judge did not provide reasons for the sentence imposed.
Defendant did not make or file a motion to reconsider sentence as required by LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Stevenson, 05-52, p. 11 (La.App. 5 Cir. 6/28/05), 908 So. 2d 48, 55, writ denied, 05-2592 (La.6/2/06), 929 So. 2d 1247. Additionally, because defendant did not file a motion to reconsider sentence, he has lost his right to a review of his argument concerning the trial court's non-compliance with Article 894.1, which falls under the category of statutory excessiveness. State v. Fairley, 02-168, p. 8 (La.App. 5 Cir. 6/26/02), 822 So. 2d 812, 816.
Defendant was found to be a second felony offender and faced a sentencing range of 10 to 40 years at hard labor without the benefit of probation or suspension of sentence. LSA-R.S. 14:27; 14:31; 15:529.1A(1)(a). Defendant received the maximum 40-year prison term.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So. 2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So. 2d 618, 622.
A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So. 2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So. 2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332 at 15-16, 975 So.2d at 656.
Defendant cites two cases in support of his contention that the sentence was excessive: State v. Brown, 35,641 (La.App. 2 Cir. 8/20/03), 852 So. 2d 1234 and State v. Matthews, 532 So. 2d 270 (La.App. 3 Cir. 1988). In Brown, the defendant was charged with first degree murder, but convicted *239 of manslaughter, and sentenced to serve 20 years at hard labor. The appellate court found that the sentence was not excessive, noting that the defendant had beaten the victim, broken her jaw, dragged her across the ground, and strangled her, all prior to drowning her. The appellate court also noted that the sentence was one-half of the maximum sentence allowed. Id., 35,641 at 4, 852 So.2d at 1236.
In Matthews, the defendant pled guilty to manslaughter after the charge was reduced from second degree murder, and the trial court sentenced him to the maximum sentence at that time, 21 years at hard labor. State v. Matthews, 532 So.2d at 270. In that case, the defendant and his male co-worker had a dispute about pay. The co-worker stepped out of his vehicle, and the defendant stabbed him once between the ribs. The defendant admitted stabbing his co-worker, but claimed that the co-worker struck him first from behind. Id. The appellate court found that the record did not support the maximum sentence, noting that the defendant was a first felony offender, 48 years old, with two children and a steady employment history. Id. at 272. The appellate court also commented that the crime was a true manslaughter in that the defendant only inflicted one wound in the heat of passion while drinking. Id. at 271.
Brown and Matthews are distinguishable from the instant case and, therefore, inapplicable. The instant case involved a defendant who was convicted of attempted manslaughter and subsequently found to be a second felony offender, whereas the defendants in Brown and Matthews were convicted of manslaughter and not multiple billed. Additionally, the defendant in Matthews was a first felony offender, whereas the defendant in the instant case was a second felony offender.
No published Louisiana appellate court cases regarding excessive sentence claims could be located involving defendants who were convicted of attempted manslaughter and subsequently found to be second felony offenders. However, the following case, which is somewhat similar to the instant one, is instructive:
In State v. Fuller, 37,626, p. 1 (La.App. 2 Cir. 10/16/03), 859 So. 2d 215, writ denied, 03-3151 (La.4/23/04), 870 So. 2d 296, the defendant was charged with attempted second degree murder, which was subsequently reduced to aggravated second degree battery. The defendant pled guilty as charged and subsequently pled guilty to being a second felony offender, and the trial court sentenced him to 20 years at hard labor. Id., 37,626 at 1, 859 So.2d at 215-16. In that case, the defendant stabbed his wife in the face multiple times with a three-inch knife. Id., 37,626 at 1-2, 859 So.2d at 216. He also stabbed the back of her head and neck and slashed both of her hands. Id., 37,626 at 2, 859 So.2d at 216. The defendant's wife unlocked the door and tried to run, but the defendant caught her, dragged her into the bathroom, threw her into the bathtub, and turned on the water. Id. The defendant was 47 years old with a prior conviction in 1990 (10 years prior to the offense) for distribution of cocaine. Id., 37,626 at 1-2, 859 So.2d at 216. The trial court noted that this was a serious offense which involved heinous circumstances and brutal cutting and stabbing which caused permanent scarring and emotional damage to the victim. Id., 37,626 at 2-3, 859 So.2d at 216. The appellate court found no constitutional error, noting that the defendant received leniency from the State through its agreement to reduce the charge to aggravated second degree battery, and that the facts of this case would have supported a conviction of attempted second degree murder. Id., 37,626 at 3, 859 So.2d at 216.
*240 We find many similarities between the instant case and Fuller. Both the defendant in the instant case and the defendant in Fuller brutally attacked their victims by cutting and stabbing them with a knife in the head, neck, and hands. The factual situations in both cases involved domestic-type disputes, as the defendant in the instant case stabbed his girlfriend, whereas the defendant in Fuller stabbed his wife. The defendant in the instant case is 47 years old, the same age as the defendant in Fuller. The defendant in the instant case had a drug conviction seven years prior to the underlying offense, and the defendant in Fuller had a drug conviction 10 years prior to the offense. The defendant in the instant case was charged with attempted second degree murder, but was convicted of attempted manslaughter, punishable by imprisonment for not more than 20 years (LSA-R.S. 14:27; 14:31), similar to the defendant in Fuller who was charged with attempted second degree murder, but pled guilty to aggravated second degree battery, an offense punishable by imprisonment for not more than 15 years (LSA-R.S.14:34.7). The defendant in the instant case received the maximum sentence as a second felony offender, 40 years, whereas the defendant in Fuller received two-thirds of the maximum sentence as a second felony offender, 20 years.
Therefore, considering the totality of the circumstances and the jurisprudence, we find that defendant's 40 year maximum sentence as a second felony offender is not constitutionally excessive. Defendant has a prior conviction for possession of cocaine and, therefore, it appears that his criminal behavior has escalated. He beat the victim and brutally cut and stabbed her numerous times in the head, neck, chest, leg, and hands with a large hunting knife, which caused permanent scarring. The doctor asserted that the wounds to her neck and chest had a high risk of striking life-altering organs and were potentially lethal. Additionally, the evidence presented arguably supported a finding of attempted second degree murder. Fuller, supra. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Pearson, 07-332 at 16, 975 So.2d at 656. For the reasons stated above, we find that this is such a case. We also find that the 40-year maximum sentence is neither grossly disproportionate to the severity of the offense nor shocking to the court's sense of justice.
In light of the foregoing, we find that the trial court did not abuse its discretion by imposing the 40-year maximum sentence.
As in the companion case, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920, State v. Oliveaux, 312 So. 2d 337 (La.1975); and State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990). We have discovered no error which require corrective action. Accordingly, for the reasons stated herein, defendant's multiple bill conviction and sentence are hereby affirmed.
AFFIRMED.
JASMINE, J., dissents.
JASMINE, J., dissents.
I respectfully dissent from the majority opinion. I find that the defendant's sentence of 40 years as a second felony offender for attempted manslaughter is constitutionally excessive. The majority distinguishes Brown and Matthews in support of its conclusion that the sentence is not constitutionally excessive, and further relies on Fuller. Whereas I agree these cases can be distinguished from the present *241 case, I find that they actually support, rather than defeat, a determination that defendant's sentence is excessive.
As noted by the majority, a trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332 at 15-16, 975 So.2d at 656.
The multiple offender statute, LSA-R.S. 15:529.1, intended to enhance punishment for repeat offenders, simply provides an ancillary factor for the sentencing judge's consideration when meting out the prescribed penalty following a defendant's most recent conviction. State v. Youngblood, 26,722 (La.App. 2 Cir. 12/22/94), 647 So. 2d 1388, quoting State v. Dorthey, 623 So. 2d 1276 (La.1993). It not only acts as a deterrent and warning to first offenders, but also protects society by removing recidivists from its midst. Id.; State v. George, 218 La. 18, 48 So. 2d 265 (1950), cert, denied, 340 U.S. 949, 71 S. Ct. 528, 95 L. Ed. 684 (1951).
As a second felony offender whose predicate conviction was in 1999 for possession of cocaine, a non-violent offense that occurred seven years prior to this offense, Addison's exposure on the multiple bill for attempted manslaughter was a sentencing range of 10 to 40 years at hard labor without the benefit of probation or suspension of sentence. LSA-R.S. 14:27; 14:31; 15:529.1A(l)(a). His original sentence of 20 years was vacated and an enhanced sentence of 40 years imposed.
I note that in both Brown and Matthews, the victims died, unlike in the present case, where the victim survived, and yet the defendant Brown received 20 years and Matthews, 21,[1] which is half the 40 years to which Addison was sentenced. The fact that Brown and Matthews actually killed their victims, whereas Addison did not, is a more important factor in fashioning a proportionate sentence than the fact that Mr. Addison is a second felony offender and Brown and Matthews were not. I do not imply in any way that Addison's crime was not serious or brutal, but the sentencing judge must strike a balance between the goals of the multiple offender statute and the duty to give a proportionate sentence for the instant offense. My sense of justice is shocked by a sentence that punishes an attempted manslaughter with twice as much time than two other defendants received who actually killed their victims, whether they were first offenders or not.
Further, I find that the majority's reliance on Fuller is misplaced. For a course of conduct similar to Addison's in the instant case, Fuller, a second felony offender, received 2/3 of the maximum sentence for aggravated second degree battery, or 20 years, which actually supports Addison's argument that his maximum sentence is excessive.[2]
Given that Addison's exposure on the multiple bill was 10 to 40 years, and considering the factors the appellate court uses when reviewing a sentencing judge's discretion, I find that this sentence is grossly disproportionate to the offense and *242 constitutionally excessive. I would vacate the sentence and remand for resentencing.
NOTES
[1] I further note that Matthews' 21-year sentence, which was the maximum for manslaughter at the time, was found by the appellate court to be excessive.
[2] Two-thirds of 40 years is 26.6 years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724124/ | 210 Wis. 2d 415 (1997)
565 N.W.2d 248
STATE of Wisconsin, Plaintiff-Respondent,
v.
Raymond F. MOLITOR, Defendant-Appellant.[]
No. 96-2673-CR.
Court of Appeals of Wisconsin.
Submitted on briefs February 10, 1997.
Decided April 24, 1997.
*417 For the defendant-appellant the cause was submitted on the brief of Donald T. Lang, assistant state public defender.
For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
Before Eich, C.J., Roggensack and Deininger, JJ.
DEININGER, J.
Raymond Molitor appeals a judgment convicting him of engaging in repeated acts of sexual assault with the same child, contrary to § 948.025(1), STATS.[1] He also appeals an order denying postconviction relief. He makes two claims: (1) that subsection (2) of § 948.025 renders the statute unconstitutional by depriving Molitor of his state constitutional right to a unanimous jury verdict; and (2) that he should be allowed to withdraw his no contest plea because it was not entered knowingly and voluntarily. *418 We conclude that § 948.025 is not constitutionally infirm inasmuch as it requires a jury to unanimously agree that the defendant engaged in a specified continuous course of conduct. We further conclude that the State met its burden in showing at the postconviction hearing by clear and convincing evidence that Molitor understood the nature of the charge to which he pleaded.
BACKGROUND
Molitor was charged under § 948.025(1), STATS., for allegedly engaging in sexual intercourse with a fifteen-year-old girl "on more than three occasions" between April 1 and May 21, 1995. The complaining witness testified at the preliminary hearing that she had an ongoing sexual relationship with Molitor, and that she had intercourse with him almost daily during the period in question. Molitor pleaded no contest to the charge and was subsequently sentenced to a twenty-year prison term.
Postconviction, Molitor moved that his conviction be vacated on constitutional grounds, and for withdrawal of his plea because it was not knowing and voluntary. The trial court denied relief on both grounds and Molitor appeals.
ANALYSIS
a. Constitutionality of § 948.025(2), STATS.
The constitutionality of a statute is a question of law which we decide de novo. State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883, 887 (1992). The person attacking the constitutional validity of a statute bears the burden of overcoming the strong presumption in favor of the statute's validity. Id.
*419 [1,2]
As an initial matter, the State questions whether Molitor's constitutional claim is properly before us in light of his no contest plea. A plea of no contest waives all non-jurisdictional defects in the proceedings. State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 651, 292 N.W.2d 807, 810 (1980). The State contends Molitor has not raised a jurisdictional defect because his challenge is to the application of the statute, not its face.[2] We cannot conclude that Molitor's claim attacks anything other than the face of the statute, specifically, the language providing that "the jury must unanimously agree that at least 3 violations occurred within the time period . . . but need not agree on which acts constitute the requisite number." Section 948.025(2), STATS. (emphasis supplied). Molitor relies on no facts in the record or other "information outside the statute" to support his claim. See State v. Olson, 127 Wis. 2d 412, 420, 380 N.W.2d 375, 379 (Ct. App. 1985). The fact that Molitor poses certain hypothetical situations and discusses related precedents in developing his argument does not mean that the gravamen of his attack is anything other than that the words of the statute itself render it unconstitutional.
*420 Just because we conclude that Molitor's attack on § 948.025, STATS., is properly before us, however, does not mean that we find merit in it. We have no quarrel with his assertion that Article I, sections 5 and 7 of the Wisconsin Constitution guarantee a defendant the right to a unanimous jury verdict of guilt in order to be convicted of a crime. State v. Seymour, 183 Wis. 2d 683, 694 & n.9, 515 N.W.2d 874, 879 (1994). We also agree that the right to a unanimous verdict includes the requirement that the "jury must agree unanimously that the prosecution has proved each essential element of the offense beyond a reasonable doubt before a valid verdict of guilty can be returned." Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288, 290 (1979), cert. denied, 445 U.S. 931 (1980). We do not agree, however, that this requirement may not be fulfilled where, as here, unanimity is required as to the existence of a continuing course of conduct rather than as to each discrete act of which it is comprised.
The supreme court, in State v. Giwosky, 109 Wis. 2d 446, 451, 326 N.W.2d 232, 235 (1982), concluded that when the charged behavior constitutes "one continuous course of conduct," the requirement of jury unanimity is satisfied regardless of whether there is agreement among jurors as to "which act" constituted the crime charged. (Emphasis omitted). While the course of conduct in Giwosky was a "short continuous incident that can not be factually separated," Id. at 456, 326 N.W.2d at 238, the court later clarified in State v. Lomagro, 113 Wis. 2d 582, 594, 335 N.W.2d 583, 590 (1983), that the duration of the course of conduct was not "legally significant." The unanimity requirement is met where multiple acts can be said to constitute "one continuous, unlawful event and chargeable as one count." Id.
*421 [3]
The question in Lomagro was whether the aggregation of multiple, conceptually similar acts into a single charged crime was constitutionally permissible as an act of prosecutorial discretion. Id. at 589, 335 N.W.2d at 588. See also State v. Glenn, 199 Wis. 2d 575, 584, 545 N.W.2d 230, 234 (1996). The language of § 948.025, STATS., plainly shows that the legislature intended to create a single crime, the repeated sexual assault of the same child within a specified time period. The question before us, then, is whether the legislature may, like prosecutors, aggregate conceptually similar acts in a single "course of conduct" crime, albeit for acts committed over an indefinite, and presumably longer, period of time. We conclude that it may.
Molitor argues that the only "continuous course of conduct" crimes recognized by Wisconsin courts are of the short duration variety analyzed in Giwosky and Lomagro. But the lack of a precedent upholding the constitutional validity of a statute which expressly creates a "course of conduct" crime stems from the newness and relative uniqueness of § 948.025, STATS., rather than from any rejection of the concept by Wisconsin courts.[3] The State refers us to a line of California cases upholding a similar statute against a jury unanimity challenge, and we find them persuasive here.
The California statute, CAL. PENAL CODE § 288.5, provides that:
(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than *422 three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years . . . is guilty of the offense of continuous sexual abuse of a child . . . .
(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.
The California constitution is also interpreted as requiring unanimity in jury verdicts of guilt for a crime. See People v. Gear, 23 Cal. Rptr. 2d 261, 264 (Cal. Ct. App. 1993), cert. denied, 511 U.S. 1088 (1994). California courts, however, recognize two contexts in which unanimity as to specific acts comprising a course of conduct crime is not required: (1) "`acts . . . so closely connected that they form part of one and the same transaction,'" apparently similar to the Giwosky rationale; and (2) "`when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time,'" which applies to statutes like CAL. PENAL CODE § 288.5 and § 948.025, STATS. See People v. Avina, 18 Cal. Rptr. 2d 511, 513-14 (Cal. Ct. App. 1993) (quoted source omitted). The California Court of Appeals has explained why such statutes do not require a unanimity instruction as to specific acts:
"The continuous-course-of-conduct crime does not require jury unanimity on a specific act, because it is not the specific act that is criminalized. The actus reus of such a crime is a series of acts occurring over a substantial period of time, generally on the same victim and generally resulting in cumulative injury. The agreement required for conviction is directed at the appropriate actus reus: unanimous assent that the defendant engaged in the criminal course of conduct." *423 People v. Whitham, 45 Cal. Rptr. 2d 571, 579 (Cal. Ct. App. 1995) (quoted source omitted); see Gear, 23 Cal. Rptr.2d at 265.
In order to convict a defendant of violating § 948.025, STATS., a jury "must unanimously agree that at least 3 [sexual assaults] occurred within [a specified period of time]," just as a jury must do to find guilt under the California statute. Molitor cites no Wisconsin authority precluding the application of the California Court of Appeal's analysis to the Wisconsin statute, and we are aware of none. We fail to see why allowing jurors to find guilt upon unanimous agreement that three sexual assaults were committed during a certain time period, without requiring agreement as to which three, is any more of an infringement of a defendant's right to a unanimous verdict than is allowing them to find guilt based upon unanimous agreement that a sexual assault occurred, without requiring agreement as to which one of six acts were committed during the two-hour period of the assault. See Lomagro, 113 Wis.2d at 598, 335 N.W.2d at 592.
We therefore reject Molitor's claim that § 948.025(2), STATS., is unconstitutional on its face.[4]
b. Withdrawal of No Contest Plea
*424 [4,5]
Molitor claims that he should be allowed to withdraw his no contest plea because he did not understand the charge against him, and thus the plea was not knowing and voluntary.[5] The trial court found that the colloquy at Molitor's plea hearing was deficient, and the State concedes the point. Thus, the burden to show by clear and convincing evidence that his plea was knowing and voluntary shifts to the State. State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12, 26 (1986). The State may rely on any evidence in the record to substantiate that Molitor's plea was knowing and voluntary, including his testimony and that of his counsel at postconviction proceedings. See id. at 274-75, 283, 389 N.W.2d at 26, 30.
The record supports Molitor's claim that he was not informed at the plea hearing of the elements of § 948.025(1), STATS., and that his trial counsel did not specifically recall reviewing the elements with him. The record also provides support, however, for the State's position that Molitor did, in fact, understand the charge to which he pleaded. At the postconviction hearing, the State presented testimony from a detective who had interviewed Molitor at the time a complaint was being prepared by the prosecutor. The detective produced a transcript of the taped interview, during which he told Molitor:
Okay I explained to you what the charge is it's ... the fact that you did the same thing with the same girl more than three times according to the information *425 I have at this time. Okay. And I think it's much, much more than three times from my calculations.
At the preliminary hearing, the prosecutor asked the victim if she had intercourse with Molitor "[m]ore than three times" at her residence, and she answered "yes." On cross-examination, she testified that she had intercourse with Molitor on" [m]ost of the days" during the time period charged. Molitor himself testified at the postconviction hearing that the detective had told him he was being charged with only "one count" and that he "wasn't quite as shocked as if he would have said, you know, four years times forty counts." And, although he testified that he wasn't "sure" if the detective had told him the charge required "sexual contact with [the] victim . . . at least three times" Molitor did recall being told he could have been charged with "fifty counts of child sexual assault" instead of "the one repeat count."
The trial court summarized its findings regarding Molitor's knowledge of the charge as follows:
[A]s I listen to the testimony of [trial counsel] and to [the detective], as well as the testimony of Mr. Molitor, I am satisfied that there has been a clear and convincing showing that Mr. Molitor did, in fact, know and understand the elements of the offense to which he was pleading. . .. It's also established through [the transcript of Molitor's interview with the detective] that, from the outset, he was well aware that he was being charged with one offense when, in fact, he had committed many and could have been charged separately for each of those offenses.
*426 [6,7]
Even though the issue of whether a plea is knowing and voluntary is a question of constitutional fact, reviewable de novo on appeal, a trial court's findings of evidentiary or historical facts may only be upset on appeal if they are contrary to the great weight and clear preponderance of the evidence. Bangert, 131 Wis. 2d at 283-84, 389 N.W.2d at 30. Molitor's challenge to the trial court's finding that he was aware of the nature of the charge fails to meet this test. And, since the inquiry on review is directed to "whether the defendant received real notice of the nature of the charge," rather than to a "`ritualistic litany' of formal elements," we conclude the State has met its burden in showing that Molitor's plea was knowing and voluntary.[6]See id. at 282-83, 389 N.W.2d at 30 (quoted source omitted).
We thus affirm the denial of Molitor's postconviction motion and the judgment convicting him of violating §948.025 , STATS.
By the Court.Judgment and order affirmed.
NOTES
[] Petition to review denied.
[1] Section 948.025, STATS., provides:
(1) Whoever commits 3 or more violations under s. 948.02 (1) or
(2) within a specified period of time involving the same child is guilty of a Class B felony.
(2) If an action under sub. (1) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations occurred within the time period applicable under sub. (1) but need not agree on which acts constitute the requisite number.
[2] The State also argues that Molitor's plea constitutes a waiver of his right to a jury trial, and hence, a waiver of the right to a unanimous verdict. Therefore, the State argues he should not be heard to complain that the statute deprives him of a right he did not choose to exercise. We agree with Molitor, however, that this argument adds nothing to the State's first waiver argument: All pleas of guilty or no contest necessarily constitute waivers of the right to a jury trial, but they do not waive the right to challenge the facial validity of a criminal statute. See State v. Olson, 127 Wis. 2d 412, 420, 380 N.W.2d 375, 379 (Ct. App. 1985).
[3] Section 948.025, STATS., was created by 1993 Wis.Act 227, § 30, published April 22, 1994.
[4] Molitor hypothesizes that, given the statute of limitations for the offense, § 939.74(2)(d), STATS., a defendant could be charged under § 948.025, STATS., for three assaults spanning a period of sixteen years and occurring up to twenty-five years in the past. Molitor, however, was charged with the offense for a two month period immediately preceding his arrest. Moreover, as we have discussed, we review his challenge as an attack on the facial validity of the statute, not its application to his or any specific circumstances. We do not address whether the application of the statute under certain circumstances may be amenable to challenge on constitutional grounds.
[5] Section 971.08(1)(a), STATS., requires a court to determine that a plea of guilty or no contest is "made voluntarily with understanding of the nature of the charge and the potential punishment if convicted."
[6] Molitor also argues that his plea was not knowing and voluntary because his counsel did not advise him of the possible constitutional infirmity of § 948.025, STATS. Since we have considered the constitutional claim and have concluded that the statute does not violate Molitor's right to a unanimous verdict, Molitor's plea is not vulnerable on this ground. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334689/ | 219 Va. 404. (1978)
CHARLES LEWIS ELLISON
v.
COMMONWEALTH OF VIRGINIA
Record No. 771488.
Supreme Court of Virginia.
October 6, 1978.
W. Thomas Knowles (J. Wayne Sprinkle, on brief) for appellant.
Robert E. Bradenham, II, Assistant Attorney General (Marshal Coleman, Attorney General, on brief) for appellee.
Present: All the Justices.
Testimony concerning third party confession properly excluded under hearsay rule when content of confession is untrustworthy; exclusion does not deny due process.
Defendant's confession to robbery and murder was taped by undercover agents and played before the Jury. During the trial, and out of the presence of the Jury, defendant proffered testimony relating to a third party confession to the crimes charged. This evidence was excluded under the hearsay rule. Defendant was convicted of both crimes charged and argues on appeal that the testimony proffered was improperly excluded because the third party confession was a declaration against penal interest with proof of reliability not required and, even if reliability must be established, it was established in this instance. He also argues he was denied due process by exclusion of the testimony because denied a fair opportunity to defend against the Commonwealth's charges.
1. While a declaration against penal interest is recognized as an exception tothe hearsay rule, such a declaration made out of court by a dead or otherwise available witness is admissible only upon a showing that the declaration is reliable. Once it is established that a third party confession has been made, the crucial issue is whether the content of the confession is trustworthy. Determination of this issue turns upon whether there is anything substantial other than the "bare confession" to connect the declarant with the crime. Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923); Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950) distinguished.
2. Because the proffered testimony showed only a bare confession the testimony was inadmissible under the hearsay rule. The facts contained in the third party confession were not of such a unique character that they would have been known only by a perpetrator of the crimes, the declarant being able to resort to street information as readily as defendant claims that he did in allegedly falsifying the story of his involvement in the crimes to impress the undercover agents in the hope they would employ him. Only the testimony of the witness whose evidence was proffered supports the declaranths purported confession.
3. Excluding the witnesses' testimony concerning declarant's confession does not deprive defendant of due process by denying him a fair opportunity to defend, defendant not complaining he was denied the right to cross-examine the declarant and not having been refused the opportunity to introduce testimony concerning a third party confession supported by considerable assurance of its reliability. Chambers v. Mississippi, 410 U.S. 284 (1973) distinguished.
Appeal from a judgment of the Circuit Court of the City of Portsmouth. Hon. Robert F. McMurran, judge presiding.
Affirmed.
CARRICO
CARRICO, J., delivered the opinion of the Court.
The defendant, Charles Lewis Ellison, was convicted by a jury of robbery and murder and, in accordance with the verdicts, he was sentenced to serve two life terms in the penitentiary. The defendant seeks reversal on the ground that the trial court erred in refusing to permit a witness to testify before the jury that a third party had confessed to the robbery and murder with which the defendant was charged.
The record shows that on September 10, 1976, Ernest Marks, night manager of "Carma's Chicken" in Portsmouth, was mortally wounded by a shotgun blast during the course of a robbery committed by three assailants. In the robbery, Marks' credit cards,$100 in cash, and a radio were stolen.
On November 16, 1976, as part of an undercover "fencing" operation, agents of the Federal Bureau of Investigation purchased several of the credit cards which had been stolen from Marks. This transaction led to a meeting on December 10 between the defendant and two of the agents, who posed as members of the underworld interested in employing the defendant as a "hit man" and in helping him "to get out of the area" to avoid arrest for an attempted bank robbery. In a conversation recorded by the agents, the defendant admitted that he was the "trigger man" in the robbery and murder of Ernest Marks. Subsequently, the defendant was arrested and charged with the Marks crimes.
At trial below, the tape containing the defendant's confession was played before the jury. Later, testifying in his own behalf, the defendant repudiated his confession. He stated that, from information he "heard on the street," he had falsified the story of his involvement in the Marks robbery and murder to induce the purported underworld figures to employ him and "help [him] get out of town."
Out of the presence of the jury, the defendant proferred testimony relating to the third-party confession in dispute here. Karen Hampton testified that in November, 1976, following her arrest on charges unrelated to the Marks robbery and murder, she was asked by the police whether she knew anything concerning the Marks incident.
According to Hampton's testimony, she told the police that on November 1, shortly before her arrest, she had met Joseph Brown and a companion on the street and that the pair had tried to sell her a radio. When she asked Brown "what was happening," he replied that the police were "after him again" because he was "supposed to have splattered some [man] across the street" at Carma's. Brown, Hampton testified, complained that "[we] didn't get but a lousy hundred dollars and this radio." Brown also told her, Hampton said, that the police had talked to someone named Betty and that he was concerned about "what she was going to do."
Diane Flythe testified that she had observed Hampton conversing with Brown on November 1. Flythe stated, however, that she had not overheard the conversation.
James Backus, an attorney, testified that, based upon Karen Hampton's information, the police had arrested Joseph Brown and charged him with the Marks robbery and murder. Backus, who had been appointed to represent Brown in connection with the charges, testified further that the general district court had certified Brown to the grand jury; that Brown had been indicted; and that, when the Commonwealth's Attorney learned of the present defendant's confession to the FBI agents, the charges against Brown were nolle prossed. Backus stated also that Brown had denied complicity in the Marks robbery and murder. Finally, Backus, as well as others called by the defense, testified concerning the unavailability of Brown as a witness at the defendant's trial.
Holding that the defendant had failed to establish the reliability of Brown's confession and, accordingly, that the testimony relating thereto was barred by the hearsay rule, the trial court refused to permit Karen Hampton to testify before the jury. This refusal, the defendant contends, was error.
The defendant argues that Brown's confession was a declaration against penal interest and that, in Virginia, such a declaration by a dead or otherwise unavailable witness is admissible as an exception to the hearsay rule. Proof of the reliability of Brown's confession was not required, the defendant maintains, and the "bare confession," therefore, should have been submitted to the jurors "for what they might consider it worth."
In Hines Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), this court, adopting a rule admittedly "out of line with the current of authority," held that evidence of an extra-judicial confession, exculpatory of the accused and made by a dead or otherwise unavailable witness, is admissible as an exception to the hearsay rule. Accordingly, we reversed a murder conviction and ordered a new trial to permit jury consideration of evidence relating to such a confession. Later, in Newberry Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950), upon the precedent of Hines, we reversed another murder conviction for the trial court's refusal to admit similar evidence.
Although Hines and Newberry recognize a declaration against penal interest as an exception to the hearsay rule, neither case stands for the proposition, asserted by the defendant here, that a "bare confession" is admissible without supporting proof of its reliability. Indeed, we believe both cases stand for the contrary proposition.
While this court did state in Hines that it was "disposed to think that the evidence of even a bare confession by a deceased or unavailable witness ought to go to the jury for what they may consider it worth," this view was not adopted. Instead, because the decision to recognize a declaration against penal interest as an exception to the hearsay rule was contrary to "the current of authority," this court expressly limited the precedential effect of its holding to "the particular facts of the case in hand." 136 Va. at 747, 117 S.E. at 848. Its "new rule" with reference to declarations against penal interest, the court stated, would be applicable to cases "where there is anything substantial other than the bare confession to connect the declarant with the crime." 136 Va. at 748, 117 S.E. at 849.
The "particular facts" of Hines showed that only one person had committed the murder there involved and that the third-party declarant had confessed separately to three witnesses that he was the murderer. In one statement, the declarant expressly exonerated the accused by name. In addition, other evidence extrinsic of the confessions connected the declarant with the crime.
Similarly, in Newberry, we limited the holding to "the facts and circumstances of [that] case." 191 Va. at 462, 61 S.E.2d at 326. Those facts and circumstances showed that a brother of the accused had confessed in writing that he alone had committed the murder with which the accused was charged. The declarant had also stated to two witnesses that he was the murderer. In addition, other evidence incriminated the declarant.
Thus, we beliedve it is settled in Virginia that, while a declaration against penal interest is recognized as an exception to the hearsay rule, such a declaration made out of court by a dead or otherwise unavailable witness is admissible only upon a showing that the declaration is reliable. We make no attempt here to delineate the quality or quantity of evidence necessary to establish reliability; the question must be left to the sound discretion of the trial court, to be determined upon the facts and circumstances of each case. But, in any case, once it is established that a third-party confession has been made, the crucial issue is whether the content of the confession is trustworthy. And determination of this issue turns upon whether, in the words of Hines, the case is one where "there is anything substantial tother than the bare confession to connect the declarant with the crime."
We reject, therefore, the defendant's contention that Brown's "bare confession" should have been submitted to the jury. The defendant argues, however, that, even if he was required to establish the reliability of the confession, he satisfied the requirement.
In this connection, the defendant argues that "it must be remembered that Hampton's testimony had been reliable enough in Brown's case to have the... General District Court find probable cause against him for the instant charges and to have him indicted for the charges." The Commonwealth, the defendant says, relied on Hampton's testimony "in each instance" and, furthermore, in general district court, Hampton was under oath and subject to cross-examination. In addition, the defendant asserts, Diane Flythe observed Hampton conversing with Brown at the time Hampton claimed that Brown had confessed.
Although this argument is difficult to understand, we take it to mean that the matters therein recited corroborate the fact that Brown had confessed to Hampton, that Hampton, therefore, was a reliable witness and, accordingly, that the reliability of Brown's confession was thereby established. If this is the defendant's argument, it misses the point. The issue is not whether Brown actually confessed to Hampton or whether she was a reliable witness; we can assume that both these matters were established. The issue is whether the content of Brown's confession was reliable, and, in resolving this issue, we search the record for indicia of trustworthiness in the form of evidence from other witnesses that Brown confessed to them, extrinsic evidence connecting him with the Marks crimes, or a satisfactory combination of both. Upon this issue, it is irrelevant that Diane Flythe may have observed Hampton and Brown conversing or that the general district judge and the grand jury may have credited Hampton's story sufficiently to hold Brown for the crimes. These matters, therefore, furnish no indicia of the trustworthiness of Brown's confession.
Even so, the defendant argues, the trustworthiness of Brown's confession was otherwise established by "some of the Commonwealth's evidence." This evidence, the defendant says, "corroborated facts alleged in Brown's declaration." The defendant asserts that Brown's admission to Hampton that he "splattered" some man at Carma's was corroborated by medical evidence that Marks died of a shotgun blast; that Brown's statement that he obtained only a radio and $100 was confirmed by evidence that a similar radio and a like amount of money were stolen from Marks; and that Brown's concern about what someone named Betty was "going to do" was supported by the fact that, at trial, the Commonwealth called a witness named Betty, who worked at Carma's.
This recitation shows, of course, that Brown had some knowledge of the incident at Carma's. But, as the defendant himself testified in repudiating his own confession, the details of the incident were well known "on the street." The facts contained in Brown's confession, therefore, were not of such a unique nature that they would have been known only by an actual perpetrator of the Marks crimes. Brown, if he desired to fabricate a story to impress Hampton, could have resorted to "street" information as readily as the defendant claimed he had done in falsifying the story of his involvement in the Marks crimes to impress the undercover agents in the hope they would employ him.
Thus, in the final analysis, only the testimony of Karen Hampton supports Brown's supported confession. So far as the record shows, Brown confessed to no other witness, and no extrinsic evidence connects him with the robbery and murder of Marks. This is not a case where, in the words of Hines, "there is anything substantial other than the bare confession to connect the declarant with the crime." Because the proffered testimony showed only a "bare confession," the testimony was inadmissible under the hearsay rule.
But, the defendant argues, to apply the hearsay rule so as to refuse him the right to present Karen Hampton's testimony before the jury would be violative of due process of law because the refusal would deny him a fair opportunity to defend against the Commonwealth's charges. This fair opportunity to defend, the defedant maintains, nrequires that an accused be permitted to introduce at trial "any evidence which is exculpatory in nature."
In this argument, the defendant relies upon Chambers Mississippi, 410 U.S. 284 (1973). There, in a murder prosecution, the trial court, pursuant to a Mississippi rule barring the admission of declarations against penal interest *, had refused to admit evidence of a third-party confession. Stating that "the hearsay rule may not be applied mechanistically to defeat the ends of justice," 410 U.S. at 302, the Court found a denial of due process of law and reversed.
* Citing Hines, supra, the Supreme Court noted that Virginia was one of only four states which recognize a declaration against penal interest as an exception to the hearsay rule. 410 U.S. at 299, n. 17.
But, in Chambers, the Court found that the third-party statements "were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability." 410 U.S. at 300. The third party had confessed to the murder in writing under oath and also had stated to three witnesses that he had committed the crime. In addition, an eyewitness had seen the third party kill the victim, and another witness had observed the third party with a gun in his hand immediately after the shooting.
At trial, chambers was denied both the right to cross-examine the third party, who was present in court, and the opportunity to examine the several witnesses whose testimony would have supported the reliability of the third-party confession. The Court concluded that the refusal of the right to cross-examine the third party, coupled with the exclusion of the testimony of the other witnesses, had deprived the accused of a fair opportunity to defend against the state's charges. Because of the dual nature of this deprivation, the Court found a denial of due process of law.
In the present case, we do not find a similar combination of cricumstances. The defendant does not complain that he has been denied the right to cross-examine the third-party confessor. Neither has the defendant been refused the opportunity to introduce testimony concerning a third-party confession that was supported by "considerable assurance of [its] reliability"; the defendant simply was unable to establish the reliability of Brown's confession. Accordingly, we conclude that the defendant suffered no denial of due process of law in the trial court's refusal to permit Karen Hampton to testify before the jury.
For the reasons assigned, the judgment of the trial court will be affirmed.
Affirmed.
COMPTON
COMPTON, J., dissenting.
In my opinion, the majority of the court today emasculates the third-party-confession rule adopted in Virginia in Hines Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), and followed in Newberry Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950). A new dimension has been added to the former law and, as illustrated in the application of the new rule to the facts of this case, the useful Hines doctrine is diluted as an effective tool in the search for truth in a criminal case.
I agree with my brethren that "it is settled in Virginia that, while a declaration against penal interest is recognized as an exception to the hearsay rule, such a declaration made out of court by a dead or otherwise unavailable witness is admissible only upon a showing that the declaration is reliable." I also agree that the trial court should not admit a "bare confession" unless there is something "substantial other than the bare confession to connect the declarant with the crime." But I do not agree with the ingredient today appended to the Hines rule, viz., that for the declaration to be admissible the trial court must be satisfied that "the content of the confession is trustworthy." In the future, the court says, there must be evidence from more than one witness that the declarant confessed to them, extrinsic evidence connecting the declarant with the crime, "or a satisfactory combination of both." This requirement goes too far. The application of this extra dimension can only result, as it does in this case, in usurpation of the jury's function of determining weight of evidence and credibility of witnesses. The Hines court emphasized the importance of such a consideration at least twice. Stating that third party confessions "ought to go to the jury for what they are worth", 136 Va. at 740, 117 S.E. at 846, the court said: If there be doubt about whether such declarations were actually made, or, if made, were true, such doubts, like any others as to the weight and credibility of testimony, ought to be settled by the jury. It may be true that evidence of extra judicial confessions is susceptible of abuse, but the same thing is equally true as to extra judicial admissions made against pecuniary or proprietary interests, and such admissions are now universally admitted, even when made by third parties to the litigation, if they are material to the issue. If a charge involving the life or liberty of a citizen, and depending solely upon circumstantial evidence, cannot stand the test of allowing the jury to determine from the testimony whether a third party has in fact confessed guilt, and if so whether such confession was true, a conviction ought not to follow. 136 Va. at 740-41, 117 S.E. at 846. The court also noted:
Unfortunately, as all must concede, witnesses sometimes swear falsely, and it cannot be doubted that alleged confessions of crime by third parties may easily be foisted on the courts and juries, but so may alleged admissions in civil cases, as, for example, regarding the location of a corner tree or other real estate controversy. As to both classes of admissions they must be admitted, if at all, because the evidence itself is important to the ends of justice, and because it may be assumed that no man will speak falsely to his own hurt. The truth of the admission itself, and the credibility of the witness who undertakes to repeat the admission, must, like the truthfulness of all other testimony, address itself to and be settled by the jury. 136 Va. at 745, 117 S.E. at 848.
In my view, the disputed evidence in this case should have been admitted because Brown's declaration bore sufficient indicia of reliability and trustworthiness to take it out of the realm of inadmissible hearsay and to bring it within the area of probative evidence to be weighed by the triers of fact. For example, Hampton stated Brown and a companion tried to sell her a radio; a radio was stolen in the robbery. Also, Brown was quoted as saying he was "supposed to have splattered some [man]" at Carma's; the killing was by a shotgun blast. In addition, Hampton said Brown complained "[we] didn't get but a lousy hundred dollars and this radio"; these items were subjects of the theft. Moreover, Brown was said to be concerned about the participation in the prosecution of a "Betty"; a person by that name was employed at Carma's. Furthermore, based on Hampton's testimony, Brown was arrested and charged with the crimes; he was certified by the general district court to the grand jury, upon a finding of probable cause; and he was indicted by the grand jury, upon another finding of probable cause. A declaration buttressed by such circumstances is not a "bare confession" in any sense of that phrase, I submit. the majority's addition of the requirement that the trustworthiness of the content of the confession must be demonstrated to the satisfaction of the trial judge ignores the rationale which supports the creation of an exception to the hearsay rule for declarations against penal interest. As the Hines court recognized, Hearsay evidence is excluded... because it lacks the sanction of an oath and the test of cross-examination, and facilitates the use of perjured testimony... [One] of the exceptions to this rule, universally recognized, is that relevant declarations against interest, where the declarant has since died or otherwise become unavailable as a witness, are receivable in evidence. The basis of this exception to the rule is that the evidence itself is important to the ends of justice, and that the element of self interest affords a reasonably safe substitute for the oath and cross-examination as a guarantee of truth. 136 Va. at 743, 117 S.E. at 847. Thus the mere adoption of the exception recognizes "that a statement asserting a fact distinctly against one's interest is unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently sanctioned, though oath and cross-examintion are wanting." 5 J. Wigmore, Evidence in Trials at Common Law | 1457 (Chadbourn rev. 1974). Once a bare confession is corroborated by evidence connecting the declarant with the crime, the trustworthiness of the content of the confession is presupposed because it is against interest and the weight of the confession and its credibility are issues for resolution by the jury.
In its effort to justify the conclusion that the content of the confession was unreliable, the majority argues that the unique details of the crime were common knowledge "on the street" and thus Brown could have fabricated his statement to Hampton. But that conclusion of untrustworthiness is only one of two permissible inferences to be drawn from these facts. Another equally compelling deduction, disregarded by the majority, is that Brown's confession was true, especially since it furnished the basis for findings of probable cause in two separate judicial proceedings, at one of which the witness Hampton was subject to cross-examination. I would allow the jury to choose between the inferences; the majority has now authorized the trial judge to make the selection.
In my opinion, the unnecessary narrowing of the Hines rule has resulted in a transfer to the trial court of the jury's perogative to weigh the evidence and decide the credibility of witnesses in the area of third-party confessions.
For these reasns, I think the trial court erred in refusing to receive Hampton's testimony in evidence. I would therefore reverse the convictions.
POFF, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568055/ | 139 F.2d 781 (1943)
NACHMAN SPRING-FILLED CORPORATION
v.
KAY MFG. CO.
No. 59.
Circuit Court of Appeals, Second Circuit.
November 18, 1943.
*782 *783 Edmund Quincy Moses, of New York City, and R. W. Lotz, of Chicago, Ill., for plaintiff-appellee.
John J. Sweedler, of New York City (Harry Jacobson, of New York City, of counsel), for defendant-appellant.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
Defendant, in its brief on appeal, argues that, if the patent is invalid, the agreement is void as in restraint of trade, and that therefore we must inquire into the validity of the patent. This contention was not made in the court below; but we do not reject it on that account, since Muncie Gear Co. v. Outboard Co., 315 U.S. 759, 766, 768, 62 S. Ct. 865, 870, 86 L. Ed. 1171, seems to us to hold that regard for "the public interest sought to be safeguarded by the patent statutes, and so frequently present but so seldom adequately represented in patent litigation" requires that an upper court should consider important defenses in such litigation even though not raised in the court below.[1]
In Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S. Ct. 172, 87 L. Ed. 165, the court (to the surprise of the patent bar generally) held that the so-called implied estoppel of a patent licensee, to question the validity of the patent under which he is licensed, is inoperative, even if the estoppel would otherwise be effective under federal or state law, when the license agreement contains a provision fixing prices, since such a provision, should the patent be not valid, will violate the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note. In American Cutting Alloys, Inc. v. General Electric Co., 2 Cir., 135 F.2d 502, 504-505, we recently applied the Sola doctrine where a license agreement contained both a price-fixing clause and an express covenant not to question the validity of the patent.
In the instant case, too, the covenant is express. But here we find it in an agreement, containing no price-fixing clause, which was made by one not a licensee or assignor. That the defendant is not a licensee or assignor may strengthen its defensive position, for reasons we shall note later. It is suggested, however, that the Sola doctrine is inapplicable to an agreement which unreasonably restrains competition but does not fix prices. We cannot agree. True, the court in the Sola case [317 U.S. 173, 63 S. Ct. 173, 87 L. Ed. 165] specifically referred to "the doctrine of *784 estoppel" as being "in conflict with the Sherman Act's prohibition of price-fixing." But the rationale of the opinion is that there can be no valid estoppel to deny the validity of a patent if the estoppel will result in a contravention of federal anti-trust laws. The court concluded its opinion with the statement that "rules of estoppel which would fasten upon the public as well as the petitioner the burden of an agreement in violation of the Sherman Act must yield to the Act's declaration that such agreements are unlawful, and to the public policy of the Act which in the public interest precludes the enforcement of such unlawful agreements. Cf. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 492, 493, 62 S. Ct. 402, 405, 86 L. Ed. 363." As that act renders unlawful not merely price-fixing agreements but all agreements which, in any way, unreasonably restrain competition in interstate commerce, the conclusion is inescapable that the Sola case doctrine applies to any such agreement. The citation in the Sola opinion of the Morton Salt case is significant; for, in the latter case, the court refused to enjoin infringement of a patent the owner of which, the plaintiff, was restraining competition not through price-fixing but by requiring its licensees (the defendant not being one of them) to buy non-patented articles from plaintiff.[1a] We are fully aware that our conclusion may gravely affect many patent licenses, that it may, in many instances remove one of the principal motives inducing the grant of a license. But we think that the logic of the Sola case compels that conclusion.
The agreement here is one by which defendant agreed with plaintiff, a competitor, to cease making and selling, throughout the United States and for thirteen years, a commodity which both parties had theretofore been making and selling. If, disregarding the patent, the effect of the agreement would be unreasonably to restrain competition,[1b] then only the validity of the patent can rescue the agreement from the jaws of the anti-trust laws. Accordingly defendant's covenant acknowledging the patent's validity constitutes, in effect, an undertaking that, if sued by plaintiff for enforcement of that agreement, defendant will not assert the defense that the agreement is illegal. Such a raising-by-one's-boot's-straps undertaking, of course, cannot be enforced.[2]
In the Sola case, the court said that, in its earlier decisions concerning the estoppel of a patent licensee to contest the patent's validity, the rule of estoppel had been applied without discussion, and suggested that, absent a Sherman Act situation, the question may be one of state law.[3] This would seem to mean that such an *785 agreement as that before us is illegal, unless the patent is valid, if, regarding the agreement as one relating to an unpatented commodity, it would be illegal according to State law. By the common law of most jurisdictions, an agreement restricting competition is illegal unless it is "ancillary" to the sale of a business or the like.[3a] In the instant case, the agreement is not thus "ancillary." Accordingly, even if it does not violate the Sherman Act, it may, under the Sola doctrine, be unenforceable, unless the patent is valid.
The agreement here perhaps confronts another difficulty. In most of the cases, decided before Sola, which sustained an estoppel, whether implied or based on an express covenant, the estoppel ran against either an assignor of the patent or a licensee thereunder, and those decisions seemed to have relied on analogies of conveyances or leases of land.[4] But as here the defendant is neither an assignor nor a licensee, the patent-estoppel cases, even as they stood in pre-Sola days, may not be protective of the agreement, and, even assuming that the Sola doctrine is limited to price-fixing agreements, the agreement here may be illegal under the common-law rule as to contracts, not "ancillary," in restraint of trade.
In Pope Mfg. Co. v. Gormully, 144 U.S. 224, page 233, 12 S. Ct. 632, 636, 36 L. Ed. 414 (in a case to which the Sherman Act was inapplicable because the agreement before the court was made and the litigation began prior to the enactment of that statute), the court construed the agreement as one by which the defendant, in consideration of the grant to it by plaintiff of licenses under fifteen patents, agreed not to dispute the validity of or plaintiff's title to, and not to infringe, not only those but fifty other patents;[5] the plaintiff filed a bill seeking an injunction restraining defendant from breaching the agreement as to certain of those patents under which defendant was not licensed; the court affirmed a decree dismissing the bill. Stating that "the real question is whether the defendant can estop himself from disputing patents which may be wholly void, or to which the plaintiff may have no shadow of title," the court went on to hold that, on grounds of public policy, equity must refuse to give specific enforcement (by way of injunction) of such a contract because "it is important to the public that competition should not be repressed by worthless patents." It is true that the court referred to possible overreaching by plaintiff in the making of the contract, but it did not rest its decision on that ground.[6] True, too, the court described the contract as one "not to set up any defense whatever to any suit that may be begun upon 50 different causes of action"; so that it is arguable that the doctrine of that case has no relevance where, as here, the contract relates to but a single patent. Yet that is by no means clear. For the court discussed at length (pages 235, 236 of 144 U.S., page 636 of 12 S.Ct., 36 L.Ed. *786 414) cases holding that one may not legally in a contract agree not to avail himself of a defense, "secured to him on grounds of public policy," even as to a single cause of action arising under that contract.[7] Moreover, the court in the Pope Mfg. case, in stressing the public policy of preventing suppression of competition by "worthless patents," articulated an attitude recently voiced, in even more emphatic terms, by the Supreme Court as presently constituted, in Morton Salt v. Suppiger, supra, B. B. Chemical Co. v. Ellis, supra, and Muncie Gear Co. v. Outboard Co., supra. In Philadelphia Creamery Supply Co. v. Davis & Rankin Bldg. & M. Co., C.C.N.D.Ill., 77 F. 879, 881, the defendant, when granted a license under certain patents, agreed not to contest the validity of certain other patents; there was no suggestion of overreaching, but the court, referring to the Pope Mfg. case, said, in a dictum, that such an agreement "would not possibly be enforceable," with respect to the patents under which the defendant was not licensed.[8]
In United Lens Corp. v. Doray Lamp Co., 7 Cir., 93 F.2d 969, the defendant, in connection with the grant to it of a license under one patent, agreed not to contest the validity of, and not to infringe, another patent;[9] suit was brought to restrain infringement of this latter patent and to enforce the agreement with respect thereto. The court, apparently recognizing the inapplicability of the patent-estoppel doctrine, held invalid the patent in suit, and then, regarding the contract as one to refrain from competition in making or selling an unpatented article, decided that it was not illegal, citing cases relating to "ancillary" *787 agreements, which are obviously not pertinent,[10] and not noting the Pope Mfg. case. In American Specialty Stamping Co. v. New England Enameling Co., 2 Cir., 176 F. 557, 558, and H. D. Smith & Co. v. Southington Mfg. Co., 2 Cir., 247 F. 342, 343, it was said, without discussion, that where, threatened with an infringement suit, a defendant, not obtaining a license, agrees to admit the validity of a patent and not to infringe, he is bound by his agreement; but in neither of those cases was the Pope Mfg. case noted. It may be that, even aside from the Sola doctrine, the agreement in the instant case, under the doctrine of the Pope Mfg. case, is unenforceable, at least in equity.[11]
On one theory or another, it may be that the agreement here cannot bar an inquiry into the validity of the patent. Yet, as this issue was not raised in the trial court, there was no adequate opportunity to present evidence as to whether (a) the agreement does or does not violate the antitrust laws and is legal under State law; or (b) the facts are such that, if violative of neither the anti-trust laws nor any other federal law nor the State law, the agreement does or does not come within the doctrine of the Pope Mfg. case; or (c) if plaintiff fails as to (a) and (b), the patent is or is not valid; or (d) if the patent is invalid and if the agreement is not illegal but comes within the Pope Mfg. Co. doctrine, still plaintiff is entitled to damages at law. Accordingly, we shall not now pass on the question of the patent's validity or that of recovery on the contract, but, "to the end that injustice may not be done," we shall now remand the case to the trial court with directions to vacate the decree and to hear evidence of the kind we have just described.[12]
The case, however, has been fully heard, here and below, on the issue of infringement and breach of agreement, and it will save time if we now decide that issue, assuming for the moment that the patent is valid or, if not, that the agreement is not illegal. The trial court correctly held for plaintiff on that issue of infringement. So crowded is this field that, in the light of the prior art now appearing in the record, the claims must be markedly narrowed, for they disclose a combination, at best not startlingly ingenious, of elements by no means novel in the art. (For that reason, our decision as to the scope of the claims can be of little interest to anyone except the parties to the suit, and we need not enlarge on the details of the claims or those of defendant's device.) However, no matter how narrowly the claims are construed, the defendant may not avoid infringement and breach of its agreement by an absurdly literal interpretation of words which, in ordinary usage, have a broad meaning. Consequently "cord loops" must be interpreted to include wire loops, since "cord" ordinarily includes wire as we speak of "picture cord". Moreover, while, with respect to such a patent as this, the doctrine of equivalence must be most cautiously employed, it is not, even here, so completely without efficacy that defendant can, as it has tried to do, escape infringement and the obligations of its agreement, by adopting contrivances which any mechanic skilled in the art would recognize at a glance to be obvious substitutes for those disclosed in the claims. Defendant's wires are straight throughout the major portion of their length and are therefore "substantially straight." In the patent, the cords or cord loops pass through the "eyes" of the wires, while, in the defendant's device, "hog rings" pass through the "eyes." These differentiated means used by the defendant are of a kind well-known in the art to be almost the precise equivalent of those in the patent. Defendant plainly infringed and violated its agreement (which, for the purposes of this discussion and for the time being, we assume to be valid).
There was no error in the refusal of the trial court to compel plaintiff to elect as between its two causes of action. The *788 two were not inconsistent. The elements of damage for breach of the contract (if valid) and for infringement of the patent (if valid) may well be different; to the extent that they may overlap, the trial court's order was fully protective of defendant.
Reversed and remanded, with directions in accordance with the foregoing opinion.
NOTES
[1] Also pertinent are cases holding that a court should sua sponte raise the question of the illegality of an agreement where the illegality is serious (especially where an important public interest is involved), and that the defense of illegality cannot ordinarily be waived. See, e. g., Oscanyan v. Winchester Repeating Arms Co., 103 U.S. 261, 26 L. Ed. 539; Roberts v. Criss, 2 Cir., 266 F. 296, 302, 11 A.L.R. 698; Fitzsimmons v. Eagle Brewing Co., 3 Cir., 107 F.2d 712, 126 A.L.R. 681; Williston, Contracts (Rev. Ed.) § 1630a; Restatement of Contracts, § 600, comment.
[1a] See, also, B. B. Chemical Co. v. Ellis, 314 U.S. 495, 62 S. Ct. 406, 86 L. Ed. 367.
[1b] In United States v. Socony Vacuum Oil Co., 310 U.S. 150, note 59, at page 226, 60 S. Ct. 811, at page 846, 84 L. Ed. 1129, the court distinguished between §§ 1 and 2 of the Sherman Act, noting that § 1, unlike § 2, relates to contracts and is not confined to monopolies.
[2] See note 1, supra; 66 C.J. 280; 17 C.J.S., Contracts, § 269; Cf. Williston, loc. cit., §§ 811, 1630a, 1751; Restatement of Contracts, §§ 572, 573; Arnold v. National Aniline & Chemical Co., 2 Cir., 20 F.2d 364, 56 A.L.R. 4; 12 Amer.Jur. 683.
[3] The court (317 U.S page 175, 63 S.Ct. page 173, 87 L. Ed. 165) said: "The circuit court of appeals, in holding that petitioner as a licensee was estopped to challenge the validity of the patent, did not say whether it considered that it was applying a rule of federal or of state law, and it cited no decisions of either the federal or the Illinois courts. Where no price-fixing stipulation was involved in the license contract, this rule of estoppel, which was not questioned by counsel, was applied without discussion in United States v. Harvey Steel Co., 196 U.S. 310, 25 S. Ct. 240, 49 L. Ed. 492; cf. Kinsman v. Parkhurst, 18 How. 289, 15 L. Ed. 385. We need not decide whether in such a case the rule is one of local law, cf. Dale Tile Mfg. Co. v. Hyatt, 125 U.S. 46, 53, 54, 8 S. Ct. 756, 758, 759, 31 L. Ed. 683, or whether, if it be regarded as a rule of federal law because the construction and application of the patent laws are involved, it was rightly applied in United States v. Harvey Steel Co., supra. For here a different question is presented whether the doctrine of estoppel as invoked below is so in conflict with the Sherman Act's prohibition of price-fixing that this Court may resolve the question even though its conclusion be contrary to that of a state court."
Kinsman v. Parkhurst, 18 How. 289, 293, 294, 15 L. Ed. 385, involved, as the court there noted, a partnership agreement between joint owners of the patent.
Dale Mfg. Co. v. Hyatt, 125 U.S. 46, 8 S. Ct. 756, 31 L. Ed. 683, held that a decision of the highest court of a state, which had sustained an agreement by which a licensee acknowledged a patent's validity, did not involve a federal question so as to permit review by the United States Supreme Court on writ of error.
[3a] That, if not thus "ancillary," such an agreement is illegal at common law, see, e. g., United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, 282-284, 46 L.R.A. 122; Super-Maid Cookware Corp. v. Hamil, 5 Cir., 50 F.2d 830, certiorari denied 284 U.S. 677, 52 S. Ct. 138, 76 L. Ed. 572; Restatement of Contracts, §§ 515 (e) and 516; 17 C.J.S., Contracts, § 246, p. 629; 36 Amer.Juris. 530, 537; Handler, Cases and Other Materials on Trade Regulation (1937) 150ff; cf. Handler, A Study of The Construction and Enforcement of The Federal Antitrust Laws, Monograph No. 38, Temporary National Committee, Senate Committee Print, 76th Cong., 3d Sess. (1941) 6-7.
[4] See Westinghouse Electric & Mfg. Co. v. Formica Co., 266 U.S. 342, 350, 45 S. Ct. 117, 69 L. Ed. 316.
[5] See the opinion of the Circuit Court in that case, C.C.N.D.Ill., 34 F. 877, 885.
[6] The Circuit Court had indicated that there may have been overreaching by the plaintiff in inducing the defendant to sign the agreement, but concluded its opinion with the statement that "it ought not to be enforced in a court of equity, even if the defendant fully understood and comprehended the force and import of every paragraph of it."
The Supreme Court, referring to the evidence as over-reaching, said (144 U.S. at pages 237, 238, 12 S.Ct. at page 637, 36 L. Ed. 414): "While we are not satisfied that his assent * * * was obtained by any fraud or misrepresentation, or that the defendant should not be bound by it to the extent to which it is valid at law, we are clearly of the opinion that * * * plaintiff has no right to call upon a court of equity to give it the relief it has sought * * * in this suit."
On the same day the court, in infringement suits brought under several of the patents included in the agreement but under which defendant was not licensed, held some of those patents invalid. See 144 U.S. 238, 12 S. Ct. 637, 36 L. Ed. 419, and 144 U.S. 254, 12 S. Ct. 643, 36 L. Ed. 426.
[7] On this point, the court said, in part (pages 234, 235 of 144 U.S., page 636 of 12 S.Ct., 36 L. Ed. 414): "The Reports are not entirely barren of authority upon this subject. Thus in Crane v. French, 38 Miss. 503, [530, 532], it was held that though a party may omit to take advantage of a right, such as the right to plead the statute of limitations, secured to him by law, he could not bind himself by contract not to avail himself of such right if it be secured to him on grounds of public policy. `But there appears to be,' says the court, `a clear distinction between declining to take advantage of a privilege which the law allows to a party, and binding himself by contract that he will not avail himself of a right which the law has allowed to him on grounds of public policy. A man may decline to set up the defense of usury, or the statute of limitations, or failure of consideration to an action on a promissory note. But it would scarely be contended that a stipulation inserted in such a note, that he would never set up such a defense, would debar him of the defense if he thought fit to make it. * * * Suppose, then, an agreement made by the maker of a note that he would not set up the defense of usury. Would an action lie for a breach of that agreement, in case the party should make the defense in disregard of it? It appears not, and the reason is, that the right to make the defense is not only a private right to the individual, but it is founded on public policy, which is promoted by his making the defense, and contravened by his refusal to make it. * * * With regard to all such matters of public policy, it would seem that no man can bind himself by estoppel not to assert a right which the law gives him on reasons of public policy.' There are cases wherein it is held that a promise not to plead the statute of limitations is a good bar, but they are those wherein the promise was made after the cause of action had accrued, and where it was considered by the court as a new promise. There are a few cases, however, which hold that an agreement not to plead the statute, made upon the instrument, or at the time of its execution, may be pleaded as an estoppel. So in Stoutenburg v. Lybrand, 13 Ohio St. 228, it was held that a contract which provides that a defendant in a proceeding for divorce shall make no defense thereto is against public policy, and therefore void."
There is the additional fact that the agreement provided that plaintiff might, on defendant's breach, sue out an injunction against him without notice. But, while the court adverted to that provision as unfair, it did not ground its decision on that unfairness, probably because defendant had been given notice of plaintiff's injunction suit.
[8] In that case the agreement not to contest validity covered both the patent in suit and other patents under which defendant was not licensed. The defendant was licensed under the patent in suit but only as to certain machines; the court held that, although the agreement could not be enforced as to the other patents, it would be enforced as to the patent in suit even as to machines not included in the license.
[9] The parties to the agreement called it a "license," but, as the court noted, in fact it was not; for the defendant, in consideration of licenses under another patent, agreed not to contest the validity of, and not to infringe, the patent in suit, under which defendant was granted no license.
[10] That case was decided before the Seventh Circuit was reversed in the Sola case, and the court made no reference to the anti-trust laws.
[11] The court, in the Pope Mfg. case, left open the possibility of recovery of damages at law for the breach of the agreement.
[12] Benz v. Celeste Fur Dyeing & Dressing Corp., 2 Cir., 136 F.2d 845, 848; United States v. Rio Grande Dam & Irrigation Co., 184 U.S. 416, 423, 424, 22 S. Ct. 428, 46 L. Ed. 619; Estho v. Lear, 7 Pet. 130, 8 L. Ed. 632; Armstrong v. Lear, 8 Pet. 52, 74, 8 L. Ed. 863; Security Mortg. Co. v. Powers, 278 U.S. 149, 159, 160, 49 S. Ct. 84, 73 L. Ed. 236; Pfeil v. Jamison, 3 Cir., 245 F. 119; Finefrock v. Kenova Mine Car Co., 4 Cir., 22 F.2d 627, 634; Wyant v. Caldwell, 4 Cir., 67 F.2d 374; Columbus Gas & Fuel Co. v. City of Columbus, 6 Cir., 55 F.2d 56, 58. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353007/ | 7 Cal. 3d 544 (1972)
498 P.2d 1030
102 Cal. Rptr. 782
PACIFIC TELEPHONE AND TELEGRAPH COMPANY, Plaintiff and Respondent,
v.
FRANCHISE TAX BOARD, Defendant and Appellant.
Docket No. S.F. 22852.
Supreme Court of California. In Bank.
July 13, 1972.
*545 COUNSEL
Thomas C. Lynch and Evelle J. Younger, Attorneys General, James E. Sabine, Assistant Attorney General, and John J. Klee, Jr., Deputy Attorney General, for Defendant and Appellant.
Pillsbury, Madison & Sutro, John A. Sutro, Francis N. Marshall, Noble K. Gregory, Frank H. Roberts and Toni Rembe for Plaintiff and Respondent.
Loeb & Loeb and Frank M. Keesling as Amici Curiae on behalf of Plaintiff and Respondent.
*546 OPINION
PETERS, J.
Defendant Franchise Tax Board (board) appeals from a judgment in the sum of $1,324,591.96 plus interest in favor of The Pacific Telephone and Telegraph Company (Pacific) in this action for a refund of a portion of the franchise taxes paid to the State of California for the year 1960.
The problem presented relates to the interest expense deduction and more specifically the extent to which the interest paid by Pacific and its affiliated corporations should be reduced, in arriving at the interest expense deduction, by dividends received by one of the affiliated corporations from another affiliated corporation (intercompany dividends).
Pacific, a subsidiary of American Telephone and Telegraph Company, a corporation (American), is a member of a group of affiliated corporations engaged in a unitary communications business. At times pertinent to this case this unitary business (Bell System) consisted of American, Pacific and 53 other corporations. Other than Pacific, all of these corporations had their commercial domiciles and principal business operations outside of California. Pacific and three other corporations engaged in business in California. Pacific represents all four in this litigation.
In the year 1959, the dividends received by the members of the Bell System amounted to the sum of $772,122,249. Of the total dividends received the amount of $763,777,655 (intercompany dividends) was received from other members of the Bell System and $8,344,594 was received from other companies who were not members of the Bell System. Of the total intercompany dividends in the sum of $763,777,655, the sum of $95,373,025 was paid by Pacific. Included in the total amount of intercompany dividends was the sum of $2,329,250 received by Pacific from its wholly owned subsidiary, Bell Telephone Company of Nevada (Nevada Bell).
During the year 1959, the Bell System incurred interest expense in the sum of $226,715,715. The deductibility of this interest in determining the "net income" of the Bell System is at the heart of the issue in the instant litigation. Except for a small amount, the board determined that this interest expense was not deductible in arriving at such "net income." The reason for disallowance of interest expense is based on the fact that the dividends, including intercompany dividends, exceeded the interest expense. Pacific paid the taxes attributable to the disallowed interest deduction under protest and then brought the instant action for a refund. The court below, in finding in favor of Pacific's claim, held that the interest expense was a deductible item in arriving at "net income."
*547 INTRODUCTION
Before looking at the statutory provision governing the interest expense deduction it is helpful to consider the general scheme of the franchise tax as it applies to operating income and dividend income of corporations like members of the Bell System, doing business both within and without the State of California.
The measure of the franchise tax due from Pacific, a corporation doing business within the state, is the net income of the preceding year derived from or attributable to sources within this state. (Rev. & Tax. Code, §§ 23151, 25101.)[1]
Since Pacific is a member of a unitary business, doing business both within and without the state, the amount of operating income earned in California by the business is determined by calculating the net operating income of the entire business and then apportioning part to California by applying an apportionment formula pursuant to principles established in Edison California Stores v. McColgan, 30 Cal. 2d 472 [183 P.2d 16]. (Safeway Stores, Inc. v. Franchise Tax Board, 3 Cal. 3d 745, 748 [91 Cal. Rptr. 616, 478 P.2d 48].) The apportionment formula resulted in a percentage of 10.3422 in this case, and the percentage is not disputed. The amount of operating income attributable to California is arrived at by multiplying the net operating income of the entire business of the Bell System by that percentage.
In addition, dividend income may be included in the computation of income. (§ 24271.) (1) As we pointed out in Safeway, "the franchise tax is to be measured only by that portion of the corporation's income which had its `source' in California. However, the `source' of dividend income is the stock upon which the dividend was paid, and the taxable situs of the stock is generally held to be at the domicile of the owner of the stock. (See Miller v. McColgan (1941) 17 Cal. 2d 432, 437-440 ...; Robinson v. McColgan (1941) 17 Cal. 2d 423....)" (3 Cal.3d at p. 749, fn. 3.) Under the doctrine of mobilia sequuntur personam dividend income from securities is specifically applicable to the domicile of the owner of the stock.[2] (Fibreboard Paper Products Corp. v. Franchise Tax Bd., 268 Cal. App. 2d 363, 367 [74 Cal. Rptr. 46]; Southern Pacific Co. v. *548 McColgan, 68 Cal. App. 2d 48, 53-56 [156 P.2d 81].) Thus, dividend income will not be allocated in relation to the operations of the corporation owning the shares but is attributed to the domicile. In other words, there is no apportionment of the dividend income as exists with respect to operating income where part of the income is attributed to one state and part to another, depending upon the extent of operations; dividend income is taxable on the basis of domicile of the shareholder.
THE GENERAL OPERATION OF SECTION 24344
The basic provision we are called upon to construe by the parties is the phrase "interest and dividend income ... not subject to allocation by formula" as used twice in section 24344. Section 24344 at times relevant here[3] provided as follows: "(a) Except as limited by subsection (b), there shall be allowed as a deduction all interest paid or accrued during the income year on indebtedness of the taxpayer. [¶] (b) If income of the taxpayer is determined by the allocation formula contained in Section 25101, the interest deductible shall be an amount equal to interest income subject to allocation by formula, plus the amount, if any, by which the balance of interest expense exceeds interest and dividend income (except dividends deductible under the provisions of Section 24402) not subject to allocation by formula. Interest expense not included in the preceding sentence shall be directly offset against interest and dividend income (except dividends deductible under the provisions of Section 24402) not subject to allocation by formula."[4]
*549 In view of the complexity of the section, it is helpful to consider at the outset how the subsection operates in a situation not involving intercompany dividends. It must first be observed that subsection (b) only comes into play if the "income of the taxpayer is determined by the allocation formula contained in Section 25101," and this makes clear that we are only concerned with corporations which are engaged in multi-state operations, i.e., corporations which do business both within and without California and perhaps a corporation which is part of a unitary business conducted by it and affiliated corporations within and without California.[5]
Under subsection (b), it may be said that there are four steps in calculating the allowable interest expense. First, a deduction for interest expense is permitted to the extent that there is interest income subject to allocation by formula. In other words, interest expense is first used to cancel out interest income subject to allocation by formula.[6] This first step is not in issue in the instant case, and will not be considered in the remainder of this opinion.
The second step is to ascertain the amount of "interest and dividend income ... not subject to allocation by formula." Under the first sentence of subsection (b), an amount of interest expense equal to that amount of income, is disallowed as a deduction. This is because the sentence only allows as a deduction the amount of expense that "exceeds" the described amount of income.
The third step is to allow as a deduction any excess interest expense, i.e., the amount of interest expense, if any, which "exceeds" the described amount of income.
The fourth step is that set forth in the second sentence of subsection (b). This provides that interest expense not allowed by the preceding sentence shall be offset against "interest and dividend income ... not subject to allocation by formula." The latter income is exactly the same income *550 referred to in step 2. Accordingly, the amount of interest expense equal to "interest and dividend income ... not subject to allocation by formula" is allowed as an offset against the described interest and dividend income.
Another way of describing the operation of the last three steps is that interest expense must first be used to offset the quoted interest and dividend income and the remaining interest expense, if any, may be used to reduce net operating income.
To further explain the operation of subsection (b), it would seem desirable to start with an illustration of the subsection in a context where its operation is not disputed by the parties. Let us assume that a corporation has $10 net operating income from sources both within and without the state prior to the deduction of interest expense. Under the formula approved in Edison California Stores v. McColgan, supra, 30 Cal. 2d 472 (dealing with how this income is to be apportioned to California and other states), 30 percent of the income is apportionable to California. In addition, the corporation owned some stock in corporations not engaged in a unitary business, which provided dividends totalling $5. Finally, assume that interest expense incurred by the corporation totalled $2.
Given the illustration, the important question then arises as to whether the interest expense is deductible from the operating income or from the dividend income. The importance of this determination may be illustrated by the following calculations of net taxable income as to a domiciliary corporation.
TABLE I
Interest Expense Deductible From Operating Results
Net operating income prior to interest expense ...... $10.00
Interest Expense .................................... 2.00
______
Net operating income ................................ $ 8.00
30 percent attributable to California ...................... $2.40
Dividend income ............................................ 5.00
_____
Net Taxable Income ......................................... $7.40
=====
*551 TABLE II
Interest Expense Deductible From Dividend Income With the Balance of
Interest Expense, If Any, Deductible From Operating Income
Net operating income prior to interest expense ......... $10.00
30 percent attributable to California .................. $3.00
Dividend income ........................................ 5.00
Interest expense ....................................... 2.00
______
Net Investment Income .................................. 3.00
_____
Net Taxable Income ..................................... $6.00
=====
It is apparent from Tables I and II that the net income subject to tax will vary greatly (between $7.40 and $6 in the illustration) depending upon whether the interest expense is deducted from operating income or from investment income. This is due to the fact that only part (30 percent in the illustration) of the operating income and expenses is taken into account in determining the net income; whereas all of the income from dividends and interest (the investment income) is taken into account in computing the net income. To put the matter another way, if the interest expense is to be deducted from the operating income rather than from the dividend income, the taxpayer will lose 70 percent of the deduction.
None of the parties dispute that Table II reflects the proper result under subsection (b).
It is apparent that, when viewed in the light of a domiciliary corporation, subsection (b) does not deprive the taxpayer of any of its interest deduction but is merely an attempt to provide how the interest expense shall be allocated as between income from operations and income from investments. Further, the allocation of interest expense is very favorable to the domiciliary corporation in limiting the loss of the interest expense deduction which might otherwise occur.
The foregoing points up the logic upon which the subsection is based. This is rather simple to state in a general fashion. In essence, once we get beyond step one above (the cancellation of interest income appearing in the operations calculation) interest expense shall be deducted from investment income so far as possible rather than income from operations, and only the excess interest expense shall be used to offset income from operations.
In treating interest expense as the opposite of investment income (interest and dividend income), the subsection is obviously approaching the *552 problem presented in a reasonable manner. Interest expense is the opposite of interest income, and dividend income is sufficiently analogous to interest income that it is reasonable to provide for the offset of interest expense against dividend income. (This is not to say that another treatment of the interest expense would be unreasonable; the only point is that the approach of the Legislature was not unreasonable.)
When we turn to a foreign corporation doing business both within and without the state, receiving dividends from other corporations, and having interest expense, it is apparent that under the principle of mobilia sequuntur personam the dividends received by the foreign corporation are viewed as received at its domicile and such dividend income is not taxed in California. The dividend income is not taxable in California whether or not the dividends are paid by a corporation engaged in the same unitary business as the parent and whether or not the dividend-paying corporation engaged in a different business is a subsidiary.
Since the dividends are not taxable in California, the foreign corporation, unlike the domiciliary, will generally favor exclusion of dividends from the statutory phrase "interest and dividend income ... not subject to allocation by formula." Using the figures of the prior illustration, the point may be illustrated as follows:
TABLE III
Dividends Excluded From the Quoted Phrase
Net operating income prior to interest expense ....... $10.00
Interest Expense ................. $2.00
Less dividends included
in the quoted phrase ............ 0.00
_____
Deductible Interest Expense .......................... 2.00
_____
Net Operating Income ................................. 8.00
30 percent attributable to California ...................... $2.40
This is the position favored by Pacific in general. It is Pacific's position at least as to all of the dividends, other than those paid by Nevada Bell ($2,329,250) to Pacific and those paid by nonmembers of the Bell System ($8,344,594), namely, Pacific's position at least as to $761,448,405 of dividends.
*553
TABLE IV
Dividends Included in the Quoted Phrase
Net operating income prior to interest expense ....... $10.00
Interest Expense ................ $2.00
Less dividends included
in the quoted phrase ............ 5.00
_____
Deductible Interest Expense ............................ 0.00
______
Net Operating Income .................................. $10.00
30 percent attributable to California ......................... $3.00
Table IV represents the board's position except as to the effect to be given to the Nevada Bell dividends. (The effect to be given to the Nevada Bell dividends as it relates to the interest expense deduction will be considered at the end of this opinion.)
CONTENTIONS AS TO CONSTRUCTION OF PHRASE "INTEREST AND DIVIDEND INCOME ... NOT SUBJECT TO ALLOCATION BY FORMULA"
Two different constructions of subsection (b) are offered to exclude the dividends at issue from the term "interest and dividend income ... not subject to allocation by formula." First, it is suggested that the dividend income referred to is only taxable dividend income. Second, it is asserted that intercompany dividends should be excluded where the corporations paying and receiving the dividends have filed a combined report of operating income. The two contentions would reach different results on the facts of the case. Under the taxable income approach, all dividends but the Nevada Bell dividends would be excluded from "dividend income." Under the intercompany dividend approach, all dividends received from the Bell System would be excluded but not the $8,344,594 of dividends received from others. Nevertheless, the parties often put the contentions together.
(2a) We reject both constructions of the statute and agree with the board that intercompany dividends whether taxable or not and whether a combined report is used or not come within the phrase "interest and dividend income ... not subject to allocation by formula."
INCLUSION OF NONTAXABLE DIVIDENDS IN THE SUBSECTION (b) COMPUTATION
Dividends received by a foreign corporation come within the literal language of subsection (b). Although these dividends are not taxable income, taxable income is not the term used by the subsection. This conclusion *554 is reinforced because there is an exception, placed in parentheses, in both sentences of the subsection of certain dividends, which are not taxed, i.e., "dividends deductible under the provisions of Section 24402." The inclusion of this exception is unnecessary if all nontaxable dividends are to be excluded from the computation.
Not only do the dividends discussed come within the language of the subsection but they come within the logic of the subsection, which, as we have seen, is to offset interest expense so far as possible against investment income. When a corporation of the Bell System not domiciled in California receives a dividend from General Motors, the dividend must be considered investment income, and this is true even though the dividend is not taxed in California.
The third reason that we should not read the qualification of taxable income into the subsection is that otherwise there may be a loophole. A foreign corporation could avoid all taxes in California merely by increasing its borrowing to create an interest deduction and then purchasing stocks which pay dividends. Since under the principle of mobilia sequuntur personam, the dividends will not be taxed, the corporation would have created a deduction for the interest expense without the offsetting income. To avoid the loophole, the deduction must be reduced by the income even though the income cannot be taxed in California.[7]
A fourth reason, although perhaps not a strong one alone, for refusing to limit dividends to taxable dividends, is the phraseology of the section. It was pointed out above that as to a domiciliary corporation the subsection is not a limitation on interest expense but merely establishes a method to allocate the expense. Nevertheless the phraseology of the subsection is that of limitation, and this indicates that in some situations the subsection must act as a limitation on the amount of interest expense. The limitation view is reinforced because of a letter to former Governor Knight by the board prior to his signing the legislation before us which states that the addition of the provision before us will increase taxes on foreign corporations while reducing those of domestic corporations.
*555 Inclusion of nontaxable dividends in the subsection (b) computation does not mean that California is taxing dividends of a foreign corporation contrary to the doctrine of mobilia sequuntur personam. The dividends are not being taxed. They are being used to offset or reduce the interest expense deduction, and, as pointed out above, it is not unreasonable to use investment income to offset investment expense. Indeed inherent in Pacific's position is an apportionment of the interest expense to offset income which is not to be taxed in California. Even under Pacific's approach, only 10.3422 percent of interest deduction will be used to offset income attributable to California, which, of course, is 10.3422 percent of the total income of the Bell System.
(3) In other words, since the California franchise tax is measured by net income derived from or attributable to sources within this state (§ 25101), both income and expenses must be apportioned between sources within the state and sources without the state where the corporation is engaged in activities within and without the state. The apportionment of expenses to offset income from sources without the state does not mean that the out-of-state income is being taxed so long as it is not unreasonable to use the expense to offset the out-of-state income. California uses two methods to apportion the income, one for operating income and another for dividend income, and it is not unreasonable to view interest expense as investment expense and require that the interest expense be used to offset the investment income, the interest and dividend income. This is true whether or not the investment income is included in the measure of the California tax. Accordingly, the requirement that dividend income, whether or not included in the measure of the tax, be used to offset or reduce the interest expense deduction does not mean that the dividend income is being taxed.
It has also been suggested that California is not concerned with dividends received by American, which is not a domiciliary of this state, from another corporation, which has no income attributable to California, and that therefore such dividends must be ignored in determining the California tax. At the outset it must be pointed out that the fact that the corporation declaring the dividend does no business in the state points in the direction of tax consequences in California rather than away from such consequences. Under section 24402, dividends declared from income due to California activities are deductible, and subsection (b) in the parenthetical phrase expressly excludes those dividends from the subsection computation. Thus, the dividends which have tax consequences under the franchise tax are those which are not declared from income due to California activities. The point is illustrated by Safeway. The entire latter part of the opinion is concerned with the elimination of dividends declared *556 from income due to California activities so that the dividends declared from out-of-state income may be taxed when received by a domiciliary. It bears repetition in this connection that Safeway involved intercompany dividends. The conclusion is inescapable that the fact that the corporation declaring the dividend did no business in California does not mean that the dividends should have no tax consequences in California.
Although dividends received by a nondomiciliary like American are not taxable in California, it is not true that such dividends are totally unrelated to California. As pointed out above in connection with the discussion of the possible loophole, a foreign corporation should not be permitted to borrow money and build up its interest expense deduction and then receive tax exempt dividends on the basis of investments made with the borrowed money. California has a substantial interest in making sure that income attributable to this state is not distorted by use of the interest expense deduction, and under subsection (b), the dividends received are only taken into account to offset the interest expense deduction. It is fully consistent with our franchise tax to give tax consequences, with respect to the interest deduction, to dividends declared by a corporation which does not do business in California where those dividends are received by a foreign corporation.
(4) For the foregoing reasons, we conclude that we should not read the term "taxable" into the phrase in subsection (b), "interest and dividend income ... not subject to allocation by formula," and that dividends are includable in the subsection (b) calculations whether they are taxable or not.
INCLUSION OF INTERCOMPANY DIVIDENDS IN THE SUBSECTION (b) COMPUTATION
Let us now turn to the claim that dividends received from subsidiary corporations engaged in a unitary business (intercompany dividends) are not included in the quoted phrase of subsection (b). This claim has been made in a variety of ways. The primary basis of the claim is that such dividends are mere intercorporate transfers of funds and do not represent "real" income.
It must be deemed settled that, at the time relevant here, our corporate franchise tax treated such dividends as "real" income subject to taxation where appropriate. (Safeway Stores, Inc. v. Franchise Tax Board, supra, 3 Cal. 3d 745, 749-753.) In Safeway, we determined that dividends received by a domiciliary corporation from subsidiary corporations engaged in a unitary business were includable in the computation of income for tax purposes.
*557 This was the starting point in the case.[8] The problem was phrased differently, namely, whether Safeway should be treated for tax purposes as a single corporation engaged in a unitary business or whether it should be treated as multi-corporations so that intercompany dividends of the corporations engaged in the unitary business would be taxed. In deciding that the latter was the proper treatment, we decided that Safeway, which is a domiciliary, would be taxed for dividends received from subsidiaries to the extent that those dividends were paid by the declaring corporation from portions of unitary income not allocated to California.[9]
Let us return to the illustrations to point up the importance of Safeway and its effect. Assume now that the dividends received of $5 were intercompany dividends rather than dividends from unaffiliated corporations. As to domiciliary corporations, Tables I and II again express the possible results, and again Table II expresses the proper result, so that the net taxable income is $6 rather than $7.40. Under Safeway, we established as to domiciliaries that the intercompany dividends received from subsidiaries are to be treated substantially the same as dividends received from companies which were not part of the unitary group.[10] There is no reason to *558 make a distinction between the two types of dividends because under Safeway they will both be taxed to an equal extent. In view of Safeway, every reason offered to accept Table II in the earlier part of this opinion dealing with dividends of nonaffiliated corporations applies with equal force to intercompany dividends received by a domiciliary.
Actually, the argument is even stronger. In the domiciliary situation, if a distinction is to be made between intercompany and other dividends, it should be made in favor of inclusion of the intercompany dividends in the subsection (b) computation. The only reason to distinguish is that the intercompany dividends do not supposedly represent "real" income, and thus should result in lower taxes than dividends of unaffiliated corporations, which do represent so-called "real" income. The proper way, if this distinction is to be made, would be to provide that the interest expense may be offset against the intercompany dividends but not the unaffiliated corporation dividends because the use of the offset for a domiciliary corporation, as we have seen comparing Tables I and II, has the effect of reducing taxes. In other words, in order to reduce the taxes of domiciliary corporations receiving intercompany dividends in the light of the provisions of subsection (b), we must include those dividends in the phrase "interest and dividend income ... not subject to allocation by formula."
As to the domiciliary corporation, we are satisfied that the term "interest and dividend income ... not subject to allocation by formula" must include intercompany dividends. Otherwise, the taxes of such corporations are greatly and unreasonably increased.
(2b) Once it is concluded that the term "interest and dividend income ... not subject to allocation by formula" includes intercompany dividends in the cases of domiciliary corporations and also includes nontaxable dividends, the same rule must apply to intercompany dividends paid to foreign corporations. There is no language in the section which permits a distinction between the different corporations or the different dividends. The logic underlying the section, to offset interest expense against investment income applies with equal force to all of the corporations and all of the dividends.[11]
*559 ADDITIONAL CONTENTION AS TO THE CONSTRUCTION OF SUBSECTION (b) MADE BY AMICUS CURIAE, FRANK M. KEESLING
It is urged that subsection (b) is applicable only where a single corporation engages in a unitary business both within and without the state and is not applicable where the unitary business is carried out by several affiliated corporations. Amicus points out that section 24344 uses the singular term "taxpayer," not the plural, and urges that when there are several corporations in the group, some may be foreign corporations not doing business within the state, that literally such corporations are not taxpayers, and that their interest expense is not subject to the limitation. Amicus concludes that literally construed subsection (b) is not applicable to the situation where several corporations file a combined report, that there would then be a hiatus in the statutes as to interest expense in this situation, and that we should fill the gap by adopting rules for the interest deduction analogous to those that would be applied to the case of a single taxpayer conducting a unitary business both within and without the state.[12] It is further concluded that, since such a single taxpayer could not receive intercompany dividends, intercompany dividends should be disregarded in computing the interest expense deduction where there is a group of corporations rather than a single corporation conducting the unitary business.
There are several defects in this line of reasoning. First, even assuming that the word "taxpayer" is limited to a corporation which does business within the state, section 24344 could be applied to the multi-corporation situation, and there is no need to resort to the adoption of rules by analogy. The word "taxpayer" appears in both subsections of section 24344, and subsection (a), it will be recalled, is the section which makes interest expense a deduction. Applying "taxpayer" as urged and the balance of the section literally would mean that the only interest expense allowed under subsection (a) would be that of the corporation doing business in California, and according to subsection (b) the only dividends to be used to reduce that interest expense would be those received by the corporation doing business in the state. Thus, all interest paid by corporations which, although members of the unitary group, did no business in California would be entirely ignored and so would the dividends received by those corporations. Interest and dividends which would be recognized in California would then be treated the same as outlined in the earlier part of *560 this opinion. For example, the interest paid by Pacific would be taken into account under subsection (a) as a deduction, and then under subsection (b) dividends received by Pacific would be taken into account to reduce the deduction. The same would be done with American, Western Electric, and Bell Laboratories, each of which does some business in California and therefore would be a "taxpayer." Interest expense and dividend income of the remaining corporations of the Bell System would be entirely ignored.
The argument of amicus must be rejected because even assuming his definition of "taxpayer" were correct, his next premise would not follow. Contrary to his position, the statute could still be applied to the multi-corporation situation, and there would be no need to adopt rules by analogy.
Moreover, even if we were required to resort to analogy, it appears that amicus has chosen the wrong analogy. The problem is whether to analogize to a single corporation conducting a unitary business in several states or to a corporation receiving dividends from unaffiliated corporations. In Safeway, where we were concerned with a unitary business and intercompany dividends for purposes of income, we concluded that those dividends would be treated substantially the same as dividends from unaffiliated corporations and rejected the argument that, since no tax would be due if there was only a single corporation, intercompany dividends should not be taxable. (3 Cal.3d at p. 749.) The same should be true where, as here, we are concerned with intercompany dividends for purposes of calculating the interest expense deduction.[13]
We are satisfied that the argument made by amicus is intrinsically unsound, and it is unnecessary to consider other objections to his argument.
THE NEVADA BELL DIVIDENDS
Although Pacific took a contrary position in the earlier stages of this litigation, it concedes that, in the light of our Safeway decision, it, as a domiciliary corporation, must include in its income the dividends received from its wholly owned subsidiary, Nevada Bell. Those dividends totalled $2,329,250.
Pacific contends that, assuming its position as to intercompany dividends is rejected in other respects, it is entitled to offset this income by interest *561 expense. The computation involved is the fourth step described above; the second sentence of subsection (b) provides that interest expense not allowed as a deduction under the first sentence shall be offset against "interest and dividend income ... not subject to allocation by formula." The board does not dispute that an offset is permissible. The controversy relates to the amount of the offset.
Pacific claims that it may offset the dividend income from Nevada Bell by the entire $226,715,715 interest expense of the Bell System, by Pacific's allocable portion of the entire expense (10.3422 percent of $226,715,715 = $23,447,393) or by the interest actually and directly paid by Pacific, $29,838,722. Under any of the three computations, the dividend income from Nevada Bell will be cancelled entirely.
The board allowed a deduction of $686,949 for interest expense against the Nevada Bell dividends. The board reached this figure on the theory that, since the total interest, which was to be offset by the total dividends under subsection (b), was exceeded by those dividends, a pro rata offset was appropriate. The amount of total interest was approximately 30 percent of the amount of total dividends; thus for each dollar of dividends included in taxable dividend income Pacific was permitted an interest expense deduction of approximately 30 cents.
The second sentence of subsection (b) provides that interest expense "shall be" offset against "dividend income." The term "dividend income," as we have seen, includes all of the dividends whether taxable or not, and the interest expense includes all of the interest whether paid by Pacific or not. Where, as here, the dividends exceed the interest, the pro rata approach of the board is correct.
The judgment is reversed.
Wright, C.J., McComb, J., Tobriner, J., Burke, J., and Schauer, J.,[*] concurred.
Respondent's petition for a rehearing was denied August 9, 1972. Sullivan, J., did not participate therein.
NOTES
[1] Unless otherwise indicated, all statutory references are to the Revenue and Taxation Code.
[2] There is an exception to the general rule to the effect that intangible property may acquire a situs for taxation other than the domicile of the owner if it has become an integral part of some local business. (Holly Sugar Corp. v. Johnson, 18 Cal. 2d 218, 223 [115 P.2d 8].) No claim is made that this exception is applicable in the instant case.
[3] The problem we are confronted with has been largely, if not entirely, eliminated by the enactment in 1967 of section 25106. However, the Legislature recognized that litigation was pending and expressly provided in the section that "it is not intended by enactment of this section that any inference be drawn from it in such litigation."
[4] For purposes of simplicity, we shall ignore in the illustrations and computations which follow the parenthetical phrase "(except dividends deductible under the provisions of Section 24402)" which appears twice in section 24344. Section 24402 permits a deduction of dividends "declared from income which has been included in the measure of the taxes imposed under Chapter 2 or Chapter 3 of this part upon the taxpayer declaring the dividends." The purpose of the deduction "is to avoid double taxation at the corporate level of income which has already been subjected to California taxation in the hands of the dividend-declaring corporation." (Safeway Stores, Inc. v. Franchise Tax Board, supra, 3 Cal. 3d 745, 749-750; italics omitted.)
As illustrated by our Safeway opinion (3 Cal.3d at pp. 753-755, fn. 9), the computation of the section 24402-deduction may become very complicated when the dividend-declaring corporation is a corporation which does business within and without the state or where it is part of a unitary business conducted within and without the state. Because of this complication and because the dividends involved are by definition deductible as well as excluded from the section 24344 computation of the interest deduction, it would unduly complicate, without beneficial results, the illustrations and computations which follow in this opinion. Although the parenthetical phrase will be ignored for the purposes of illustrations and computations that follow, the phrase will be considered for purposes of consideration of legislative intent.
[5] Amicus curiae, Frank M. Keesling, urges that the subdivision has no application to the multi-corporation situation. The argument of amicus will be considered later in this opinion, and it will be assumed in the meantime that the section may apply to multi-corporations conducting a unitary business.
[6] The board states that interest income subject to allocation would be interest income obtained in the course of operations, for example, the interest received by a department store for unpaid charge accounts. Interest income not subject to allocation would include by way of contrast interest from bonds owned by the corporation. No interest income of either type is at issue here.
[7] It has been suggested that the possible loophole would be closed in any event by section 24425 which disallows deductions allocable to one or more classes of income not included in the measure of the tax. (Cf. Great Western Financial Corp. v. Franchise Tax Bd., 4 Cal. 3d 1, 5-6 [92 Cal. Rptr. 489, 479 P.2d 993].) However, subsection (b) deals specifically with the allowability of the interest deduction of corporations which allocate by formula; whereas section 24425 deals with the allowability of deductions generally. Thus, if, contrary to the views expressed herein, subsection (b) were construed as prohibiting the reduction of the interest expense deduction by nontaxable dividends, this construction of subsection (b) might prevail over section 24425.
[8] The balance of the opinion was concerned with the deduction of dividends permitted by section 8, subdivision (h)(1) of the Bank and Corporation Franchise Tax Act (now § 24402), which permitted deduction of dividends "`declared from income which has been included in the measure of the tax imposed by this act upon the ... corporation declaring the dividends....'" (3 Cal.3d at p. 749; italics added.) We pointed out that income of the declaring corporation not attributable to California is not included in the measure of the tax of that corporation when the apportionment formula is applied as to the operating income of the unitary group. We were then concerned with the calculation of the income attributable to and not attributable to California so that the proper proportion of the dividends of the unitary group will be taxed.
Pacific's contention herein is that all dividends of the unitary group should be excluded from the subsection (b) calculation. Subsection (b) itself excludes dividends deductible under the provisions of section 24402. This is the effect of the parenthetical phrase, "(except dividends deductible under the provisions of Section 24402)." Since 24402 dividends are deductible and are expressly excluded from the subsection (b) computation, they will be ignored for purposes of discussing the contention that all intercompany dividends should be excluded from the subsection (b) computation. (It may be recalled that for purposes of simplicity we previously ignored the section 24402 dividends in the illustrations and computations used herein.) (See fn. 4.)
[9] It is helpful to remember that Safeway did not involve a new principle of taxation law but in general affirmed a tax practice followed by the board since 1947 at least.
[10] The computation of the dividend deduction under section 24402 is much more complex as to dividends from members of the unitary group as shown by footnote 9 in Safeway than as to dividends of nonmembers. Nevertheless, the goal is the same: to permit deduction of dividends paid from income taxed in California. It bears repetition that for purposes of simplicity we are ignoring the section 24402 deduction for purposes of the illustrations and computations herein.
[11] This is true only so long as the Legislature views intercompany dividends as income. When the Legislature decides that such dividends are no longer income as it did when it recently enacted section 25106, it is only reasonable to also eliminate such dividends from the subsection (b) computation. This is because the Legislature no longer considers such dividends investment income. The Legislature did exactly that. Section 25106 provides both that intercompany dividends are not income and that they shall be excluded from the subsection (b) computation.
[12] Subsection (b) only applies if "income of the taxpayer is determined by the allocation formula contained in Section 25101,..." This means that the subsection does not come into play at all unless the corporation does business within and without the state.
[13] In support of its construction of subsection (b), Pacific also claims that the multi-corporation engaged in a unitary business should be treated the same as a single corporation engaged in the business. This claim must be rejected for the same reasons that the analogy of amicus is rejected.
[*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567421/ | 10 So.3d 732 (2009)
STATE of Louisiana
v.
Columbus Christopher WILLIAMS, Jr.
No. 2008-K-2842.
Supreme Court of Louisiana.
June 19, 2009.
*733 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567425/ | 10 So.3d 800 (2009)
Carlis GRIFFIN, Individually and on Behalf of her Minor Child, Demario Griffin
v.
Ariel HAMPTON, Raynell Hampton and us Agencies Casualty Insurance Company.
No. 2008-CA-1206.
Court of Appeal of Louisiana, Fifth Circuit.
March 24, 2009.
Daniel E. Becnel, Jr., Kevin P. Klibert, Attorney at Law, Reserve, LA, for Plaintiff/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
EDWARD A. DUFRESNE, JR., Chief Judge.
This is an appeal by Carlis Griffin, plaintiff-appellant, from a judgment dismissing *801 her suit against Ariel Hampton and her insurer, defendants-appellants, in this controlled intersection collision case. For the following reasons we affirm the judgment.
The facts are straightforward. Griffin was traveling east on a divided four lane highway when she approached a controlled intersection. Hampton was traveling west intending to turn left onto the intersecting roadway at the traffic signal. Hampton testified that she made the left turn while the left turn arrow was green and was struck by Griffin as she crossed the oncoming lanes of travel. Griffin testified to the contrary that her light was green when she entered the intersection. Hampton's car spun around and struck a third car, driven by Linton Bergeron. Bergeron at that point was waiting to turn right onto the highway from the intersecting roadway.
Bergeron testified that he was stopped at the intersection waiting for the green right turn arrow right before the collision. He said that when his turn arrow turned green he looked to his left before entering the intersection and noticed that traffic in the left lane of the highway was coming to a stop. He further noticed a black automobile in the right lane which did not appear to be stopping. This was the car being driven by Griffin. When Hampton made her left turn she was struck by Griffin.
Bergeron said that he could not see the lights for either Griffin or Hampton from his vantage point. However, Deputy Sylvan, the investigating officer, testified that after the accident he and two other deputies inspected the lights at the intersection. This inspection showed that the turn arrows for Hampton and Bergeron would both have been green at the same time, and that at that point Griffin would have had a red light. His conclusion was that Griffin's failure to stop at her red light was the cause of the accident.
After a bench trial the judge ruled that Griffin had failed to show by a preponderance of the evidence that her light was green and that Hampton's was red. She entered judgment accordingly, dismissing the suit. This appeal followed.
Griffin's argument here is that the trial judge committed legal error in ruling that La. R.S. 32:122, dealing in general with left turning vehicles, did not apply to a controlled intersection, and fell into manifest factual error in not finding that Hampton had violated this statute. We disagree with both assertions.
La. R.S. 32:122 provides generally that a left turning motorist must yield to oncoming traffic when that traffic constitutes an "immediate hazard" if the turn is executed. At intersections controlled by turning arrows, there is a second applicable statute, La. R.S. 32:232(l)(b), which pertinently provides that when an arrow signal is present and green, a turning driver may cautiously enter the intersection and yield the right-of-way "to pedestrians . . . and to other traffic lawfully using the intersection." In Green v. Nunley, 42343, 42344 (La.App. 2 Cir. 8/15/07), 963 So.2d 486, the court ruled that while there is a presumption that a left turning motorist is at fault in an accident, that motorist may rebut the presumption by showing that the turning arrow was green.
The factual questions for the trier of act here were thus whether Hampton had a green arrow and whether Griffin was "lawfully using the intersection," i.e. proceeding on a green light. As with all factual issues on appeal, the standard of review is that of manifest error. Under that standard, the inquiry is whether a reasonable trier of fact could have made the findings at issue in light of the entire record, and where there are two permissible views of the evidence, the fact-finder's *802 choice between them cannot be manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).
The trial judge stated in her reasons for judgment that Griffin had failed to show by a preponderance of the evidence that Hampton did not have a green arrow when she made her turn. Implicit in this finding is that Griffin had a red light and failed to stop. As shown above, Bergeron testified that his right turn arrow turned green and he observed traffic in the left lane of the perpendicular roadway stopping at the light. He also saw Griffin proceeding in the right lane through the light. Deputy Sylvan testified that if Bergeron had a green right turn arrow then Hampton also had a green left turn arrow and Griffin had a red light. It is certainly reasonable on this evidence to conclude that more probably than not Hampton had a green arrow and was thus not at fault in causing the accident. That being so, we are precluded from setting aside these findings.
For the foregoing reasons, the judgment of the district court in favor of defendants is hereby affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567463/ | 10 So.3d 913 (2009)
Timothy Wayne WALLACE
v.
STATE of Mississippi.
No. 2008-KA-00785-SCT.
Supreme Court of Mississippi.
May 28, 2009.
Tommy Wayne Defer, Water Valley, attorney for appellant.
*914 Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
RANDOLPH, Justice, for the Court.
¶ 1. Timothy Wayne Wallace was indicted on two counts of sexual battery arising from separate incidents involving thirteen-year-old M.W. Following a jury trial in the Circuit Court of Tate County, Mississippi, Wallace was found guilty on both counts and sentenced to twenty years in the custody of the Mississippi Department of Corrections ("MDOC") on each count, to run consecutively. Following denial of his "Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial," Wallace filed a timely notice of appeal.
FACTS
¶ 2. M.W. was born on January 23, 1989. According to M.W., between the ages of thirteen and fourteen, he "was living with [his] granddad, but ... stayed ... with [his] aunt [JoAnne Thompson] a lot."[1] Thompson lived on Yellow Dog Road in Senatobia, Mississippi, along with her daughter, Shanna Ennis, and Ennis's boyfriend, Wallace. M.W. testified that on one occasion, "[m]y aunt had moved out and I was sleeping in [Ennis's] room, and I was watching t.v., and [Wallace] came in there and we got to wrestling around...." According to M.W., Wallace "got on top of me with his knees on my shoulders[,]" and penetrated M.W.'s mouth with his penis. M.W. testified that the entire incident was non-consensual. There were no other witnesses in the room, and M.W. stated that he did not report the incident because "I didn't want anybody to know."
¶ 3. M.W. testified that approximately one or two months later, he accompanied Ennis, Wallace, and Wallace's step-nephew, David Croney, to a local Motel 6 because "[t]he water was out at the house, so we was going to go to [the motel room of M.W.'s father's girlfriend, Ann Outlaw] to take a shower."[2] According to M.W., Wallace and Croney began wrestling, but he was not involved and was merely "sitting right there by [Ennis]." Wallace and Croney then began joking around about slapping M.W. with their penises. M.W. testified that Ennis was encouraging them[3] as Wallace and Croney then "told me they were going to do it, and I got defensive and told them no, they weren't; and that's when [Wallace] told [Croney] to grab me and hold me down." M.W. stated that "[e]veryone was laughing like it was a big joke[,]" as Croney held his arms down and both Wallace and Croney began slapping him with their penises and "rubbing their privates all over my face and sticking it in my ear and in my mouth."[4] After *915 fighting to get loose, M.W. left the motel room and sat in Ennis's car. While unsure of the specific date, M.W. testified that the motel incident occurred "before I turned 14."[5] According to M.W., he did not report the incident because "I was ashamed of what had happened.... [I]t's not something I wanted everybody to know."
¶ 4. Several years later, M.W. reported both incidents to his case worker at Communicare. The case worker then referred M.W. to Tina Turner of the Mississippi Department of Human Services, Family and Children Services, in Panola County, Mississippi. Regarding the alleged timing of the incidents, Turner testified that M.W. "told me he was 13 and right before he turned 14." As to the incident at the house on Yellow Dog Road, Turner's report reflects that M.W. informed her that Wallace had "held him down over the bed and penetrated him from behind with his penis. He stated that this did not work well for [Wallace] so he felt all over him." Regarding the motel incident, Turner's report provides that M.W. "stated Shanna got mad at him and told [Wallace] and [Croney] to hold him down and do things to him.... [M.W.] stated that they held him down and were slapping him in the face with their penises.... [M.W.] stated that [Ennis] just watched them and laughed at him." Based thereon, Turner submitted a report to Tate County law enforcement officials, and Wallace was arrested soon thereafter.
¶ 5. On March 7, 2007, Wallace was indicted on two counts of sexual battery. Count I provided:
[t]hat Wallace ... between the 1st day of January and the 31st day of December, [2003],[[6]] ... did wilfully, unlawfully and feloniously, knowingly and intentionally, engage in sexual penetration with [M.W.], a child under fourteen (14) years of age; and [Wallace] being at that time a person twenty-four (24) or more months older than [M.W.],[[7]] by placing his penis in the anus of [M.W.],[[8]] in direct violation of Section 97-3-95(1)(d)....
Count II stated:
[t]hat [Wallace] and [Croney] ... between the 1st day of January and the 31st day of December, [2003],[[9]] ... did wilfully, unlawfully and feloniously, knowingly and intentionally, engage in sexual penetration with [M.W.], a child under fourteen (14) years of age; and [Wallace] and [Croney] being at that time persons twenty-four (24) or more months older than [M.W.], by holding [M.W.] down and placing the penis of [Wallace] in the mouth of [M.W.], in direct violation of Section 97-3-95(1)(d)....
¶ 6. On January 28, 2008, the jury trial commenced. After the State rested, Wallace moved for a directed verdict, which was overruled by the trial judge. Ultimately, the jury found Wallace guilty on *916 both counts of sexual battery. The circuit court then sentenced Wallace to twenty years in the custody of the MDOC on each count, with "[t]he sentence in Count II[to] run consecutive with the sentence in Count I."
ISSUE
¶ 7. This Court will consider:
Whether the circuit court erred in denying Wallace's proposed Jury Instruction D-3.
ANALYSIS
¶ 8. Proposed Jury Instruction D-3 provides:
[t]he [c]ourt instructs the jury that if you find from the evidence in this case that [Wallace], is not guilty of the crime of Sexual Battery, then you may proceed with your deliberations to determine whether the State has proven, beyond a reasonable doubt, all of the elements of the lesser crime of Simple Assault.
If you find from the evidence, beyond a reasonable doubt, that:
1. The individual identified as [Wallace],
2. Attempted to cause, or purposely, knowingly, or recklessly caused bodily injury to [M.W.],
3. Or, that [Wallace] attempted by physical menace to put [M.W.] in fear of imminent serious bodily harm,
4. By striking or hitting [M.W.] with any part of his body,
5. And that [Wallace] was not acting in self defense or was not acting in defense of another,
then you shall find [Wallace] guilty of the crime of Simple Assault.
This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge of Sexual Battery but does justify a verdict for the lesser crime of Simple Assault.
However, notwithstanding this right, it is your duty to accept the law as given you by the [c]ourt; and if the facts and the law warrant a conviction of the greater crime, then it is your duty to make such finding uninfluenced by your power to find a lesser offense.
(Emphasis added). Regarding this instruction, the circuit judge determined that "[t]here was no testimony at all by [Wallace] that the day of the alleged event that there was any licks passed or anything like that. [Wallace] said that's not my sexual orientation, he denied having any type of contact with him." Accordingly, the circuit judge refused proposed Jury Instruction D-3 for lack of "an evidentiary basis[.]"
¶ 9. In reviewing challenges to jury instructions:
[t]he Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole. A defendant is entitled to have jury instructions given which present his theory of the case. This entitlement is limited, however, in that the court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
Spicer v. State, 921 So.2d 292, 313 (Miss. 2006) (quoting Parks v. State, 884 So.2d 738, 746 (Miss.2004) (citations omitted)). Our prior cases suggest that a claim such as Wallace's, i.e., that he was entitled to a lesser-included-offense instruction for simple assault, is a question of law, which this Court reviews de novo. See McCune v. State, 989 So.2d 310, 318 (Miss.2008). However, the inquiry necessarily is a *917 mixed question of law and fact, for a factual basis must be offered into evidence to support the instruction.
¶ 10. A lesser-included offense:
["]is one in which all the essential ingredients are contained in the offense for which the accused is indicted. ..." Porter v. State, 616 So.2d 899, 909-10 (Miss. 1993). Therefore, by its very definition, a defendant is always on notice of a lesser-included offense. In other words, the superior offense cannot be committed without the lesser-included offense also being committed. See Harper v. State, 478 So.2d 1017, 1021 (Miss.1985) (stating "the lesser-included crime is encompassed within the crime for which the accused is indicted.").
Downs v. State, 962 So.2d 1255, 1261 (Miss.2007) (emphasis added). This Court has stated that:
"[l]esser included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense."[[10]] Welch v. State, 566 So.2d 680, 684 (Miss.1990). In reviewing the propriety of such an instruction, we have stated:
[a] lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included offense (conversely, not guilty of at least one element of the principal charge).
McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989). However, this Court has repeatedly held that a lesser-included offense instruction should not be indiscriminately granted, but rather should be submitted to the jury only where there is an evidentiary basis in the record. Lee v. State, 469 So.2d 1225, 1230 (Miss.1985).
Sanders v. State, 781 So.2d 114, 119 (Miss. 2001).
¶ 11. Mississippi Code Section 97-3-95(1)(d) provides that "[a] person is guilty of sexual battery if he or she engages in sexual penetration[[11]] with: ... (d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child."[12] Miss.Code Ann. § 97-3-95(1)(d) (Rev.2006) (emphasis added). Mississippi Code Section 97-3-7(1) states, in pertinent part, that:
[a] person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily *918 injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm....
Miss.Code Ann. § 97-3-7(1) (Rev.2006).
¶ 12. This Court has not spoken on whether simple assault is a lesser-included offense of sexual battery. However, the Mississippi Court of Appeals has addressed this issue. In Trigg v. State, 759 So.2d 448 (Miss.Ct.App.2000), the defendant drugged his wife, rendering her unconscious, then made a videotape recording of himself "orally and digitally penetrat[ing] her vagina while she was unconscious, without her knowledge or consent." Id. at 450. Following his conviction for sexual battery, Trigg argued on appeal that, despite his failure to request an instruction on simple assault, the "trial court had an obligation to sua sponte instruct the jury in any lesser-included offenses." Id. at 451. Prior to finding that the case did not fall within the "narrow regimen" of "circumstances that require the trial court to instruct the jury sua sponte [,]" the Court of Appeals found that:
[i]t seems clear that the more serious offense of sexual battery does not include all of the elements of simple assault. In fact, they are quite dissimilar in that one could conduct a sexual battery against a person and not commit simple assault because the element of "bodily injury" is missing from the sexual battery statute. Therefore, simple assault does not seem to qualify as a lesser-included instruction of sexual battery.
Trigg v. State, 759 So.2d 448, 452 (Miss.Ct. App.2000). The Court of Appeals applied the same sound reasoning in Seigfried v. State, 869 So.2d 1040, 1046 (Miss.Ct.App. 2003).[13] This Court finds no flaw in the well-reasoned analysis of the Court of Appeals. Sexual battery (the superior offense) can be committed without a simple assault (the putative lesser-included offense) being committed. See Downs, 962 So.2d at 1261. The elements of the separate offenses are distinctly different, and no facts were presented in this case to persuade this Court that the trial court erred. Therefore, we find no error in the denial of Wallace's proposed Jury Instruction D-3.
CONCLUSION
¶ 13. Based upon the aforementioned analysis, this Court affirms the judgment of the Circuit Court of Tate County.
¶ 14. COUNT 1: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT 2: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES TO BE SERVED CONSECUTIVELY.
WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.
NOTES
[1] Thompson testified that M.W. "feels by me like a mother and I feel like he's a son of mine...."
[2] M.W. testified that "[Ennis] was my best friend and she's the only one that I ever really hung out with. So I figured if she was there, wouldn't anything happen."
[3] According to M.W., Outlaw "was just standing there" at the back of the motel room.
[4] While Ennis contended that she pleaded with Wallace and Croney to stop, she otherwise substantially corroborated M.W.'s testimony. Specifically, she stated that Wallace and Croney:
were tearing everything in the room upside down like the night stands and the lamps and everything, and [Wallace] and [Croney] started joking around about hitting [M.W.] in the face with his privates; and [Croney] held [M.W.'s] arms behind his back while [Wallace] hit him in his face with his penis and on his lip and put it in his mouth....
By contrast, Wallace alleged that Ennis "brought all this up after the fact that she found out she couldn't get custody of our son, and she changed her statement after finding out that I have a child with another woman." Ennis testified that she and Wallace ended their relationship more than one year prior to trial.
[5] Ennis testified that the motel incident occurred in 2002.
[6] The indictment subsequently was amended to change the date of the offense to "between the 1st day of January, 2002 and the 22nd day of January, 2003."
[7] Wallace's birth date is November 15, 1980, therefore, he is more than eight years older than M.W.
[8] The manner of sexual battery in Count I was subsequently amended to "by placing his penis in the mouth of [M.W.]."
[9] See footnote 6 supra.
[10] In fact, "there is `reversible error in not giving the lesser-included offense instruction.'" Downs, 962 So.2d at 1260 (quoting Fairchild v. State, 459 So.2d 793, 801 (Miss. 1984)).
[11] "Sexual penetration" includes "cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body." Miss.Code Ann. § 97-3-97(a) (Rev.2006).
[12] Mississippi Code Annotated Section 97-3-101(3) states that "[e]very person who shall be convicted of sexual battery under Section 97-3-95(1)(d) who is eighteen (18) years of age or older shall be imprisoned for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years." Miss.Code Ann. § 97-3-101(3) (Rev.2006) (emphasis added).
[13] Writ of certiorari denied by this Court. See Seigfried v. State, 870 So.2d 666 (Miss. 2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567466/ | 10 So.3d 1100 (2009)
HORNE
v.
McKEITHEN.
No. SC09-469.
Supreme Court of Florida.
May 14, 2009.
Decision without published opinion. Hab.Corp.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567477/ | LEROY JOHNSON
v.
ORLEANS PARISH DISTRICT ATTORNEY
No. 2009-CA-0115.
Court of Appeals of Louisiana, Fourth Circuit.
June 3, 2009.
Not Designated for Publication
LEROY JOHNSON, #307714 Louisiana State Penitentiary Plaintiff/Appellee, Pro Se.
WILLIAM D. AARON, Jr., Special Prosecutor Orleans Parish District Attorney's Office DeWAYNE L. WILLIAMS, CANDICE M. RICHARDS GOINS AARON, APLC, Counsel for Defendant/Appellant.
Court composed of Judge TOBIAS, Jr., Judge; BELSOME, Judge; BONIN.
MAX N. TOBIAS Jr., Judge.
The Honorable Leon A. Cannizzaro, Jr. ("Cannizzaro"), as the successor District Attorney for the Parish of Orleans, appeals an order rendered on 3 December 2008 against William D. Aaron, Jr. ("Aaron'), a special prosecutor with the office of the Orleans Parish District;[1] Robert L. Freeman, Jr. ("Freeman"), the District Attorney (Acting) of Orleans Parish until 16 November 2008 when Cannizzaro became the successor district attorney;[2] and Mark C. Carver ("Carver"), an attorney in the law office of Goins Aaron, APLC (but not a deputy special prosecutor); the order purports to grant a writ of mandamus in favor of the plaintiff/appellee, Leroy Johnson ("Johnson"), an inmate at the Louisiana State Penitentiary at Angola, Louisiana, directing Aaron, Freeman, and Carver to deliver certain records contained within the files of the office of the Orleans Parish District Attorney. After reviewing the record and law, we amend the trial court's order converting it to a judgment, issuing a writ of mandamus conditioned upon Johnson paying to the Office of the Orleans Parish District Attorney the sum of $68.00, and directing that Cannizzaro deliver to Johnson certain records of his office.
This case involves a public records request made by Johnson to the Orleans Parish District Attorney ("D.A."), pursuant to the Louisiana Public Records Act, La. R.S. 44:32, which states in pertinent part:
A. The custodian shall present any public record to any person of the age of majority who so requests. The custodian shall make no inquiry of any person who applies for a public record, except an inquiry as to the age and identification of the person and may require the person to sign a register and shall not review, examine or scrutinize any copy, photograph, or memoranda in the possession of any such person; and shall extend to the person all reasonable comfort and facility for the full exercise of the right granted by this Chapter; provided that nothing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any record while it is being examined; and provided further, that examinations of records under the authority of this Section must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours. In this event the persons designated to represent the custodian during such examination shall be entitled to reasonable compensation to be paid to them by the public body having custody of such record, out of funds provided in advance by the person examining such record in other than regular office or working hours.
* * *
C.
* * *
(2) For all public records of state agencies, it shall be the duty of the custodian of such records to provide copies to persons so requesting. Fees for such copies shall be charged according to the uniform fee schedule adopted by the commissioner of administration, as provided by R.S. 39:241.
Copies shall be provided at fees according to the schedule, except for copies of public records the fees for the reproduction of which are otherwise fixed by law. Copies of records may be furnished without charge or at a reduced charge to indigent citizens of this state or the persons whose use of such copies, as determined by the custodian, will be limited to a public purpose, including but not limited to use in a hearing before any governmental regulatory commission.
As used in the Public Records Law, "the word `custodian' means the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records." La. R.S. 44:1 A(3).
Beginning in 1994, Johnson, who had exhausted his appeals at the state level for criminal convictions, submitted a public records request to the D.A.'s office seeking copies of the files relative to his trials and ultimate convictions. The record on appeal contains his request dated 8 June 2008 for certain documents,[3] his application for a writ of mandamus filed on 21 July 2008 in the Civil District Court, and an order of the trial court signed on 25 August 2008 noticing a hearing for 26 September 2008 on Johnson's application for a writ of mandamus and granting Johnson a writ of habeas corpus ad testificandum. Service of Johnson's application for the writ of mandamus was made upon the Office of the District Attorney on 17 September 2008, although it is unclear precisely who was served. An answer and opposition was filed by Aaron of behalf of Freeman on 26 September 2008, the date of the scheduled hearing; Freeman was the then acting District Attorney. The answer informed Johnson that the cost to reproduce the sought records would be $68.00, based upon a letter dated 15 September 2008 signed by Aaron on behalf of Keva M. Landrum-Johnson, the then acting District Attorney for Orleans Parish. (Ms. Landrum-Johnson's letter is attached to the answer.) Apparently a hearing occurred on 26 September 2008, but no transcript hereof appears in the record on appeal and apparently the proceedings recorded by a court reporter.[4]
On 7 October 2008, Johnson filed a pleading with the court asking the trial judge who heard the matter on 26 September 2008 for a copy of the minutes and docket master of the 26 September 2008 hearing. However, although the Civil District Court maintains minutes, no docket master exists.
By a pleading filed on 16 October 2008 sent ex parte to the trial judge (apparently without a copy being sent to Aaron, Freeman, or Carver as required by law), Johnson reminded the judge that at the 26 September 2008 hearing Aaron acknowledged that the office of the district attorney had previously received from him a remittance of $131.00 for the sought records. In this ex parte pleading, Johnson attached a memorandum notification from the Louisiana State Penitentiary advising that his remittance of 5 November 2004 of $131.00 had been redeposited to his prison account on 8 October 2008 because the check had never been cashed. Also attached to this pleading was a copy of a letter of 30 September 2008 from Aaron written on behalf of Freeman asserting that the district attorney's office had no record of ever receiving the $131.00 check that Johnson had sent in 2004.
On or about 3 December 2008, Johnson again filed applications for a writ of mandamus and a writ of habeas corpus ad testificandum. The trial court denied the writ of habeas corpus ad testificandum, noting same was moot, apparently because the trial court signed the order that day attached to Johnson's application for a writ of mandamus granting the writ of mandamus, as described below. In his application, Johnson asserted:
Movant contends that when he attempted to perfect payment in this matter by causing a check in the amount of $131.00 to be mailed by the Department of Safety and Corrections to Respondent(s) that, Robert L. Freeman, Jr., William D. Aaron, Jr. and Mark C. Carver 1). Withheld the check made payable to the District Attorney files; 2). Returned the check made payable to the Respondents to the Department of Safety and Corrections instead of providing Movant with the records requested under Docket No. 338-273; Docket No. 338-448; and Docket No. 338-484 alleged to be contained in the District Attorney's file No. 75281 and 70077.
This Court previously ordered the District Attorney to provide the above and foregoing filed to Mr. Johnson during the contradictory hearing held previously. [Reproduced verbatim without correction.]
The specific order that the trial judge signed on 3 December 2008 reads as follows:
Premise of Movant Leroy Johnson considered:
IT IS ORDERED that Robert L. Freeman, Jr.; William D. Aaron, Jr.; and Mark C.Carver, at the address of 201 St. Charles Avenue, Suite 3800, New Orleans, LA 70170 shall provide to Mr. Leroy Johnson, with the records requested in the matter of State v. Johnson under Docket No. 338-273; Docket No. 338-448; and Docket No. 338-484 alleged to be contained in the District Attorney's file No. 75281 and 70077 as previously prayed for by Movant, and as Ordered by this Court in Johnson v. Orleans Parish District Attorney, Docket No. 2008-06940, Division L-6, and provide same to Movant thirty (30) days from receipt of this Court's Order. [Emphasis in original; reproduced verbatim without correction.]
Although service was requested, apparently this order was not served upon Cannizzaro or any other named defendant. However, the application filed on or about 3 December 2008 was served upon Freeman, Aaron, and Carver on 22 December 2008. Aaron, representing Cannizzaro, filed a motion for suspensive appeal on 30 December 2008 of the 3 December 2008 order and an order of appeal was signed that same day.
Cannizzaro, on behalf of Freeman, Aaron, and Carver, assigns three errors for our review. First, it is alleged that the trial erred in ordering that the documents be produced free of charge. Second, argument is made that the trial court erred by granting a writ of mandamus without a contradictory hearing. And lastly, the contention is made that the writ of mandamus must be directed to the then D.A., the proper public official, and not to Aaron, Freeman, and Carver.
In the first assignment of error, the argument is made that Johnson is not entitled to copies of his records free of charge. In State ex rel. Williams v. Whitley, 94-2693 (La. 2/9/95), 649 So. 2d 414, the Supreme Court held that the relator/inmate could inspect and copy the requested records at this own expense and that the records' custodian may provide him with the records free or at a reduced charge. However, the relator was not entitled to copies of documents free of charge as a matter of right.
In his concurrence, Justice Lemmon stated that:
[R]elator may seek further relief by showing that he is indigent and has a particularized need for the documents. Cf. State v. Simmons, 93-0275 (La. 12/16/94), 647 So.2d 1094 (with certain exceptions, incarcerated indigents must demonstrate a particularized need in order to receive copies of documents free of charge, exceptions do not include district attorney's files).
Id. See also Carmona v. Wallace, 94-0885 (La. App. 4 Cir. 11/17/94), 645 So. 2d 1300.[5]
We find no authority to support an argument that Johnson may obtain his records free of charge. However, we find that Johnson never sought to obtain his records free of charge. He tendered a payment of $131.00 that was not received by the office of the D.A. and it only became clear that the money was not received when that amount was recredited to Johnson's account at the Louisiana State Penitentiary in October 2008. Acting District Attorney Landrum-Johnson advised Johnson that the records sought would cost him $68.00, $6.00 of which was for postage; these records consist of fourteen pages in case number 338-484 and one hundred ten pages in case number 338-273.[6] We understand that the intent of the parties was that the documents sought by Johnson would be delivered to him upon the payment of $68.00. Accordingly, in the interests of justice, we find that the order should be amended to reflect that the documents sought by Johnson be provided to him upon his paying $68.00 to the D.A. La. C.C.P. art. 2164.
In the second assignment of error, the contention is made that the trial court erred by issuing a writ of mandamus without a contradictory hearing. In Revere v. Layrisson, 593 So. 2d 397, 399 (La. App. 1st Cir. 1991), the court stated:
A mandamus is, among other things, a writ directing a public officer to perform a ministerial duty required by law. La. C.C.P. arts. 3861 and 3863. La. C.C.P. art. 3865 provides as follows:
Upon the filing of a petition for a writ of mandamus, the court shall order the issuance of an alternative writ directing the defendant to perform the act demanded or to show cause to the contrary.
La. C.C.P. art. 3866 provides as follows:
After the hearing, the court may render judgment making the writ peremptory. (Emphasis added)
After reviewing the foregoing authorities, we conclude the trial court erred by rendering a judgment without first conducting a contradictory hearing as required by law. Cf. State ex rel Guste v. Thompson, 532 So.2d 524 (La. App. 1st Cir.1988). [Emphasis in original.]
This court reached a similar conclusion in Elliot v. Taylor, 614 So. 2d 126 (La. App. 4th Cir. 1993), where the plaintiff sought the arrest and booking records of a third party. Some of the information was omitted from the documents and the plaintiff filed for a writ of mandamus to obtain the redacted portions. We stated:
The right of access to public records is fundamental. Article 12 [sic], Section 3 of the Louisiana Constitution of 1974 provides in pertinent part that: "No person shall be denied the right ... to examine public documents, except in cases established by law." Access to such records can be denied only when a law specifically provides otherwise. Whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right to inspect. Title Research Corp. v. Rausch, 450 So. 2d 933 (La. 1984). Access to a public record can be denied only when the law specifically and unequivocally provides against access. Harrison v. Norris, 569 So. 2d 585 (La. App. 2 Cir.1990), writ denied, 571 So. 2d 657 (La. 1990). The Public Records Law has been liberally interpreted to enlarge rather than restrict the public's access to public records. Exemptions from disclosure should be narrowly construed because they are in derogation of the public's right to know how government affairs are conducted. Lewis v. Spurney, 456 So. 2d 206 (La. App. 4 Cir.1984), writs denied, 457 So. 2d 1183 and 458 So. 2d 488 (La.1984).
Id. at 128.
After reviewing the record, we find that the order of 3 December 2008 was rendered in connection with and on the basis of the 26 September 2008 hearing, not the ex parte application of Johnson of 3 December 2008. We reach this conclusion because the trial court declined to issue the second application for a writ of habeas corpus ad testificandum on 3 December 2008, declaring the need for that writ of habeas corpus as moot. No second hearing was required.
At the time of the order issuing the writ of mandamus, Cannizzaro was the duly elected district attorney. In the final assignment of error, Cannizzaro, on behalf of Freeman, Aaron, and Carver, asserts that the trial court erred by signing an order directed to the three of them, requiring the production of documents within the control of the D.A. We agree.
Pursuant to La. C.C.P. art. 3861, a mandamus is a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in articles 3863 and 3864. As noted, in La. R. S. 44:1 A(3), the word "custodian" means the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records. The district attorney is the public official having custody or control of the public records Johnson seeks. It is the district attorney to whom the writ of mandamus must be issued. Thus, we find that the trial court erred in failing to order the then district attorney to provide the records at issue.
As a matter of law, once Freeman ceased being the acting district attorney on 16 November 2008, the proper person to whom an order had to be directed was Cannizzaro.
La. C.C.P. art. 806 states:
When an officer of the state, or of a municipality, parish, political subdivision, agency, or public corporation, who is a party dies, resigns, or otherwise ceases to hold office, his successor may be substituted therefor on ex parte written motion of the successor or any other party, supported by an affidavit of the truth of the facts alleged. A copy of the order substituting the successor shall be served on the adverse party by mail.
Thus we find that Cannizzaro or Johnson should have moved to substitute Cannizzaro in place of Freeman.[7]
We note also that the trial court issued an order for a writ of mandamus. We understand that the trial court intended to issue a judgment granting a writ of mandamus. Accordingly, we will amend the decree converting the order into a judgment. La. C.C.P. arts. 2129 and 2164.
In our view, given the extraordinary set of facts in this case, the persistent attempts by Johnson since 2004 to obtain the records relating to his convictions, and the equities of this case, we amend the order of 3 December 2008 issued by the trial court to read as a judgment as follows:
Judgment is rendered herein in favor of Leroy Johnson and against the Honorable Leon A. Cannizzaro, District Attorney of Orleans Parish, as follows:
Upon Leroy Johnson paying to the Office of the District Attorney for Orleans Parish the sum of sixty-eight and no/100 dollars ($68.00), it is ordered that a writ of mandamus issue herein against and directed to the Honorable Leon A. Cannizzaro, Jr., in his capacity as Orleans Parish District Attorney, and in favor of Leroy Johnson, directing, ordering, and decreeing that the Honorable Leon A. Cannizzaro, Jr. provide to Leroy Johnson not more than thirty (30) days from the receipt of Leroy Johnson's payment of $68.00 (or a payment in that amount made on behalf of Leroy Johnson), the records consisting of fourteen pages in case number 338-484 and one hundred ten pages in case number 338-273 on the docket of the Criminal District Court for the Parish of Orleans, which pages are contained in the Orleans Parish District Attorney's files bearing numbers 75281 and 70077, as admitted and confirmed by the letter of September 30, 2008 written by William D. Aaron, Jr., Special Prosecutor, on behalf of Robert L. Freeman, Jr., then District Attorney of Orleans Parish, to Leroy Johnson, which letter is contained within the record on appeal of this case.
AFFIRMED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED.
NOTES
[1] The record does not reflect that Aaron was a special prosecutor with the office of the district attorney on 3 December 2008; its unknown what his status was on that date, all as will become clear infra.
[2] We take judicial notice of the fact that Cannizzaro took his first oath of office as the Orleans Parish District Attorney on 16 November 2008. La. C.E. art. 201.
[3] It appears that Johnson first sough public records relating to his convictions from the D.A. in 2004 as evidenced by a credit to his account at the Louisiana State Penitentiary in October 2008 in the amount of $131.00, as discussed infra. In May 2007, Johnson sent a second public records request to Aaron, who informed Johnson that a deposit of $50.00 would be required.
[4] In civil court proceedings, on motion days such as 26 September 2008, a court reporter does not necessarily take down the arguments or statements of attorneys or parties unless requested to do so by an attorney in the cause, a party, or the trial judge; only sworn testimony is automatically taken down. This explains the absence of any transcript for that day.
[5] "The District Attorney may, in his discretion, furnish copies free of charge or at a reduced rate to indigents, but there is no requirement that he do so. It was error for the trial court to order the District Attorney to furnish Mr. Carmona with free copies." Id., p. 2, 645 So.2d at 1300. Accord, Diggs v. Pennington, 03-0057, p. 4 (La. App. 4 Cir. 6/4/03), 849 So. 2d 756, 758.
[6] The letter of 30 September 2008 from Aaron on behalf of Freeman to Johnson indicates that no records in case number 338-448 can be found.
[7] We can find no Louisiana case that has cited La. C.C.P. art. 806. However, article 806 is derived from Fed. R. Civ. Proc. 25(d). Some federal jurisprudence, albeit old, citing due 25 (d) holds that where a new public officer replaces a former public officer holding the same public office, counsel appearing on behalf of the new public officer is presumed to represent both the new and former public officer; counsel's appearance in the same proceedings satisfies the rule that substitution of the defendant-public officer occurs when the successor adopts or continues or attempts to adopt actions of the predecessor public officer. Ming v. Dulles, 225 F. 2d 849, 852 (9th Cir. 1955). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567720/ | 10 So.3d 622 (2008)
Oliver Eugene PRIDE
v.
STATE of Alabama.
CR-06-1452.
Court of Criminal Appeals of Alabama.
February 29, 2008.
Oliver Eugene Pride, pro se.
*623 Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
SHAW, Judge.
Oliver Eugene Pride appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 1984 conviction for first-degree rape and his resulting sentence, as an habitual felony offender, of life imprisonment without the possibility of parole. This Court affirmed Pride's conviction and sentence on appeal, Pride v. State, 473 So.2d 576 (Ala.Crim.App.1984), and issued a certificate of judgment on July 12, 1985.
Pride filed this, his third, Rule 32 petition on March 14, 2007. In his petition, Pride alleged that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he said, neither the jury venire nor the petit jury were sworn. Pride attached to his petition pages from his trial transcript and from the case-action summary; these pages do not reflect any oath administered to the jury venire or to the petit jury before the trial began. After receiving a response from the assistant district attorney, the circuit court summarily denied Pride's petition on April 26, 2007.
On appeal, Pride contends that the circuit court erred in summarily denying his petition. The State agrees and requests that we remand this case for further proceedings. Pride's claim is jurisdictional,[1] see Brooks v. State, 845 So.2d 849 (Ala. Crim.App.2002); is sufficiently pleaded to satisfy the requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P.; and was not refuted by the State,[2] see Bates v. State, 620 So.2d 745, 746 (Ala.Crim.App.1992) ("`When the State does not respond to a petitioner's allegations, the unrefuted statement of facts must be taken as true.'" (quoting Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991))). Therefore, Pride was entitled to an opportunity to prove his claim.
Based on the foregoing, we remand this case for the circuit court to allow Pride an opportunity to present evidence to support his allegation that neither the jury venire nor the petit jury was sworn. The court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. After receiving *624 and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Pride's claim and may grant whatever relief it deems necessary. Due return shall be filed within 42 days of the date of this opinion, and shall include the circuit court's written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court in making its findings.
REMANDED WITH DIRECTIONS.[*]
BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.
NOTES
[1] This claim was not raised and addressed on its merits in any of Pride's previous petitions. Compare Ex parte Trawick, 972 So.2d 782 (Ala.2007) (holding that a jurisdictional claim that has been raised and addressed on its merits in a previous petition is subject to the successive-petition bar in Rule 32.2(b), Ala. R.Crim.P.).
[2] In her response, the assistant district attorney argued only that Pride had "failed to attach the appropriate portion of the trial transcript" and, thus, had failed to prove his claim by a preponderance of the evidence. (C. 22.) However, she did not argue that the jury venire and/or the petit jury had been properly sworn, nor did she attach to her response anything reflecting that the jury venire and/or the petit jury had been sworn. Moreover, we note that
"at the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only `a clear and specific statement of the grounds upon which relief is sought.' Rule 32.6(b), Ala.R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof."
Ford v. State, 831 So.2d 641, 644 (Ala.Crim. App.2001). Therefore, Pride was not required to prove his claim at the pleading stage of the proceedings.
[*] Note from the reporter of decisions: On December 19, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567726/ | 450 S.W.2d 428 (1970)
MID-STATES GENERAL AGENCY, INC., et al., Appellants,
v.
BANK OF TEXAS, Appellee.
No. 15586.
Court of Civil Appeals of Texas, Houston (1st Dist.).
January 22, 1970.
Rehearing Denied February 12, 1970.
*429 Bryan, Patton & Westmoreland, Chilton Bryan, J. H. Westmoreland, Houston, for appellants.
Robert H. Singleton, Houston, for appellee, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.
*430 COLEMAN, Justice.
This is a suit on insurance premium notes payable to Bank of Texas and endorsed with full recourse by Mid-States General Agency, Inc., and on a continuing guaranty agreement whereby Art. B. Taylor and J. S. Buckalew guaranteed to Bank of Texas the repayment of "credit and financial accommodations extended or to be extended or continued to Mid-States General Agency, Inc." The trial court granted a summary judgment in favor of Bank of Texas.
Appellants' first point of error reads: "The trial court erred in holding as a matter of law there is no fact issue to be determined in this case." This point of error is too general to comply with Rule 418, Texas Rules of Civil Procedure. However, in accordance with our usual practice, we shall look to the statements and argument in appellants' brief to determine their exact complaint. Crutchfield v. Associates Investment Company, 376 S.W.2d 957 (Tex.Civ.App.Dallas 1964, writ refused); Pattison v. Highway Insurance Underwriters, 292 S.W.2d 694 (Tex.Civ.App.Galv. 1956).
Appellants contend that there is a question of fact as to the issue of failure of consideration raised by the pleadings.
The agreement whereby Taylor and Buckalew guaranteed the payment of the obligations of Mid-States General Agency, Inc. to appellee contrains these provisions:
"IN CONSIDERATION of credit and financial accommodations extended, to be extended or continued to Mid-States General Agency, Inc., hereinafter called `Borrower,' by BANK OF TEXAS, Houston, Texas, hereinafter called `Bank,' and for other good and valuable considerations, I, we, and each of us, have jointly, severally and unconditionally guaranteed and do hereby jointly, severally and unconditionally guarantee to Bank, the payment of each and every claim, demand, indebtedness, right or cause of action of every nature whatsoever against said Borrower now or hereafter existing, due or to become due to, or held by Bank to the extent of ---------NO LIMIT ------ Dollars, together with any and all expenses incurred by Bank in enforcing this Agreement. This is a continuing guaranty and all extensions of credit and financial accommodations concurrently herewith or hereafter made by Bank to Borrower shall be conclusively presumed to have been made in acceptance hereof.
"* * *.
"The undersigned waive notice of acceptance of this guaranty and of any liability to which it applies or may apply, and waive presentment and demand for payment thereof, notice of dishonor or non-payment thereof, collection or instigation of suit or any other action by Bank in collection thereof including any notice of default in payment thereof or other notice to, or demand of payment therefor on, any party. Payment by the undersigned shall be made at the main office of Bank in Houston, Texas.
"Bank may, at its option, at any time without the consent of, or notice to the undersigned, without incurring responsibility to the undersigned, without impairing or releasing the obligations of the undersigned, upon or without any terms or conditions and in whole or in part, * * * (3) exercise or refrain from exercising any rights against Borrower or others, or otherwise act or refrain from acting, * * *"
Appellee instituted this suit against the agency and the guarantors on twenty five insurance premium notes and contracts. Each of the notes, or contracts, evidence a loan made by the Bank to the purchaser of insurance. In each case Mid-States Agency endorsed the instrument with full recourse. The Bank credited the amount of each note to the Agency Account. Each of the contracts provided for payment in monthly installments and provided: "The *431 undersigned and all endorsers hereof severally waive notice, demand, presentment for payment, protest and the filing of suit hereon for the purpose of fixing liability."
In their sworn answer appellants state that the Bank never advised them that there had been a default in any payment due on the notes so that they could cancel the insurance policy and reduce the amount of indebtedness to the Bank. Appellants also state that the Bank wholly failed to take action of any kind to collect the notes from the makers.
A waiver clause embodied in a note is binding on an endorser. Therefore neither the failure to notify the Agency that the maker of the note had defaulted, nor the failure to sue the maker constitutes a defense to the action against it. The trial court properly granted a summary judgment for appellee against Mid-States General Agency, Inc. Delta Metals, Inc. v. Alfin Manufacturing Co., 342 S.W.2d 599 (Tex.Civ.App.Dallas 1960, writ ref.); Martin v. Fannin Bank, 389 S.W.2d 724 (Tex.Civ.App.1st Dist. Houston 1965).
The rights of the guarantors must be determined from the language of the contract. Roseborough v. Phillips, 389 S. W.2d 593 (Tex.Civ.App.Dallas 1965). Appellants contend that certain language used reciting the consideration for the agreement, "financial accommodations continued, extended or to be extended," should be construed to require appellee not only to collect premium payments, but also to handle the accounts in a prudent, businesslike manner. They contend that this would necessarily include doing all that was necessary to mitigate damages if the insured failed to make payments, including notice to appellants of non-payment so that the policy might be cancelled. Unless there is a duty to handle the accounts in a businesslike manner there can be no disputed fact issue.
All of the language of the contract of guaranty must be given effect if possible. The clause reciting in general terms the consideration must be construed in context. Full effect must be given to the clauses whereby appellants specifically waive presentment and demand for payment, notice of non-payment or default in payment, and of the clause wherein they agree that the appellee may, without the consent of or notice to the guarantors, and without incurring responsibility to, or impairing the obligations of, the guarantors, exercise or refrain from exercising any rights against the borrower or otherwise act or refrain from acting. This language negates any duty on the part of appellee to handle the accounts in a businesslike manner, and particularly relieves appellee of any duty to give notice of non-payment, or to attempt collection of the accounts by legal action against the borrower, or to cancel the insurance and to apply the unearned premiums to the delinquent accounts. McGhee v. Wynnewood State Bank, 297 S.W.2d 876 (Tex.Civ.App.Dallas 1956, writ ref., n. r. e.).
Appellants have alleged that appellee refrained from giving notice of non-payment of the various accounts for the specific purpose of injuring them, and they contend that this constitutes fraud. In the absence of a duty to give notice of non-payment, the motive prompting a failure to give such notice would be immaterial and could not from the basis of a defense based on fraud.
Appellants make the general statement that the pleadings and the affidavits raise material issues of fact as to error, duress, and mistake. The specific facts alleged to constitute duress, mistake, or error are not stated in the brief. The only instances in which error or mistake are mentioned in the affidavits are mistakes favorable to appellants. No facts are alleged constituting duress. Lawrence v. J. M. Huber Corporation, 347 S.W.2d 5 (Tex. Civ.App.Waco 1961).
Appellants contend that the trial court improperly awarded judgment for attorney's *432 fees against the guarantors. Appellants have guaranteed that Mid-States General Agency, Inc. will pay any sums due from it to appellee. If Mid-States is liable to appellee for the attorney's fees provided in the premium notes by reason of its endorsement, the guarantors are also liable. Young v. J. F. Zimmerman & Sons, Inc., 434 S.W.2d 926 (Tex.Civ.App. Waco 1968, writ dism.).
Each of the notes contains this provision: "In the event of default the undersigned will pay all expense of collection, including an attorney's fee of ten per cent (10%) of the amount then owing and unpaid."
It is undisputed that there was a default in the payment of each of these notes, and that all of them were placed in the hands of an attorney for collection. Mid-States is liable for the contractual attorney's fee. Commerce Securities Corporation v. Congleton, 8 S.W.2d 803 (Tex.Civ.App.Dallas 1928, writ dism.).
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567521/ | 579 S.W.2d 84 (1979)
CITY OF AUSTIN, Appellant,
v.
Charles L. SMITH, Appellee.
No. 18075.
Court of Civil Appeals of Texas, Fort Worth.
March 22, 1979.
*85 Jerry L. Harris, City Atty., and Pam Reed, Asst. City Atty., Austin, for appellant.
Colbert & Berliner and Edward C. Berliner, Austin, for appellee.
OPINION
MASSEY, Chief Justice.
Workers' compensation claim was presented by Charles L. Smith against the City of Austin, a self-insurer under Tex. Rev.Civ.Stat.Ann. art. 8306, et seq., "Workmen's Compensation Law".
Smith's claim was ultimately resolved in his suit in a District Court of Travis County. Trial was before a jury and a verdict signed by eleven of the jurors was returned, finding, in substance, the following: Smith sustained an injury on or about October 19, 1976 while in the course of his employment by City of Austin; the injury was a producing cause of total incapacity beginning November 22, 1976 and persisting until March 31, 1977; the injury was a producing cause of partial incapacity beginning April 1, 1977 to terminate April 1, 1982; his wage earning capacity during partial incapacity was and will be $94.00 per week; and medical care was reasonably required as result of the injury on or about October 19, 1976, for which he reasonably and necessarily incurred liability for payment in the amount of $1,638.05.
On this jury verdict judgment was rendered and it was signed on November 18, 1977. Judgment was for $21,684.48. Therefrom City of Austin appealed.
We affirm.
At time of Smith's alleged injury of October 19, 1976 he was a firefighter employed by the City of Austin. The injury, so called, was or resulted by reason of a "swine flu inoculation", the ingredients for which were provided by the federal government and administered by the city through its agents and employees.
While receipt of the inoculation was voluntary in that Smith was at liberty to refuse it, the jury was entitled to believe that the City desired that he receive it for its own welfare (in that greater assurance of ability of Smith to perform the duties of his employment would be provided). The record shows that Smith desired to receive it for his individual protection. Smith was a member of a crew of men stationed at the municipal airport. He was assigned the duty of transporting others of his crew by driving a municipally owned vehicle to the place in Austin where the inoculations were to be received.
The material time and events for consideration were those between the time of arrival at the place for inoculation and the time of departure therefrom after those of the crew who desired to do so had submitted *86 to inoculation. Smith was at the place for inoculation to receive his "shot" or not, as he might choose. He chose to and did receive his "shot".
Smith was one of those individuals whose reaction to the "swine flu inoculation" was unfavorable. There is no question, and it is not in dispute, but that the presence of the vaccine in his body had a deleterious and disabling effect. For our purposes there is not a question upon whether it resulted in the periods of total incapacity and periods of subsequent partial incapacity found by the jury.
What is contested by three points of error relates to existence or non-existence of "injury" and/or "injury sustained in course and scope of employment", as applied to Smith, through the inoculation and injection of the serum into his body.
These points of error are that (a) there was no evidence of injury in scope and course of his employment; (b) or that there was insufficient evidence of such; and (c) that the jury finding that Smith sustained "injury" on or about October 19, 1976 (defined in the charge as damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom) was so contrary to the greater weight and preponderance of the evidence as to be clearly wrong.
The City's essential contention is that there did not exist the requisite causal connection between the work Smith was employed to perform with the injury he sustained. In other words the contention is that Smith failed to provesufficiently, in any event, to properly show (a) that the causative danger was peculiar to his particular work as distinguished from a danger to the public at large; (b) and/or that the causative danger was in any way incidental to and arisen out of Smith's relationship as an employee to his employer; (c) and/or that his "injury" originated from a risk connected with his employment and one which flowed from that source. Citing Shelton v. Standard Insurance Company, 389 S.W.2d 290 (Tex.1965), the City insists that Smith had the obligation to prove but did not prove not only that he was engaged in or about the furtherance of his employer's business or affairs, but also that his injury had to do with and originated in such work.
The City appears to liken what occurred to an employer who furnishes transportation for his crew of workmen from a work-site into town to a restaurant in order that those of them who might desire to eat are thereby afforded the opportunity; and where one of them takes advantage of the opportunity and does eatat his own expense, food of his own choiceand where as result something in that which he has chosen to eat causes him to become ill and thereby incapacitates him. It is readily seen that under the circumstance hypothesized there would not have been an injury covered by the Texas Workmen's Compensation Law.
In its brief the City seeks to support its position by certain language to be found in Texas Employers' Ins. Ass'n v. Mitchell, 27 S.W.2d 600 (Tex.Civ.App.Texarkana 1930, writ dism'd). That was a case in which the finding of "injury in course of employment" was upheld. Among other reasons for so holding was that the injured employee was required to receive a vaccination for smallpox by the employer. In the opinion there was discussion of cases from other jurisdictions in which vaccinations were held not to have occasioned injuries in the course and scope of employment by a master because not ordered or in any way brought about by the employer, but instigated by a public agency in the public interest. Also discussed were cases in which infections which occurred were not in any way due to the work or the place of work.
We reject the contentions of the City of Austin and accept the theories of Smith. In other words we hold that there was evidence of injury in the scope and course of Smith's employment by the City, that it was sufficient to support the answer returned by the jury so finding, and that such finding was not so contrary to the greater weight and preponderance of the whole of the evidence in the record as to be clearly erroneous.
*87 Prior to the occasion when Smith was inoculated his employer, City of Austin, established a city-wide priority program for the distribution of the swine flu vaccine, with a priority plan for inoculation of persons. The first priority group (after the aged and chronically ill) was a group of persons who, because of their occupations, would be critical to the community in the event of a swine flu epidemic. Included therein were the firemen of the City of Austin, one of whom was Smith.
It was the nature of Smith's duties of employment which caused his job to be classified in the priority group mentioned. Had he not been in that group he would not have been authorized to have received the vaccine as early as October 19th, the date on which he did receive it. Smith received the shot while he was on duty, at a facility owned and operated by his employer, City of Austin. There is testimony from the Mayor of the City of Austin, Jeff Friedman. In substance a part of that to which he testified was:
There was no direct mandate saying you will have everybody line up, but it was made very clear that they were to be taken over in City vehicles and given time off from their functions, although they were still on emergency call; if something came up, they would have to leave the line. And I think the inference is pretty clear ... from working in City government for six years ... that when it is told, you have to do it and that it was pretty clear they wanted to have them ... that the supervisors wanted them to have them (the inoculations).
Injury through inoculation should be covered "if there is a combination of strong urging by the employer and some element of mutual benefit ...." Larson, Workmen's Compensation Law § 27.32 (1978), "Inoculations and employment health tests". Larson, analyzing a New Jersey case where a smallpox inoculation was made available to all employees by the employer during a smallpox scare quotes therefrom under the section (§ 27.32) as follows:
"... insofar as it aided in the prevention of smallpox within the employee group it protected the employer against possibly disastrous business consequences.... While his efforts were highly commendable ... it would be unrealistic to find that they were for the exclusive benefit of the employees and not additionally designed to further a sound employer-employee relationship and safeguard the employer against the serious effects of a case of smallpox against its employees." Saintsing v. Steinbach Company, 1 N.J.Super. 259, 64 A.2d 99, 101 (1949).
and further cites with approval a Louisiana case where injections were given on the employer's premises by a trained nurse on the employer's staff, though the workmen were not ordered or required to take the inoculation. In that case the court said:
"[T]he convenience of the facility and the posted notice constitute a suggestion, an invitation and urge, calculated to induce an employee to submit to the treatment who might not otherwise have done so." Smith v. Brown Paper Mill Company, 152 So. 700, 704 (La.Ct. of App.1934).
Three other points should be considered when analyzing the facts of the instant case to determine if Smith was in the course of his employment.
First, Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W.2d 333 (1948), and the line of cases construing it, culminating in Texas Employers' Ins. Ass'n v. Page, 553 S.W.2d 98 (Tex.1977), hold that: "The risk may be no different in degree or kind than those to which he may be exposed outside of his employment. The injury is compensable, not because of the extent or particular character of the hazard, but because it exists as one of the conditions of the employment." Garcia, supra, at 337.
The second line of cases states that acts essential to the health, comfort and convenience of an employee while at work are incidental to his service, and injuries sustained in their performance arise out of the employment and are compensable under the *88 statute. Security Mut. Casualty Co. v. Wakefield, 108 F.2d 273 (5th Cir. 1939); Casualty Reciprocal Exchange v. Johnson, 148 F.2d 228 (5th Cir. 1945); New York Casualty Co. v. Wetherell, 193 F.2d 881 (5th Cir. 1952). The jury was entitled to conclude that Smith's willing acceptance of the inoculation was an act essential to his health, comfort and convenience undertaken while at work. The claim of Smith would be encompassed by the holdings of these cases under the findings of the jury returned in its verdict.
The third line of cases states that an employee can combine purely personal purposes with the discharge of duties as an employee without departing from the course of his employment. Parker v. Royal Indemnity Co., 59 S.W.2d 243 (Tex.Civ.App. Dallas 1933, no writ); Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App. Eastland 1931, writ ref'd). The facts in Shook are especially convincing. Shook was on duty for his employer 24 hours per day maintaining an oil well in proper running order. He lived in a shack near the well. His duties did not require that he stay at the well or shack constantly, but he was free to go and come. One night Shook, while out hunting wolves with several other people, was murdered. The court wrote (p. 429):
"[S]o long as he was in a zone where he could hear the engine and was in a position where he could go to it when occasion arose, it could make no difference whether he was sitting quietly in his shack, sleeping, eating, exercising, dancing, playing cards, or doing anything else.
. . . . .
"Shook's employment was analogous to that of a driver of a fire truck. He spends twenty-four hours per day in and around the fire station to be in readiness to go to a fire when an alarm is turned in. Could it be reasonably and justly contended that such fireman would not be in the course of his employment while playing ... croquet or baseball on the outside within convenient distance thereof and within hearing of the gong? Surely not...."
The evidence shows that Smith was on duty when he was inoculated; he was on call at the very time of its receipt, within hearing distance of a "walkie talkie" in communication with his work station so that he could have (and would have) responded instantly had there been an emergency at the municipal airport. At least the evidence raised the issue and in our view almost mandated the very findings which were returned by the jury.
Judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567527/ | 579 S.W.2d 482 (1979)
Larry Carnell FORTENBERRY, Appellant,
v.
The STATE of Texas, Appellee.
No. 60206.
Court of Criminal Appeals of Texas, En Banc.
March 21, 1979.
Rehearing Denied May 2, 1979.
*483 Joe L. Cox and Steve L. Hurt, Plainview, for appellant.
John R. Hollums, Dist. Atty., Floydada, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION
ODOM, Judge.
This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code Sec. 19.03. After the jury answered all punishment stage issues in the affirmative, the penalty was fixed at death. Art. 37.071, V.A.C.C.P. This case was tried in Hale County on a change of venue from Motley County.
In his 53rd and 54th grounds of error, appellant contends the trial court submitted an erroneous charge on the law requiring corroboration of an accomplice witness, over his objection.
Appellant was charged with the capital murder of Jalmar "Jinks" Wilson, the sheriff of Motley County, under Sec. 19.03(a)(1), supra:
"A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
"(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;..."
Article 38.14, V.A.C.C.P., provides:
"A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."
The gravamen of capital murder as alleged against appellant in this case is that the deceased was a peace officer acting in the lawful discharge of an official duty at the time he was killed, and that appellant knew he was a peace officer. The state's primary witness was Stacy Carter, who acted with appellant in the commission of the offense, and who had pled guilty to the lesser included offense of murder and agreed to testify for the state at appellant's trial as part of a plea bargain. Carter gave the only direct evidence that appellant knew the sheriff was a peace officer. At the time he was shot, Sheriff Wilson was *484 not wearing a distinctive uniform, a badge, or a gun. The car he was driving displayed no official emblems or words, and was not equipped with lights on top, although there were red lights behind the front grill. The visibility of these lights was in dispute at trial. The passenger who was with the sheriff at the time of the shooting was unable to testify to any conversation by which the sheriff might have informed appellant of his authority.
On the matter of corroboration of the accomplice witness' testimony, the trial court first instructed the jury generally on the law of Art. 38.14, supra. It then applied the law to the facts in this language:
"The witness, Stacy Albert Carter, is an accomplice, if an offense was committed, and you cannot convict the Defendant upon his testimony unless you first believe that his testimony is true and shows that the Defendant is guilty as charged, and then you cannot convict the Defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said Stace [sic] Albert Carter tending to connect the Defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the Defendant is guilty of the offense charged against him."
Appellant timely objected to this portion of the court's charge, pointing out that it did not direct the requirement of corroboration to the specific elements that render the offense a capital crime. These are appellant's two objections on this issue that were overruled by the trial court:
"The Defendant objects to the charge as a whole for the reason that the same does not require the jury to find that the accomplice testimony has been corroborated in each element of the offense of capital murder, that is, that the deceased was a peace officer acting in the lawful discharge of an official duty and that this Defendant knew that the deceased was a peace officer."
"The Defendant objects to the charge as a whole and particularly the three paragraphs contained on page 4 of the said charge in that the same does not require the corroboration of the testimony of the accomplice in this case as to the elements of the case that elevate murder to capital murder, that is, the allegation of `peace officer acting in the discharge of an official duty and knowledge of this Defendant that the deceased was a peace officer.' And the Defendant objects and excepts to the charge of the court contained in paragraph 4 thereof because it does not in any way differentiate the charge of accomplice testimony as to the allegations of murder and capital murder, and is calculated to mislead and confuse the jury as to what corroboration is necessary and whether there is in fact corroboration of the offense of capital murder, as to whether there is corroboration of the allegation in the indictment of acting in the discharge of an official duty and whether there is corroboration of the accomplice that the Defendant knew the deceased was a peace officer."
In its reply to these two grounds of error the state cites one case for the proposition that it is not necessary to corroborate an accomplice witness on all points, and that the only evidence required is that which would be sufficient to tend to connect the accused with the crime charged.
Although it is the general rule that the "usual" charge on Art. 38.14 is sufficient, that is not always the case. For example, in Warren v. State, 514 S.W.2d 458, the Court recognized the different requirement that applies to prosecutions for receiving and concealing stolen property. In that case the Court wrote:
"Although appellant asserts otherwise, the corroboration need only tend to connect the accused with the offense charged. Article 38.14, V.A.C.C.P. [citation omitted], and make the accomplice's *485 testimony more likely true than not. The accomplice need not be supported as to every element of the offense. Sheffield v. State, [Tex.Cr.App. 371 S.W.2d 49]. In receiving and concealing cases, the corroboration required includes corroboration of defendant's knowledge that the property is stolen. Sanders v. State, 144 Tex.Cr.R. 526, 164 S.W.2d 685 (1942); Hall v. State, 373 S.W.2d 252 (Tex.Cr. App.1963), ..." (Emphasis added.)
Both Hall and Sanders, supra, stand squarely for the proposition that in a prosecution for receiving stolen property, "the thief must be corroborated both as to the theft and the receiving by the accused from the thief, with knowledge that the property had been stolen."
Another case, Johnson v. State, 144 Tex. Cr.R. 496, 164 S.W.2d 702, spoke directly to the jury charge issue in these words:
"This charge followed approved precedent, and, ordinarily, would be deemed a sufficient application of the law requiring corroboration of an accomplice witness. Quinn v. State, 136 Tex.Cr.R. 131, 123 S.W.2d 890. However, such a charge is insufficient in a case of receiving and concealing stolen property, when the two essential elements of that offense, that is, the theft of the property and the receipt thereof by the accused, are shown by the testimony of the accomplice. In such cases, it is necessary that the accomplice be corroborated both as to the theft and the receipt of the stolen property by the accused knowing it to have been so acquired, and that the charge on accomplice testimony should be so framed." (Emphasis added.)
Appellant invokes this line of authority by the cases cited in his brief. He points out that the jury instructions to which he objected failed to instruct the jury that the accomplice witness must be corroborated on the very points that make this case one of capital murder, i. e., the elements from Sec. 19.03(a)(1), supra. Just as the accomplice witness in a receiving and concealing case must be corroborated on the matter of the defendant's knowledge that the property was stolen, appellant argues, likewise must the accomplice witness in this capital murder case be corroborated on the matter of appellant's knowledge that the deceased was a peace officer.
In Cagle v. State, Tex.Cr.App., 505 S.W.2d 858, after being convicted as an accomplice to receiving and concealing stolen property, the defendant on appeal relied on this same line of authority as support for his position that an accomplice witness must be corroborated on the element of whether the defendant advised, commanded and encouraged the commission of the offense, such as to make him an accomplice. The Court held, "The `usual' charge on accomplice testimony, given by the Court, was not sufficient in this case," and reversed the conviction for the failure of the trial court to charge the jury on the corroboration of the accomplice witness on the particular point raised.
In Cone v. State, 86 Tex.Cr.R. 291, 216 S.W. 190, relied on in Cagle, supra, the Court held:
"It is not sufficient to charge, in cases of this character, simply that appellant was an accomplice witness and as such to be corroborated. That was necessary, of course, both as to the theft and as to appellant being an accomplice as alleged. The court in directing the minds of the jury as to the law should have instructed them, first, that the state must prove that Pullen was a principal and committed the theft, and that he must be corroborated in his testimony as to that issue; second, that the state must prove that appellant was an accomplice as charged in the indictment, and in the manner charged, and that Pullen's testimony was not sufficient to prove this; that he must be corroborated as to that issue."
These cases clearly show that the "usual" charge on accomplice witness testimony is not always sufficient, and the charge "in directing the minds of the jury as to the la" should state that the very basis of the offense charged must be corroborated. See also, Creda v. State, 147 *486 Tex.Cr.R. 390, 181 S.W.2d 278; Brewer v. State, 93 Tex.Cr.R. 213, 246 S.W. 663.[1]
In capital murder under Sec. 19.03(a)(1), the very heart of the offense is that the victim was a peace officer (or fireman) who was acting in the discharge of an official duty, and that the accused knew the victim was a peace officer (or fireman). Appellant specifically objected that the accomplice witness instruction failed to direct the jury to the requirements of the law that Stacy Carter's testimony must be corroborated as to the facts that make this a death penalty case. The trial court committed reversible error when it overruled those objections.
For failure of the court to adequately instruct the jury on the statutory requirement that the accomplice witness must be corroborated, the judgment is reversed and the cause remanded.
DOUGLAS, J., dissents.
NOTES
[1] These cases were reversed for similar errors in seduction cases where corroboration was required by Art. 38.07, V.A.C.C.P. before repeal in 1973, which required corroboration of the complaining witness' testimony "... by other evidence tending to connect the defendant with the offense charged." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567532/ | 10 So.3d 196 (2009)
Paul Joseph ROBINSON, Appellant,
v.
Libbie Brown ROBINSON, Appellee.
No. 1D07-5841.
District Court of Appeal of Florida, First District.
April 14, 2009.
Robert R. Kimmel of Kimmel & Batson, Pensacola, for Appellant.
Laura E. Keene and Ross A. Keene of Beroset & Keene, Pensacola, for Appellee.
VAN NORTWICK, J.
Paul Joseph Robinson appeals a final judgment of dissolution arguing that the trial court erred in treating as marital property five shares of stock he acquired prior to the marriage and in establishing the amount of alimony awarded appellee, Libbie Brown Robinson, the former wife. For the reasons that follow, we agree with Robinson that the trial court abused its discretion in treating his five shares of stock, acquired prior to the marriage, as a marital asset when the court equitably distributed the parties assets. We affirm without further comment the amount of the trial court's award of permanent alimony to the former wife.
Mr. Robinson is an officer and employee of a closely held corporation, Gulf Tool Corporation, the capital stock of which is owned by him and his parents. When the parties married in 1991, he owned five of the twenty shares of common stock outstanding and his parents owned the balance. During the marriage, he acquired an additional three shares of stock. Mr. *197 Robinson conceded that the three shares of stock of Gulf Tool Corporation acquired during the marriage constituted a marital asset, but he argued that the other five shares were nonmarital property.
Below, a business appraiser testified that, at the time the dissolution action was filed in 2006, Mr. Robinsons eight shares were valued at approximately $407,100, or $50,885 per share. No evidence was presented as to the value of the stock at the time the parties married or when the stock was originally issued to him prior to their marriage. In the proceeding below, the former wife urged the trial court to treat all eight shares as a marital asset.
Although the trial court initially agreed that the five shares constituted a nonmarital asset, the trial court ruled that it was Mr. Robinsons burden to prove the value of the nonmarital stock at the time of the parties marriage and, since he failed to prove the premarital value of the five shares of stock, the court ruled it was required to find all eight shares of stock to be marital property.
An asset acquired prior to the marriage is, by definition, nonmarital. 61.075(5)(b)l., Fla. Stat. (2006). The court is required to set aside any nonmarital asset to the party owning it, and equitably distribute only the marital assets and liabilities between the parties. 61.075(1), Fla. Stat. (2006). Here, there is no evidence of enhancement, commingling, or gift to the former wife. Thus, Robinsons five shares of stock were required to be considered nonmarital property and excluded from the equitable distribution scheme. Capozza v. Capozza, 917 So.2d 365 (Fla. 5th DCA 2005); Mills v. Mills, 845 So.2d 230 (Fla. 3d DCA 2003); and Vick v. Vick, 675 So.2d 714 (Fla. 5th DCA 1996). The nonmarital stock was not transformed into a marital asset merely because Mr. Robinson derived the family income from his work for the corporation. Farrior v. Farrior, 736 So.2d 1177 (Fla. 1999) (holding that where the stock is not sold, intermingled with other assets, and remained titled in the wifes name, the stock was nonmarital). The former wife cites no authority for her contention that, though there was no commingling of the stock, it was her former husbands burden to prove the value of the premarital stock so that the trial court could segregate it as nonmarital, and, we find no support for that proposition. Because the five shares were nonmarital property, the value of those shares is irrelevant to the distribution scheme.
Accordingly, we reverse the trial court's determination that the five shares of stock owned by Mr. Robinson before the parties marriage constitutes a marital asset. Because the stock was an integral part of the trial court's equitable distribution plan, we must vacate the plan and remand for further proceedings so that a new equitable distribution plan, without consideration of the five shares of stock, can be fashioned. See Anson v. Anson, 772 So.2d 52, 55 (Fla. 5th DCA 2000).
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
KAHN and PADOVANO, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567543/ | 579 S.W.2d 553 (1979)
COMMISSIONER OF INSURANCE et al., Appellants,
v.
ALLSTATE INSURANCE COMPANY, Appellee.
No. 12911.
Court of Civil Appeals of Texas, Austin.
March 28, 1979.
Rehearing Denied April 18, 1979.
*554 John L. Hill, Atty. Gen., Catherine Brown Fryer, Asst. Atty. Gen., Austin, for appellants.
J. Chrys Dougherty, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for appellee.
PHILLIPS, Chief Justice.
Allstate Insurance Company brought suit against the Commissioner of Insurance, the State Board of Insurance, the Attorney General, and the Treasurer of the State of Texas to recover taxes paid on gross premium receipts pursuant to Tex.Rev.Civ.Stat. Ann. art. 7064 (1960).
After trial to the court, judgment was rendered that Allstate recover the sum of over six million dollars, including interest, from the State for excess taxes on gross premiums paid by Allstate for the taxable years of 1972 and 1975.
We affirm the judgment.
The State is before us on a number of points of error which assert the error of the trial court in refusing to hold that Allstate was subject to the highest rate of tax permitted under the statute for gross premium tax returns filed by Allstate for the taxable years 1972 and 1975.
Article 7064 imposes an annual tax on the gross premiums collected by certain classes of insurance companies, of which appellee is one. The tax rate is determined by a formula which compares the investments of the company in "Texas securities" with investments in the "similar securities" of another state in which it does business. The tax is reduced by investments in Texas securities.
The background facts of this cause, briefly stated, are as follows. After audit of the Allstate tax return for 1972, the Commissioner of Insurance determined that Delaware, rather than California, as claimed by Allstate, was the correct comparison state, or state in which Allstate "had its highest percentage of admitted assets invested." Based upon the ratio of Texas securities to similar securities in the state of Delaware, the Commissioner determined that Allstate should be taxed at the highest rate, 3.85 percent, and that Allstate owed the State of Texas a substantial amount of additional gross premiums taxes. In addition, the Commissioner assessed a sizable penalty against Allstate. There then followed a series of discussions between the parties culminating in an order issued by the Commissioner of Insurance affirming that Allstate was liable for the additional tax and penalty. Allstate then requested, and was granted, a hearing before the State Board of Insurance; however, the Board denied the appeal and upheld the order issued by the Commissioner. Allstate initiated an appeal to the district court of Travis County pursuant to Article 1.04(f) of the Texas Insurance Code.
After audit of Allstate's 1975 gross premiums tax return, the Commissioner determined that Delaware, rather than Illinois, as claimed by the company, was the correct comparison state for 1975. Based upon the ratio of Texas securities to similar securities in the state of Delaware, the Commissioner determined that the applicable tax rate should be 3.85 percent and that Allstate owed the State of Texas an additional tax and penalty. Substantially the same administrative procedure was followed between the parties as with the 1972 tax with the same result. Allstate then amended its original petition in the district court to encompass its protest of the 1975 tax.
The first question for our determination is the proper construction of that part of Article 7064 which is as follows:
*555 "Each such insurance organization shall also report to the Board of Insurance Commissioners ... the amount that it had invested on the 31st of December, preceding, in Texas securities as defined herein and the amount that it had invested on said date in similar securities in the State in which it had its highest percentage of admitted assets invested...." (Emphasis added).
This statute imposes an annual tax on fire and casualty insurance companies based on the gross premiums received from insurance on property or risks located in Texas. The basic tax rate is 3.85 percent of the gross premiums; however, the rate is reduced as the insurance company's investment in certain Texas properties, defined by the statute as Texas securities, rises above a certain percentage of its investments in similar securities in the state in which it had invested the most "admitted assets" (the comparison state). If the amount of Texas securities reaches the proper percentage of similar securities in the comparison state, the premium tax is reduced to 1.1 percent.
The State contends that in determining the actual state in which an insurance company has its highest percentage of admitted assets invested, the Board should look to the state in which the insurance company has the most similar securities. This is so because the Board considers the terms "admitted assets invested" and "Texas securities" (and therefore "similar securities") to be synonymous. The supervising tax analyst for the Board, and the person responsible for administering the Act, testified that she determines the state in which a company has its highest percentage of admitted assets invested as follows:
"We go through the list that we are provided; then we go through the annual statement itself and check the listings by the state of incorporation of each of the investments listed and determine first whether or not it is a Texas security or a similar security and then from there we fill in the state of domicile of each security."
The similar securities are then totaled, and the domicile state with the most similar securities is designated the state in which the taxpayer has the highest percentage of admitted assets invested.
Article 7064 defines Texas securities by listing various types of investments that qualify, as follows:
"For the purposes of this Act, Texas securities are defined as real estate in this State; bonds of the State of Texas; bonds or interest bearing warrants of any county, city, town, school district or any municipality or subdivision thereof which is now or may hereafter be constituted or organized and authorized to issue bonds or warrants under the Constitution and laws of this State; notes or bonds secured by mortgage or trust deed on property in this State insured by the Federal Housing Administrator; the cash deposits in regularly established national or state banks or trust companies in this State on the basis of average monthly balances throughout the calendar year; that percentage of such insurance company's investments in the bonds of the United States of America, that its Texas reserves for the unearned premiums and loss reserves as may be required by the Board of Insurance Commissioners, are of its total reserves; but this provision shall apply only to United States Government bonds purchased between December 8, 1941, and the termination of the war in which the United States is now engaged; in any other property in this State in which by law such insurance carriers may invest their funds." (Emphasis added).
This suit involves an interpretation of the italicized omnibus clause.
Although the term similar securities is not defined in Article 7064, a similar security is generally understood to be the same as a Texas security except that it is located in another state. See Kansas City Title Insurance Co. v. Butler, 253 S.W.2d 318 (Tex.Civ.App.1952, writ ref'd n. r. e.).
The State contends that it is the policy of the State Board of Insurance to construe "in any other property in this State in *556 which by law such insurance carriers may invest their funds" to mean any property in which, under Texas law, insurance carriers may lawfully invest their funds.
From here the State points to Article 2.10 of the Texas Insurance Code contending that authorized investments include corporate stock, notes, and debentures and that such are considered to be similar securities under the omnibus clause cited above. The State contends that it has always been the policy of the State Board of Insurance to use the state of incorporation of the company issuing the stock as the situs of the stock. Therefore, stock in a Texas chartered corporation is a Texas security. Likewise, stock in a Delaware chartered corporation is a similar security in the state of Delaware.
The State's argument is basically that corporate stocks and bonds should be included in determining the comparison state, that is, the one in which Allstate "had the highest percentage of its admitted assets invested," and in computing the amount of Texas securities (and therefore similar securities). Such a construction of Article 7064 would result in an increase in the percentage of similar securities. This is true because appellants' interpretation of the statute would make Delaware the comparison state and Allstate owns a great many shares of stock of corporations chartered in Delaware.
We first will consider appellants' contention that corporate stocks and bonds are to be treated as admitted assets invested. Admitted assets are not defined by the statute, and we must look to their accepted meaning in the insurance field. It has been held that admitted assets are any lawful investments that are counted in determining solvency of an insurance company. See Commonwealth Insurance Department v. Safeguard Mutual Insurance Co., 478 Pa. 592, 387 A.2d 647 (1978); National Life Insurance Co. v. Haines, 255 Pa. 599, 100 A. 517 (1917). See also 13A Appleman, Insurance Law and Practice § 7746, at 633 (1976). There is no doubt that Allstate's investments in stocks and bonds are lawful. Tex. Ins.Code Ann. art. 2.10, § 5 (1963).
We need not determine, however, whether corporate stocks and bonds do indeed qualify as admitted assets invested. Assuming arguendo that they do, we would still be faced with the issue of deciding the situs of the stocks and bonds for purposes of determining the comparison state. As a result of our holding infra concerning treatment of stocks and bonds as Texas securities and similar securities, it would make no difference whether the comparison state was Delaware, as appellants contend, or California and Illinois, as appellee argues. We do not believe that corporate stocks and bonds are to be treated as similar securities, and under this construction of the statute Allstate is entitled to the 1.1 percent lowest tax rate even with Delaware as the comparison state. Exclusion of stocks and bonds from the similar securities total for Delaware would result in a very low figure in proportion to the total of Texas securities. No matter which state was the comparison state, Allstate would still be entitled to the 1.1 percent tax rate.
As indicated previously, we hold that corporate stocks and bonds do not qualify as Texas securities, and thus necessarily not as similar securities either. Appellants seek to show that the three terms used in Article 7064, Texas securities, similar securities, and admitted assets invested, are all synonymous. If this were true, a conclusion that corporate stocks and bonds are admitted assets invested would automatically mean that the stocks and bonds are also similar securities. This Court held in a prior case that the terms are not synonymous; that premium notes were admitted assets but not Texas securities. Commercial Standard Fire and Marine Co. v. Commissioner of Insurance, 429 S.W.2d 930 (Tex.Civ.App.1968, no writ).
We have held in another earlier case that investment in stock of a corporation is not an investment "in any other property in this State in which by law such insurance carriers may invest their funds" as provided in the omnibus clause of Article 7064. State Board of Insurance v. Southwest General *557 Insurance Co., 401 S.W.2d 369 (Tex.Civ. App.1966, writ ref'd n. r. e.). In that case the corporation in which Southwest General had invested was chartered in Delaware, but its principal office and place of business was in Dallas. Virtually all its assets and property were in Texas. It was held the investment was not a Texas security. The Court did not consider whether or not the stock would qualify as a similar security in Delaware.
The Texas Supreme Court has stated that before an investment may qualify as a tax-reducing investment under the omnibus clause it must have "a direct and beneficial relationship to the domestic economy of the State." State Board of Insurance v. Petroleum Casualty Co., 447 S.W.2d 666, 668 (Tex.1969).[1] Investment in the stock of a corporation whose only contact with a state is that it is the state of incorporation does not provide sufficient benefit to the economy of the state. "The omnibus clause is to be strictly construed" against increasing the number of tax-reducing securities. Id. at 668. As a result, Allstate's investments in corporate stocks and bonds should not be treated as similar securities.
We recognize that there are certain monetary benefits that accrue to the state of incorporation. See, e. g., Tex.Bus.Corp.Act Ann. art. 10.01 (Supp.1978) ($100.00 filing fee); Tex.Tax.-Gen.Ann. art. 12.01 (Supp. 1978) (franchise tax with a $55.00 minimum). These benefits are not, however, the sort of direct benefits that the legislature intended, or that flow from the investments specifically enumerated in Article 7064.
It is appellants' contention that the State Board of Insurance had a consistent administrative policy of including corporate stock within the omnibus clause. The State insists the departmental construction of the Act must be followed because of the long-standing agency policy. In this case we are controlled by the cited case law rather than policy of the agency. A departmental interpretation may not be followed when contrary to the unambiguous words of the statute. Citizens National Bank of Paris, Illinois v. Calvert, 527 S.W.2d 175 (Tex.1975).
To restate the conclusion of the Court, we find it unnecessary to decide whether or not Delaware is the comparison state because, excluding stocks and bonds as similar securities, appellee still prevails. Delaware is left with virtually no similar securities. Thus appellee has the bulk of its assets as Texas securities if Texas is compared to Delaware. In order for the State to have prevailed it must have shown that Delaware was not only the comparison state but also that corporate stocks and bonds qualified as similar securities there. Allstate could have satisfied its burden by either showing California and Illinois were the comparison states or by showing that stocks and bonds were not similar securities. We hold that Allstate satisfied its burden by proving the latter.
The judgment of the trial court is affirmed.
NOTES
[1] In that case the Supreme Court refused to consider U.S. Treasury bills as tax-reducing investments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567492/ | 10 So.3d 631 (2009)
CANETE
v.
STATE.
No. SC09-748.
Supreme Court of Florida.
April 28, 2009.
Decision without published opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567547/ | 10 So. 3d 1100 (2009)
MILIAN
v.
STATE.
No. SC09-841.
Supreme Court of Florida.
May 14, 2009.
Decision without published opinion. Rev.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567549/ | 10 So. 3d 680 (2009)
Aundra JOHNSON, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D07-2145.
District Court of Appeal of Florida, Third District.
April 29, 2009.
Rehearing Denied May 21, 2009.
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Magaly Rodriguez and Nicholas Merlin, Assistant Attorney General, for appellee.
Before COPE, RAMIREZ, and LAGOA, JJ.
LAGOA, J.
The appellant, Aundra Johnson ("Johnson"), appeals his conviction and sentence for fleeing a police officer.[1] For the following reasons, we affirm.
On appeal, Johnson raises three issues. We find only one argument merits discussion. Johnson contends that the trial judge erred in instructing the jury that the *681 law did not permit him to read back testimony. Specifically, the trial court instructed the jury as follows:
Now let me caution you regarding the communication, if you want to ask a question regarding the facts, let me caution you that we don't have I[sic] simultaneous transcript of these proceedings so we don't have a transcript and any questions regarding the facts, I will tell you that you must rely upon your own recollection of the evidence.
Additionally, prior to the jury retiring to deliberate, the trial court again instructed the jury as follows:
Ladies and gentlemen and, again, if you have a question regarding the facts I cannot reopen the facts. I cannot explain the evidence to you. The normal answer that I give you is that you must rely upon your own recollection of the evidence. If you have differences of opinion you must hash them out amongst yourselves.
Florida Rule of Criminal Procedure 3.410, however, states as follows:
After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.
"Under this rule, the trial court has wide latitude in the area of the reading of testimony to the jury. In this respect, the trial court may provide a limited, or partial, readback of testimony specifically requested by the jury, as long as that testimony is not misleading." Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001) (citations omitted).
In this case, the record shows that the issue was properly preserved for appellate review as Johnson specifically objected to the trial court's instructions to the jury. As this Court has previously held, it is error for the trial court to discourage the jury from requesting a read-back of testimony. See Davis v. State, 760 So. 2d 977, 978 (Fla. 3d DCA 2000). Indeed, "[w]hile the trial court has the discretion to deny a jury's request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited." Avila, 781 So.2d at 415.
Although the State concedes that the trial court erred in instructing the jury, the State argues that the error was harmless. Given the facts of this case, we agree that this error was harmless.[2] The evidence presented at trial was overwhelming as to the charge for which Johnson was convictedfleeing a police officer.
A City of Miami officer, while on routine patrol in his police vehicle, overheard a BOLO that the police were involved in a chase of a blue van that had been involved in a burglary. After learning of the chase, the officer saw the blue van run through a red light at a high rate of speed. The officer proceeded to turn on the patrol car's siren and emergency lights and began to chase the van. During the chase, the officer noticed that the tires of the van had blown out and eventually an individual, whom the officer at trial identified as Johnson, jumped out of the driver's side of the van. After Johnson jumped out of the van, the officer exited his vehicle and proceeded on foot to chase Johnson. *682 Eventually, after a struggle, Johnson was arrested.
Accordingly, for the foregoing reasons, we affirm Johnson's conviction and sentence.
Affirmed.
RAMIREZ, J., concurs.
COPE, J. (dissenting).
We should order a new trial. Defense counsel timely and correctly objected to the trial court's instruction. Neither the State nor the majority opinion has cited any authority for the proposition that this type of error is subject to harmless error analysis. Assuming arguendo that such an analysis could be applied, it is inappropriate here, where the jury had enough reasonable doubt about the State's case to acquit the defendant on a number of charges.
NOTES
[1] The jury found Johnson not guilty of burglary.
[2] While we find the instruction in this case harmless, this opinion should not be read to suggest that an erroneous procedural instruction always constitutes harmless error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567546/ | 579 S.W.2d 664 (1979)
Elizabeth S. GUIGNON, Petitioner-Appellant,
v.
James C. GUIGNON, Respondent.
No. 38075.
Missouri Court of Appeals, Eastern District, Division Three.
February 14, 1979.
Motion for Rehearing and/or Transfer Denied April 13, 1979.
Application to Transfer Denied May 17, 1979.
*665 Kenneth S. Lay, Tremayne, Lay, Carr & Bauer, Clayton, for petitioner-appellant.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
REINHARD, Presiding Judge.
Petitioner, former wife of respondent, appeals from an order of the trial court which modified an order for child support. The child support was increased from $37.50 per week per child to $50.00 per week per child for each of the two children.
Parties were divorced in January, 1971. The motion was heard on December 31, 1975. At the time of the divorce petitioner was unemployed. In 1973 she became a real estate agent and testified that her gross 1975 income was approximately $8,200.00. Respondent's 1974 tax return shows a gross income of $34,000.00, which is about three times his income when divorced. Included in that income was a bonus of $10,200.00. In fact respondent had received a bonus every year from 1971 through 1974. In 1975, his base salary was $24,000.00. At the hearing on the motion to modify the child support, the Secretary-Treasurer of respondent's company testified that at that time it had not been determined whether respondent would get a bonus for 1975. The court entered its order on January 2, 1976. Findings of fact and conclusions of law were neither requested nor given. Petitioner filed a motion to amend judgment or for a new trial. This was overruled. Prior to the ruling on the motion to amend petitioner requested that the court reopen the evidence to prove the subsequent payment of a bonus in early 1976.
*666 Petitioner contends that "[t]he trial court erred and abused its discretion in refusing to increase the child support paid to Petitioner above $50.00 per week because that allowance of child support is not commensurate with Respondent's present income and financial condition and is inadequate in the light of the children's needs."
Petitioner's main complaint centers around the fact that respondent's income has increased about 300% since the divorce but that the child support was increased by only 1/3. Further, petitioner notes that the evidence shows respondent's clear ability to pay a greater amount of child support.
In reference to petitioner's repeated citing of respondent's income as a base for the award, we note that an increase in a father's income is not, in itself, sufficient reason to modify the child support award. In re Marriage of Engelhardt, 552 S.W.2d 356, 358 (Mo.App.1977).
Our review of the conduct of the court is governed by the oft-quoted standards established in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).
§ 452.340 recites the various factors to be considered in allocating the responsibility for child support. It is significant that under § 452.340 RSMo (Supp.1975), "[t]he financial resources and needs of the noncustodial parent" comprise just one of the relevant factors. Although the father is primarily liable for support, the mother may also be called upon for support. Roberts v. Roberts, 553 S.W.2d 305, 306 (Mo.App.1977). Moreover, the statutory factors to be considered in awarding child support are non-exclusive. In re Marriage of Dodd, 532 S.W.2d 885, 888 (Mo.App.1976).
Here the children, ages 7 and 10, live with their mother in a home owned by her. Her present husband also lives there. Petitioner is now employed and earning income. She also has income from a trust and has a greater "net worth" than the respondent. The Court increased the respondent's share of child support to $50.00 per week per child [$433.00 per month]. The petitioner admits that in addition to these sums, the respondent is providing for the educational and medical expenses of the children.
Petitioner claims needs for the children in the amount of $1,078.00 per month. Of this amount approximately $350 is for food, clothing, laundry and cleaning, "child care," haircuts, gifts, pet expenses, and allowance. She further claims approximately $103.00 to cover recreational expenses. The balance of approximately $600.00 is for rent and mortgage (including monthly pro-rata of property taxes, insurance, etc.), utilities, car operation, insurance installment contracts, household items, personal loans, appliance repairs, exterminator, firewood, payments needed for new car, payments needed for a washer, and house repairs.
The award of child support is a matter properly within the sound discretion of the trial court. Roberts v. Roberts, 553 S.W.2d at 306; Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975). Considering the evidence as to the reasonable needs of the children, as to the items included by petitioner in figuring those needs, and as to respondent's provision of both the educational and medical expenses of the children, we cannot find that the court abused its discretion in increasing the allowance to $50.00 per week per child.
Petitioner complains that the court erred in failing to reopen the evidence before it ruled on her motion to amend the judgment or to grant a new trial. She apparently would have shown that a bonus was paid to respondent in early 1976. The reopening of the evidence after Judgment but before ruling on the after-trial motions is within the discretion of the trial court.
The petitioner further claims that the court "erred in refusing to consider Respondent's past bonus income in fixing the allowance.. . ." Petitioner relies on In re Marriage of Vanet, 544 S.W.2d 236, 242 (Mo.App.1976), which states that the court may consider both past and anticipated earning capacity as a relevant factor in realistically assessing the proper amount of child support.
*667 We have no quarrel with the holding in Vanet. In assessing the husband's capacity to pay child support, the court should consider a history of bonuses as a part of average income, unless there is evidence that such bonuses are unlikely to continue. At the time of the hearing, there was evidence that the defendant had received bonuses since 1971 and that the bonuses had averaged $416.00 per month through 1974. At the hearing, the only evidence as to a possible bonus for 1975 came from an office of respondent's company, offered by petitioner, who stated that no determination had been made as to a 1975 bonus. As previously stated, the court neither made nor was requested to make findings of fact and conclusions of law.[1] We must assume that the court considered the evidence before it in increasing the award of child support, and as stated above, we find no abuse of discretion in the court's action.
Affirmed.
CLEMENS and GUNN, JJ., concur.
NOTES
[1] Petitioner relies on the court's memorandum overruling her after-trial motion. Although the language in that memorandum is subject to differing constructions, we cannot interpret the court's statement as evidence that it failed to consider respondent's history of bonuses. We construe this language to be a reference to the petitioner's request to reopen the motion to receive evidence concerning a bonus allegedly paid subsequent to the hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567556/ | 10 So. 3d 1183 (2009)
Frank W. KENNIASTY, et al., Appellant,
v.
BIONETICS CORPORATION, etc., et al., Appellee.
Nos. 5D07-3625, 5D07-3646.
District Court of Appeal of Florida, Fifth District.
June 10, 2009.
Rehearing Denied June 10, 2009.
*1184 Frank W. Kenniasty, Melbourne, pro se.
Elizabeth Siano Harris, of Stadler & Harris, P.A., Titusville, for Appellants, William Moore and Judith Deitz.
Joe Teague Caruso, of Caruso, Swerbilow & Camerota, P.A., Merritt Island, for Appellee.
REVISED OPINION
GRIFFIN, J.
Frank W. Kenniasty ["Kenniasty"] and Judith Deitz and William Moore d/b/a Techniarts Engineering ["Deitz and Moore"] timely appeal the trial court's entry of final judgment awarding Bionetics Corporation ["Bionetics"] $39,025.78 in attorney's fees and costs against each pursuant to Section 57.105, Florida Statutes.[1] We reverse.
This case arose as a result of Deitz and Moore having prevailed in earlier litigation. In that case, Bionetics had filed a complaint against Deitz and Moore in 1999, alleging an ownership interest in motion picture film-processing ["MOPIX"] equipment that Deitz and Moore had purchased from the Defense Reutilization and Management Office. In its complaint, Bionetics also sought sequestration of the MOPIX equipment. The court granted an order of sequestration, and the MOPIX equipment was sequestered in a temperature and humidity-controlled environment at Deitz's & Moore's facility. There, the MOPIX equipment remained substantially assembled.
Deitz and Moore sought relief from the sequestration, offering to post a bond "in lieu of sequestration of the MOPIX [e]quipment so that [they] could continue their business opportunities." Bionetics rejected the offer, and the trial court denied the motion. Later, Deitz and Moore filed a motion to amend the order of sequestration because the lease had expired on their facility. The trial court ordered the Sheriff to move the MOPIX equipment to Bionetics' facility for storage.
The case went to trial and Deitz and Moore prevailed as the legal owners of the *1185 MOPIX equipment, and the trial court vacated the order of sequestration. When Deitz and Moore entered Bionetics' facility, they found it in a seriously degraded condition in a non-secure area with "a leaking roof, no air conditioning units, ... lack of ventilation, and extreme filth and dust." The equipment was disassembled and scattered on the facility's floor.
In 2001, Deitz and Moore, with Kenniasty as counsel, filed a four count complaint against Bionetics, alleging malicious prosecution in count one, negligent sequestration in count two, misappropriation of trade secrets in count three, and tortious interference with business relations in count four. Bionetics filed a motion to dismiss all counts. The trial court denied the motion as to count one, deferred in ruling as to count two, and granted the motion as to counts three and four with leave to amend.
Deitz and Moore filed an amended four count complaint on February 13, 2002, alleging malicious prosecution in count one, negligent sequestration in count two, misappropriation of trade secrets in count three, and tortious interference with business relations in count four. Bionetics once again filed a motion to dismiss all counts. The trial court granted the motion with prejudice as to count two, and with leave to amend as to counts one, three and four.
On April 10, 2002, Deitz and Moore filed a second amended complaint, which consisted of six counts: malicious prosecution in count one, misappropriation of trade secrets in count two, tortious interference with business relations in count three, invasion of privacy in count four, trespass to property in count five, and violation of the Procurement Integrity Act (41 U.S.C. § 423) in count six. Again, Bionetics filed a motion to dismiss all counts. The trial court granted the motion with leave to amend counts one through five, and with prejudice as to count six.
Deitz and Moore filed a third amended complaint on September 17, 2002, alleging malicious prosecution in count one, misappropriation of trade secrets in count two, and tortious interference with business relations in count three. Bionetics once more filed a motion to dismiss all counts. The trial court denied the motion as to count one but granted the motion as to counts two and three with leave to amend.
On November 12, 2002, Deitz and Moore filed a fourth amended complaint, alleging malicious prosecution in count one, misappropriation of trade secrets in count two, and defamation in count three. Bionetics filed a motion to dismiss counts two and three. The trial court denied the motion as to count two, but granted the motion as to count three with leave to amend.
On March 28, 2003, Bionetics filed a motion for award of attorney's fees pursuant to section 57.105, Florida Statutes (2002). The trial court deferred consideration and ruling on the award of attorney's fees until the conclusion of the trial. The case was tried without a jury and, at the close of Deitz's & Moore's case, Bionetics moved for involuntary dismissal, which the trial court granted. On July 21, 2004, Bionetics filed a second motion for an award of attorney's fees pursuant to Section 57.105, Florida Statutes.
Kenniasty and Deitz and Moore correctly argue on appeal that the trial court erred in awarding section 57.105 fees because Bionetics failed to provide proper notice under the safe harbor provision of the statute. Section 57.105(4) was added to Section 57.105 by an amendment that took effect on July 1, 2002. Section 57.105(4) provides:
A motion by a party seeking sanctions under this section must be served but *1186 may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
Although Deitz and Moore filed suit prior to the effective date of section 57.105(4), this safe harbor provision applied because Bionetics filed its motion for attorney's fees on March 28, 2003, well after its July 1, 2002, effective date. Bionetics erroneously contends that the safe harbor provision of section 57.105(4) represented a substantive rather than procedural statutory change and therefore could not be applied in this lawsuit.
In Hampton v. Cale, Inc., 964 So. 2d 822, 823 (Fla. 4th DCA 2007), the Fourth District Court of Appeal held that the "2002 amendment to section 57.105, which requires twenty-one days' notice to the non-moving party to withdraw a challenged claim or defense, is not retroactive." In describing the operation of the amendment, the Hampton court relied on an earlier Fourth District Court of Appeal decision, Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So. 2d 709, 711-12 (Fla. 4th DCA 2004). In Maxwell, the lawsuit had been filed prior to the amendment. The Hampton court explained:
First, as we noted earlier, in Maxwell we did not decide the issue before us in this case, which is whether the twenty-one day safe harbor was retroactive. We applied the amendment in Maxwell because the motion for section 57.105 fees had been filed after the effective date of the statute.
964 So.2d at 825 (emphasis added, citations omitted). We have previously observed in Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture, 858 So. 2d 1232, 1233 (Fla. 5th DCA 2003), that the 1999 amendments to section 57.105 applied to actions taken, positions maintained, or papers filed subsequent to the effective date of the amendment.
Taken together, Hampton, Maxwell, and Airtran lead to the common sense conclusion that the safe harbor provision applies in situations like this case where the lawsuit was filed before July 1, 2002, but the motion for attorney's fees was not filed until after this date. Here, because Bionetics failed to give proper notice under section 57.105(4) as to the counts for invasion of privacy and violation of the Procurement Integrity Act, the trial court erred in awarding Bionetics attorney's fees for these counts.
Bionetics claims that even if the safe harbor provision applies, it did comply with the safe harbor provision as it relates to the count for tortious interference with business relations because Bionetics' attorney sent Kenniasty a letter on April 5, 2002, advising Kenniasty and Deitz and Moore that Bionetics intended to seek attorney's fees under section 57.105 in the event that Deitz and Moore continued with the claims for misappropriation of trade secrets and tortious interference with business relations. Initially, we note with approval the recent decisions of the Third District Court of Appeal in Anchor Towing, Inc. v. Florida Department of Transportation, 10 So. 3d 670, (Fla. 3d DCA 2009), and Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008), both of which conclude that the word "motion" in the statute means "motion", not a letter and that notice by letter does not meet the restrictive terms of the statute.[2]
*1187 Additionally, we consider whether awarding fees for the tortious interference count was permissible under the terms of section 57.105. We are somewhat hampered in our examination of the trial court's award of fees under Section 57.105 for the tortious interference with business relations count because the judge who entered the order made no findings and he is now deceased. See Daniels v. Reeves, 712 So. 2d 839, 840 (Fla. 1st DCA 1998) (award of section 57.105 attorney's fees reversed "because the order awarding attorney fees contain[ed] no findings of fact"). See also Glisson v. Jacksonville Transp. Auth., 705 So. 2d 136, 137 (Fla. 1st DCA 1998). This matter is further complicated because the trial court's sanction was for a claim it denominated "tortious interference with contract," a claim never filed by Deitz and Moore. The complaints alleged "tortious interference with business relations." There is simply no way to ascertain whether the trial court simply made a scrivener's error or whether it made a substantive error.
In Magre v. Charles, 729 So. 2d 440, 443-44 (Fla. 5th DCA 1999), this Court identified the four elements of tortious interference with business relations as follows:
1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; 2) knowledge of the relationship on the part of the defendant; 3) an intentional and unjustified interference with that relationship by the defendant; and 4) damage to the plaintiff as a result of the breach of the relationship.
Kenniasty contends that the second amended complaint sufficiently states a cause of action for tortious interference with business relations and that the trial court erred in finding it frivolous either as a matter of law or fact. After examining this count, we are bound to agree that it does not meet the threshold required for a finding of frivolousness under section 57.105. The allegations are prolix and messy, but they do state a claim. We reverse the award of attorney's fees in favor of Bionetics.
The trial court also erred in assessing costs against Kenniasty personally. Whether the quality of his representation might support a claim on the part of Deitz and Moore to recover any portion of costs assessed against them is not determinable in this appeal.
REVERSED and REMANDED.
TORPY, J., and PLEUS, R., Senior Judge, concur.
NOTES
[1] Kenniasty and Deitz and Moore separately filed notices of appeal. This Court consolidated both cases for purposes of appeal.
[2] This point was made in Kenniasty's brief, but we failed to address it in our earlier opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567563/ | 10 So. 3d 1175 (2009)
Ryan EZER, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-772.
District Court of Appeal of Florida, Fourth District.
May 27, 2009.
*1176 Ryan Ezer, Punta Gorda, pro so.
No appearance required for appellee.
WARNER, J.
We affirm the trial court's summary denial of appellant's motion for postconviction relief, as all of the issues raised in appellant's 105-page motion are conclusively refuted by the plea colloquy and other proceedings in this case. We also write to request that the Florida Supreme Court consider a page limitation on postconviction motions.
Ezer entered a plea in four felony cases: 96-15415CF10A, possession of cocaine and attaching unauthorized automobile tag; 99-8694CF10A, burglary of a dwelling; 00-9168CF10A, trafficking in oxycodone, resisting an officer without violence, and driving while license suspended; and 00-13199CF10A, burglary of dwelling and two counts of uttering a forged instrument. The record contains a copy of the plea hearing.
Ezer entered into a substantial assistance agreement with the state, and the prosecutor detailed the terms of the agreement on the record. Sentencing was deferred for 90 days during which Ezer was to assist police in making drug-related arrests. If the state found that Ezer had met his obligation by sufficiently assisting police, the prosecutor would recommend a sentence below the 15-year mandatory minimum required for the trafficking offense and below the 78.6 months which was the minimum permissible sentence under the scoresheet.
Ezer did not provide any assistance to police and absconded from the State of Florida. He did not appear at his January 2001 sentencing hearing. He was apprehended in New Jersey in April 2005 and extradited back to Florida. Before sentencing, Ezer, through privately-retained attorneys, filed two motions to withdraw his pleas based upon claims of mental disability, coercion, and ineffective assistance of counsel. The motions were denied after *1177 an evidentiary hearing, and the court imposed the mandatory minimum 15-year term on the trafficking count, as well as concurrent sentences of 78.6 months on other felony counts. On direct appeal, this court affirmed without opinion the trial court's denial of the motions to withdraw the pleas. Ezer v. State, 973 So. 2d 458 (Fla. 4th DCA 2008).
Thereafter, Ezer filed a motion for postconviction relief raising 11 claims in a 105-page motion. The trial court summarily denied relief, attaching the plea colloquy and the evidentiary hearing on the presentencing motions to withdraw the pleas as part of the record incorporated in its order.
All of the claims alleging ineffective assistance of counsel, or raising issues as to Ezer's mental competency, are fully refuted by the lengthy and comprehensive plea colloquy which the trial court originally conducted on this case and the evidence that the court heard on the motions to withdraw the pleas. Some of the claims have already been litigated and rejected in the direct appeal, and others regarding medication Ezer was taking at the time of the plea colloquy are conclusively refuted by his sworn statements during the plea colloquy. A defendant cannot go behind his sworn assertions in a plea colloquy and allege that psychotropic drugs rendered him incapable of entering a plea. Iacono v. State, 930 So. 2d 829 (Fla. 4th DCA 2006). The plea colloquy should not be rendered a meaningless charade. Scheele v. State, 953 So. 2d 782, 785 (Fla. 4th DCA 2007).
Assuming that Ezer's answers were incorrect at the plea colloquy and were actually a manifestation of his alleged incapacitated state, this issue was litigated and resolved in the motions to withdraw pleas on which he had a full evidentiary hearing prior to sentencing. In sum, we find all of his complaints completely lacking in merit.
He also challenges his conviction for trafficking in oxycodone, claiming that section 893.135(1)(c)1. is unconstitutional because it punishes the possession of oxycodone or "any mixture containing" oxycodone. In Paey v. State, 943 So. 2d 919, 926-27 (Fla. 2d DCA 2006), the court rejected this same argument and noted that the Florida Supreme Court in State v. Travis, 808 So. 2d 194 (Fla.2002), held that the weight of the entire mixture of the oxycodone tablets should be considered when determining whether the trafficking weight is met.
Finally, Ezer complains that the disposition sheet for his case indicates that he was convicted of burglary of an occupied dwelling. He argues that the Department of Corrections has classified him based on the "occupied" dwelling charge which is considered a "violent crime" as opposed to burglary of an unoccupied dwelling which is allegedly not considered violent. Ezer's judgments reflect convictions for burglary of a dwelling under section 810.02(1). The judgments do not indicate that the dwelling was occupied. Burglary of a dwelling is a second-degree felony regardless of whether the dwelling was occupied. See § 810.02(3)(a), (b), Fla. Stat. (2000). If the DOC is denying him eligibility for programs based on an incorrect classification of his offense, then Ezer needs to raise that issue administratively and pursue any other available remedies. He has not stated a cognizable claim for postconviction relief on this ground.
We also note that this excessively lengthy motion from a conviction entered following a plea demonstrates why a strict page limitation should be imposed on rule 3.850 motions. See Hedrick v. State, 6 So. 3d 688 (Fla. 4th DCA 2009) (discussing *1178 the need for a page limitation on rule 3.850 motions and citing case law from other states which impose 10 and 20-page limitations). Trial courts currently have discretion to dismiss excessively lengthy motions and set page limitations, but no rule of procedure currently imposes a specific page limitation. See Gidney v. State, 925 So. 2d 1076 (Fla. 4th DCA 2006) (commenting on an estimated 250-page post-conviction relief motion); Schwenn v. State, 958 So. 2d 531 (Fla. 4th DCA 2007) (explaining that trial court has authority to place page limitations on post-conviction filings and 50 pages is a reasonable benchmark).
Florida Rule of Criminal Procedure 3.851(e) places a 75-page limit on death penalty postconviction motions. If the far more complicated and consequential death penalty postconviction relief motions are page-limited, then why can a defendant with a considerably shorter sentence with vastly fewer issues be able to file much longer motions? For the trial and appellate courts, this is an important workload issue, as the number of postconviction relief motions continues to grow. The supreme court should act to limit the motions filed in rule 3.850 and rule 3.800 cases.
POLEN and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567573/ | 10 So. 3d 632 (2009)
POSEY
v.
McNEIL.
No. SC08-971.
Supreme Court of Florida.
May 6, 2009.
Decision without published opinion Habeas Corpus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567560/ | 10 So. 3d 152 (2009)
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner,
v.
Israel AMAYA and The State of Florida, Respondents.
No. 4D08-4678.
District Court of Appeal of Florida, Fourth District.
March 25, 2009.
*153 Laurel Hopper, Assistant Regional Counsel, Department of Children and Families, Fort Pierce, for Petitioner.
Diamond Litty, Public Defender, and Katharine Alonzo, Assistant Public Defender, Fort Pierce, for Respondent Israel Amaya.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for Respondent State of Florida.
PER CURIAM.
The Department of Children and Family Services (DCF) petitions for a writ of certiorari seeking to quash a trial court order that committed incompetent criminal defendant Israel Amaya[1] to DCF's legal custody and placed him on conditional release under section 916.17, Florida Statutes (2008). The trial court ordered DCF to find Amaya an appropriate treatment facility within 15 days and made DCF responsible for Amaya's supervision and care while on conditional release. Because Amaya does not meet the criteria for commitment to the Department, the Department cannot be made responsible for Amaya's care and supervision. We therefore grant the petition and quash the trial court's order.
Factual Background
In June 2007, Amaya was arrested for forceful sexual battery of his 13-year-old step-daughter. The day after his arrest, he complained of weakness in his left side and continuous headache and was transported to a hospital. He was diagnosed with an inoperable brain tumor and was advised that he had approximately one year to live. Amaya was determined to be incompetent and committed to a DCF *154 treatment facility, but subsequent evaluations in August 2008 revealed that Amaya did not meet the criteria for commitment. The evaluations found that Amaya is not competent to proceed and that he is not likely to be restored to competency because of the metastasizing, inoperable brain tumor.[2]
In November 2008, after reviewing the reports and considering oral testimony, the trial court entered an order finding that although Amaya did not qualify for commitment to a treatment facility to restore competency, he is in need of community placement. The order provides:
3. Accordingly, the Defendant is hereby released and is hereby committed to the Department of Children & Families, pursuant to s. 916.17, Fla. Stat. (2008) and Rules 3.212(d) and 3.219, Fla. R.Crim. P., on the following release conditions:
(a) The Department shall place the Defendant in an appropriate facility within 15 days of receiving this order. The Department shall provide the court with the name and address of the Defendant's placement within 30 days of this order.
The order requires that Amaya remain supervised and requires DCF, or its designees, to immediately notify the court if Amaya violates any of the conditions of his release. Amaya is not to be discharged from conditional release until further order of the court, and DCF is to provide reports every six months regarding Amaya's compliance with release conditions and progress in treatment.
DCF timely petitions this court for a writ of certiorari and contends that the trial court departed from the essential requirements of law by committing Amaya to its custody under section 916.17, Florida Statutes, and requiring DCF to locate and fund an appropriate placement. We agree.
Jurisdiction
Certiorari jurisdiction lies to review DCF's claim that the trial court has acted in excess of its jurisdiction by ordering DCF to undertake responsibilities beyond what is required by statute. See Dep't of Children & Family Servs. v. Leons, 948 So. 2d 988 (Fla. 4th DCA 2007) (denying extraordinary writ petitions filed by DCF which challenged trial court orders that required DCF to provide treatment to incompetent, committed defendants held in jail awaiting transfer to a treatment facility); Dep't of Children & Family Servs. v. Wehrwein, 942 So. 2d 947 (Fla. 5th DCA 2006) (granting DCF's petition for writ of certiorari and quashing a trial court order that committed an incompetent defendant to DCF's custody in violation of the statute because the defendant could not be restored to competency).
Analysis
In section 916.105(1), the legislature described the scope of DCF's responsibilities:
It is the intent of the Legislature that the Department of Children and Family Services and the Agency for Persons with Disabilities, as appropriate, establish, locate, and maintain separate and secure forensic facilities and programs for the treatment or training of defendants who have been charged with a felony and who have been found to be *155 incompetent to proceed due to their mental illness, mental retardation, or autism, or who have been acquitted of a felony by reason of insanity, and who, while still under the jurisdiction of the committing court, are committed to the department or agency under the provisions of this chapter.
§ 916.105(1), Fla. Stat. (2008) (emphasis added). The statute also provides:
(7) "Department" means the Department of Children and Family Services. The department is responsible for the treatment of forensic clients who have been determined incompetent to proceed due to mental illness or who have been acquitted of a felony by reason of insanity.
§ 916.105(7), Fla. Stat. (2008) (emphasis added).
Section 916.106(9) defines a "forensic client" as one who has been "committed" to the Department pursuant to statutory criteria:
(9) "Forensic client" or "client" means any defendant who has been committed to the department or agency pursuant to s. 916.13, s. 916.15, or s. 916.302.
(emphasis added). Section 916.13 permits a court to involuntarily commit a defendant charged with a felony who is found incompetent to proceed because of mental illness. Section 916.13(2) states:
A defendant who has been charged with a felony and who has been adjudicated incompetent to proceed due to mental illness, and who meets the criteria for involuntary commitment to the department under the provisions of this chapter, may be committed to the department, and the department shall retain and treat the defendant.
(emphasis added). To be committed to the Department's legal custody, a court must find by clear and convincing evidence that the criteria set out in section 916.13(1), Florida Statutes, are met. All parties agree, and the trial court correctly determined, that Amaya does not qualify for commitment under section 916.13.
The trial court purported to commit Amaya to DCF pursuant to section 916.17, which provides:
(1) Except for an inmate currently serving a prison sentence, the committing court may order a conditional release of any defendant in lieu of an involuntary commitment to a facility pursuant to s. 916.13 or s. 916.15 based upon an approved plan for providing appropriate outpatient care and treatment. Upon a recommendation that outpatient treatment of the defendant is appropriate, a written plan for outpatient treatment, including recommendations from qualified professionals, must be filed with the court, with copies to all parties. Such a plan may also be submitted by the defendant and filed with the court with copies to all parties. The plan shall include:
(a) Special provisions for residential care or adequate supervision of the defendant.
(b) Provisions for outpatient mental health services.
(c) If appropriate, recommendations for auxiliary services such as vocational training, educational services, or special medical care.
In its order of conditional release, the court shall specify the conditions of release based upon the release plan and shall direct the appropriate agencies or persons to submit periodic reports to the court regarding the defendant's compliance with the conditions of the release and progress in treatment, with copies to all parties.
(Emphasis added). Section 916.17 provides an alternative to placement in a *156 treatment facility for defendants committed to DCF under section 916.13. Contrary to the trial court's order, an incompetent defendant may not be committed to DCF if the statutory criteria are not met.
The conditional release provisions of the statute and the rules implementing the statute indicate that conditional release under section 916.17 is appropriate only when a defendant meets the criteria for commitment to DCF.
Florida Rule of Criminal 3.219(a), which implements the conditional release of section 916.17, provides:
Release Plan. The committing court may order a conditional release of any defendant who has been committed according to a finding of incompetency to proceed or an adjudication of not guilty by reason of insanity based on an approved plan for providing appropriate outpatient care and treatment. When the administrator shall determine outpatient treatment of the defendant to be appropriate, the administrator may file with the court, and provide copies to all parties, a written plan for outpatient treatment, including recommendations from qualified professionals. The plan may be submitted by the defendant.
(Emphasis added). Thus, for conditional release under section 916.17 to be appropriate, the statute and rules contemplate that the defendant must initially meet the criteria for commitment.
Rule 3.219(a) permits "the administrator" of the treatment facility where a defendant is committed to file an approved plan for providing outpatient care in lieu of involuntary commitment to a treatment facility. Here, no plan for outpatient treatment was provided, and Amaya does not meet the conditions for commitment, making "conditional release" under section 916.17 unauthorized. The trial court ordered DCF to find an appropriate facility and made it responsible for Amaya's care and supervision. Essentially, the court ordered release and then required DCF to formulate a plan after the fact.
Rule 3.219(b) further demonstrates that conditional release under 916.17 is appropriate only for a defendant who has been committed to DCF:
(b) Defendant's Failure to Comply. If it appears at any time that the defendant has failed to comply with the conditions of release, or that the defendant's condition has deteriorated to the point that inpatient care is required, or that the release conditions should be modified, the court, after hearing, may modify the release conditions or, if the court finds the defendant meets the statutory criteria for commitment, may order that the defendant be recommitted to the Department of Children and Family Services for further treatment.
Fla. R.Crim. P. 3.219(b) (emphasis added). The word "recommitted" contemplates a previous "commitment." Nothing in the statutes or rules suggest that an incompetent defendant, who does not meet the criteria of section 916.13, can be "committed" to DCF for purposes of conditional release under section 916.17.
DCF is responsible for the treatment of "forensic clients" that have been committed under section 916.13. DCF is not responsible for providing treatment to incompetent defendants who have not properly been committed to DCF's legal custody. See State, Dep't of Health and Rehabilitative Servs. v. Myers, 696 So. 2d 863 (Fla. 4th DCA 1997) (granting a writ of certiorari and finding that section 916.105(1) did not require HRS to pay for mental health treatment for a pretrial detainee who had not been committed to the Department as a "forensic client").
*157 Amaya does not qualify for commitment to DCF under section 916.13, 916.15, or 916.302; he is, therefore, not a "forensic client" as defined by the statute, and DCF cannot be made responsible for his care and supervision as ordered by the trial court. In this situation, the county in which Amaya was arrested may ultimately be responsible for paying the cost of treatment as long as Amaya remains in custody. See § 901.35(2)(a), Fla. Stat. (2008) (providing that the county is responsible for payment where reimbursement from other sources is unavailable); Myers, 696 So.2d at 865-66.
We are sympathetic to the difficult situation facing the circuit judge in this case and recognize that the judge attempted to fashion a solution that would avoid the defendant's indefinite incarceration and that would provide a way for the defendant to receive palliative care.[3] Amaya requires supervision and may need hospice or palliative care, but he does not meet the statutory criteria for commitment to DCF under Chapter 916. The court attempted to provide for supervision and treatment but could not require DCF to provide these services where the criteria for commitment are not met.
The proper course when an incompetent defendant does not meet the criteria for commitment, and cannot be restored to competency, is for the State to initiate civil commitment proceedings under the Baker Act or for the court to release the defendant "on appropriate conditions" as provided in Rule 3.212(d). See Abreu-Gutierrez v. James, 1 So. 3d 262, 267 (Fla. 4th DCA 2009); Dep't of Children & Families v. Gilliland, 947 So. 2d 1262, 1263 (Fla. 5th DCA 2007); Oren v. Judd, 940 So. 2d 1271, 1274 (Fla. 2d DCA 2006); Mosher v. State, 876 So. 2d 1230, 1232 (Fla. 1st DCA 2004).
Florida Rule of Criminal Procedure 3.212(d) provides that, when an incompetent defendant does not meet the criteria for commitment to the Department, the court may release the defendant "on appropriate conditions" which may include outpatient treatment and monitoring. The conditions placed on release under Rule 3.212(d), when a defendant does not qualify for commitment, should not be confused with the "conditional release" that is permitted under section 916.17 as an alternative to commitment to a treatment facility under section 916.13. Although both types of release contain conditions, the court cannot make DCF responsible for the care and supervision of incompetent defendants who do not qualify for commitment under Chapter 916. Ultimately, DCF might be responsible for Amaya's care if he is committed pursuant to the Baker Act, but the statutory procedures under that chapter must be followed and Amaya must be properly committed to DCF's custody before that agency should be burdened with providing for his treatment or care. See § 394.467, Fla. Stat. (2008) (providing for involuntary inpatient placement).
Our decision in Myers provides that the Department cannot be made responsible for funding the treatment of incompetent defendants who have not been properly committed to DCF. 696 So.2d at 866-67. Thus, the order in this case constitutes a clear departure from the essential requirements of law.
Conclusion
Chapter 916 is known as the Forensic Client Services Act. § 916.10, Fla. Stat. *158 (2008). The legislature defined a "forensic client" and set forth specific statutory criteria that must be met to commit a defendant under the Act. The trial court's order committing Amaya to DCF custody where the criteria for commitment are not met departs from the essential requirements of law and is hereby quashed. This case is remanded for further proceedings consistent with this opinion.
GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.
NOTES
[1] Amaya died on February 7, 2009, while this opinion was circulating in the court. We nonetheless issue the opinion because the issue involved is one that is likely to recur.
[2] According to one report, Amaya believes the current year is 1977 and that he lives in New York; he does not recall ever living in the State of Florida. His memory is greatly impaired, and he reports seeing angels coming toward him frequently. Amaya is currently confined to a wheelchair and significantly weaker than when the doctor examined him a year before.
[3] A similar situation involving a terminally ill, incompetent criminal defendant arose and was discussed in Maxwell v. State, 974 So. 2d 505 (Fla. 5th DCA 2008). The court in that case, however, did not decide what would occur, or who would be responsible, if the defendant remained incompetent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567548/ | 579 S.W.2d 888 (1979)
Carmen CROWE and husband Phillip Crowe, Plaintiffs-Appellants,
v.
JOHN W. HARTON MEMORIAL HOSPITAL et al., Defendant-Appellee.
Court of Appeals of Tennessee, Middle Section.
January 5, 1979.
Certiorari Denied April 9, 1979.
*890 Buddy D. Perry, Chattin & Perry, Winchester, Robert J. Shockey, Shockey, Boehm & Pinchak, Chattanooga, for plaintiffs-appellants.
James H. Henry, Henry & McCord, Sam Sawyer, Tullahoma, Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for defendant-appellee.
Certiorari Denied by Supreme Court April 9, 1979.
OPINION
DROWOTA, Judge.
This suit arises from an action for damages for medical malpractice. The defendant hospital admitted liability, but asserted that its liability was limited in amount to $20,000.00 by the Tennessee Governmental Tort Liability Act, T.C.A. §§ 23-3301 et seq. Accordingly, the defendant moved for partial summary judgment. The trial court granted the motion, and the plaintiff appeals, alleging that the Tennessee Governmental Tort Liability Act contravenes the due process and equal protection clauses of fourteenth amendment of the United States Constitution and article 1, sections 8 and 17, of the Constitution of Tennessee.
On June 18, 1977, Carmen Crowe was admitted to the John W. Harton Memorial Hospital. While Mrs. Crowe was in the hospital's care, an employee-nurse erroneously administered a wrong medication, the administration of which caused injury to Mrs. Crowe. She brought suit against the hospital and Charles W. Marsh, Jr., the physician allegedly in charge of the operating room at the time of injury, for damages resulting from the nurse's negligence. Mrs. Crowe's husband, Phillip, also brought suit for medical expenses sustained and for loss of consortium. A voluntary non-suit was subsequently taken as to Dr. Marsh, and the hospital, while admitting liability, asserted that as an instrumentality of the City of Tullahoma, its liability is limited in amount by the Tennessee Governmental Tort Liability Act.
I.
Article 1, section 17 of the Tennessee Constitution states:
That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.
Although the appellants apparently rely upon the first sentence of this section, it is the second which is determinative in this case. It has been interpreted as a grant of sovereign immunity to the State, and, accordingly, no suit against the State may be sustained absent express authorization from the Legislature. E.g., Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429 (1967). Even where authorization exists, suits may only be brought in those courts and under those conditions specified by the Legislature, see Long v. City of Knoxville, 62 Tenn. App. 665, 467 S.W.2d 309 (1971), including time limits for filing suit, Tennessee Electric Power Co. v. Fayetteville, 173 Tenn. 111, 114 S.W.2d 811 (1938) (20 day filing requirement held constitutional), and damage limitations. Although municipalities do not fall within the aegis of the sovereign immunity doctrine if they are *891 acting in a proprietary capacity, see Williams v. Morristown, 32 Tenn. App. 274, 222 S.W.2d 607 (1949), they are considered arms of the State in the exercise of their governmental functions, and, hence, are immune from suit. Scates v. Board of Commissioners, 196 Tenn. 274, 265 S.W.2d 563 (1954).
The doctrine of municipal sovereign immunity has been strongly criticized, and at least 27 states have eliminated it either by legislative or judicial action. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) (well-reasoned and exhaustive treatise against municipal sovereign immunity). The doctrine has also been the subject of scathing attack in this State, Cooper v. Rutherford County, 531 S.W.2d 783, 785-92 (Tenn. 1975) (Henry, J., dissenting), but neither the Supreme Court nor the Legislature has moved to abrogate the doctrine. Thus, although it is not clear how the concept of sovereign immunity was extended to Tennessee municipalities, see id., it has been firmly fixed in the law of this State for over 100 years; it is not the province of this Court to extinguish the doctrine. See States v. Board of Commissioners, 265 S.W.2d at 567 (eradication of sovereign immunity is in the sphere of the Legislature, not the courts).
Insofar as the Tennessee Governmental Tort Liability Act extends immunity from suit to municipalities acting in their governmental capacities, it merely codifies existing constitutional doctrine, which is the "law of the land." Hence, the appellant's contention that the Act works a deprivation of property in controvention of article 1, section 8 of the Constitution is groundless; that section expressly permits a person to be "deprived of his ... property" if such deprivation is pursuant to a judgment of his peers or the law of the land.
As discussed above, the key determinant of constitutional immunity is whether the activity giving rise to suit is of a governmental or proprietary nature. This rule is, however, much easier in the formulation than the application. The distinction between the two types of activity has never been clearly enunciated by the courts of this State. As this Court succinctly opined in Williams v. Morristown, 222 S.W.2d at 610, "To define specifically the terms `governmental capacity' and `proprietary capacity' is impossible." In the context of a municipal water system, the Williams court used a test based on the "profit" orientation of the activity, suggesting that activities conducted on a commercial basis for revenue are proprietary, but that enterprises funded from the public coffers are governmental. A strict "user charge" public fund distinction was impliedly rejected in McMahon v. Baroness Erlanger Hospital, 43 Tenn. App. 128, 306 S.W.2d 41 (1957), however. In that case, whose facts are substantially similar to those in the case at bar, 86% of the defendant hospital's operating budget was derived from patient fees. Nonetheless, the court found the operation of the hospital to be a governmental exercise, using as a test the motives of the governmental entities involved: the intent to provide for the general welfare (governmental activity) versus the intent to raise revenues (proprietary activity). In reaching its decision the court considered the following factors: trustees serving without pay, the actual appropriation of tax revenues to support the operation of the hospital, the substantial number of charity patients cared for, and the reduced rates charged to persons of lower incomes.
A close reading of McMahon reveals that the governmental-proprietary test is actually two-tiered. The first tier examines the activity giving rise to suit to determine whether it has as its basis a traditional governmental function. The McMahon court apparently made the determination that the operation of a hospital is in furtherance of a traditional governmental function (provision for the public health) without expressly so stating. See 43 Tenn. App. at 130, 306 S.W.2d 41. The second part of the test looks at the operation of the *892 specific enterprise involved in the suit to determine whether its primary purpose is to promote the general welfare of the municipality's citizens.
The first tier is a question of law, the second a question of fact. While the answer to the second dictates the outcome of the case, the answer to the first determines the burden of proof. If an activity is found to constitute a traditional governmental function, a presumption arises in favor of the municipality. If, on the other hand, an activity is found not to be a traditional function of government, the municipality must bear the burden of the factual issues. A "traditional governmental function" is one which is able to be adequately performed only by government, is traditionally expected to be performed by government, or is required to be performed by the command of the Legislature or the constitution.
This Court affirms the McMahon court's conclusion that the operation of a municipal hospital is a traditional governmental function and finds that the factors used by that court are proper indices of a municipality's motives.
If a municipal activity is found to constitute a proprietary, rather than a governmental function, the municipality is not protected from suit by article 1, section 17. See, e.g., Williams v. Morristown, supra. The Tennessee Governmental Tort Liability Act, however, purports to apply to municipalities in the exercise of their proprietary, as well as their governmental, functions. T.C.A. § 23-3307. As discussed above the application of the act to governmental functions merely echoes constitutional doctrine, and, in that sense, the Act is an abrogation of sovereign immunity within the damage limits it sets. To the extent the Act covers proprietary functions, on the other hand, it is not an abrogation of immunity, but is an extension of immunity in an area where it otherwise does not exist. The issue, therefore, is whether the Legislature may, by statute, grant immunity from suit to municipalities.
The Legislature possesses unlimited power to enact laws except as specifically limited by the Constitution. Dennis v. Sears, Roebuck & Co., 223 Tenn. 415, 446 S.W.2d 260 (1969). There is no express constitutional prohibition against the extension of immunity to municipalities operating in their proprietary, as well as their governmental, capacities. The traditional rationale for establishing a special category of immunity for municipalities exercising their governmental functions include that the city does not profit from the exercise of its governmental functions, Howard v. City of Worcester, 153 Mass. 426, 27 N.E. 11 (1891), that the city cannot properly conduct government if it must utilize its tax revenues to compensate for the torts of its agents, and that it is unreasonable to hold the city liable for the torts committed by its agents in the performance of state-imposed duties, Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032, 1034 (1917).
The Legislature could reasonably find that these, or similar, concerns compel the extension of immunity here involved. Moreover, as Justice Henry pointed out in Cooper v. Rutherford County, supra, the specific distinction between governmental and proprietary functions has eluded the Tennessee courts and has been a source of inconsistent decisions in this State; by extending immunity to municipalities in the exercise of all functions, the Legislature has accorded a greater measure of certainty to this confused area of the law. Accordingly we find the provisions of the Tennessee Governmental Tort Liability Act which extend immunity to municipalities operating in their proprietary capacities to be a valid legislative enactment.
II.
Since there is no suspect class or fundamental right involved in this case, the *893 federal constitutional question is whether the State of Tennessee has a rational basis for waiving the sovereign immunity of its municipalities. It requires little analysis to ascertain that the answer is in the affirmative. The appellants apparently labor under the misapprehension that the issue is whether the State has a rational basis for according immunity. Insofar as their injuries arose from the exercise of a governmental function, such a posture ignores the constitutional doctrine at work in this State. Thus, if the Tennessee Governmental Tort Liability Act were to be declared unconstitutional, the appellants would be left without any remedy, however limited in amount their current one might be. Even if the operation of this hospital were of a proprietary nature, the Legislature has a rational basis for the enactment for purposes of the federal constitution (ex. city cannot properly conduct government if it must use its tax revenues to compensate for the torts of its agents).
III.
This suit is not governed by the Medical Malpractice Act as contended by the appellants. The trial judge properly found the Tennessee Governmental Tort Liability Act to be the applicable law, since by its terms it is the exclusive source of remedy in this case:
Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of said governmental entities wherein said governmental entities are engaged in the exercise and discharge of any of their functions... .
T.C.A. § 23-3307. "Governmental entities" include municipalities and their instrumentalities. Id. § 23-3302(1).
For the reasons stated herein, the order of the trial court is affirmed.
Affirmed.
SHRIVER, P.J., and TODD, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567552/ | 10 So. 3d 617 (2007)
Eddie James PERKINS
v.
STATE of Alabama.
CR-06-1121.
Court of Criminal Appeals of Alabama.
November 2, 2007.
*618 Eddie James Perkins, pro se.
Kim T. Thomas, gen. counsel, and Greg Biggs, asst. gen. counsel, for appellee Alabama Department of Corrections.
McMILLAN, Judge.
The appellant, Eddie James Perkins, appeals from the circuit court's denial of his petition for writ of habeas corpus filed July 27, 2006, in which he claimed that the Alabama Department of Corrections "DOC" had not credited him with time previously served in cases no. CC-72-29130 and no. CC-72-29095 in the Jefferson Circuit Court. In case no. CC-72-29130 Perkins entered a guilty-plea for robbery on February 22, 1972, and was sentenced to 20 years. In case no. CC-72-29095 Perkins was a convicted of assault with intent to murder on June 7, 1972, and was sentenced to 10 years, to run concurrently with his sentence in case no. CC-72-29130.
A petition for writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time an inmate must serve in prison. Day v. State, 879 So. 2d 1206, 1207 (Ala. Crim.App.2003); Graves v. State, 710 So. 2d 535 (Ala.Crim.App.1997). We assume DOC's calculations are correct unless there is some proof to the contrary. Morrison v. State, 687 So. 2d 1259 (Ala.Crim. App.1996).
The State filed a motion to dismiss Perkins's petition on November 21, 2006, in which it noted:
"Inmate Eddie James Perkins was sentenced February 22, 1972 to 20 years on CC-72-29130, and on June 7, 1972 was sentenced to 10 years on CC-72-29095 with 84 days of jail credit. He was subsequently sentenced to a consecutive sentence May 3, 1979 to 60 years with 217 days of jail credit on CC-78-550, sentenced October 5, 1979 to 60 years on CC-79-021, and sentenced October 5, 1979 to 20 years on CC-78-549. Inmate Perkins has been credited with all applicable credit. His minimum release date of February 22, 2012 is correct."
Attached to the State's motion was an affidavit from Kathy Holt, director of records for DOC, copies of the transcript of minutes for each conviction, and a copy of Perkins's inmate summary as of August 2, 2006, which shows inmate disciplinary and citation history. The trial court granted the State's motion to dismiss on February 13, 2007.
Perkins filed a motion for reconsideration on March 13, 2007, claiming that he was denied a right to appear, that the court conducted a hearing on the petition without transcribing the proceedings, and that he never received a copy of the order of dismissal providing him with the basis of the court's decision. He further claimed that he had served six years and four months before he was released on parole but that he was not credited with the time after his parole was revoked and he was reincarcerated. The trial court denied his motion for reconsideration on March 13, 2007.
On appeal, Perkins raises the following issues: 1) whether Perkins was denied due process by the failure of the court to record the arguments of counsel at the hearing on petition; 2) whether Perkins had a right to appear at the hearing on his petition; and 3) whether the trial court erred *619 in granting the State's motion to dismiss. The State argues that Perkins requested appointed counsel and that counsel, in his discretion, had the opportunity to offer whatever evidence Perkins felt relevant.
It does not appear from the record on appeal that Perkins requested that counsel be appointed. The circuit court's datestamp on Perkins's petition is July 11, 2006, and on July 27, 2006, an affidavit of substantial hardship was filed. At that time the trial court granted indigency status and appointed counsel to represent Perkins. It does not appear from the record that appointed counsel performed any action on Perkins's behalf. Furthermore, from the record on appeal, we cannot tell whether a hearing was held on Perkins's habeas corpus petition. After the circuit court granted the State's motion to dismiss the petition, appointed counsel filed with the circuit court a motion to withdraw, and that motion was granted.
Section 15-22-54(d)(3), Ala.Code 1975, provides, in relevant part:
"If revocation results in a sentence of confinement, credit shall be given for all time spent in custody prior to revocation. Full credit shall be awarded for full-time confinement in facilities such as county jail, state prison, and boot camp."
Perkins has alleged that he was not given jail credit for the six years and four months he served before his probation was revoked. DOC states that Perkins has been credited with all applicable credit. Nowhere in DOC's calculations, however, does it indicate that Perkins was credited with time served prior to his probation revocation.
In a similar case, this Court held:
"Quick has alleged that he was not given jail credit for the years he spent in jail between his arrest in 1995 and his sentencing in 2003. His petition has sufficient merit to necessitate a hearing to determine whether the circuit court correctly calculated and reported Quick's jail credit to ascertain how much time Quick did spend in jail pending trial on his burglary charges. See Frazier v. State, 800 So. 2d 606 (Ala.Crim.App.2000)(petition had sufficient merit to necessitate a hearing to determine whether jail credit was correctly calculated and reported); Johnson v. State, 681 So. 2d 1104 (Ala.Crim. App.1996) (inmate was entitled to an evidentiary hearing to determine whether pretrial jail time was properly calculated and reported.) Accordingly, this case is remanded to the trial court with directions that the court hold a hearing on this issue."
Quick v. State, 983 So. 2d 414, 415 (Ala. Crim.App.2007).
Because Perkins's petition has sufficient merit, this cause is remanded to the trial court to hold a hearing, at which Perkins is present, to determine the issue whether he is due credit for time served before his probation was revoked. The return to remand shall include the circuit court's specific written findings of fact and a transcript of the evidentiary hearing. Due return shall be made to this Court within 56 days of the date of this opinion.
REMANDED WITH INSTRUCTIONS.[*]
BASCHAB, P.J., and SHAW, WISE, and WELCH, JJ., concur.
NOTES
[*] Note from the reporter of decisions: On December 19, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558401/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-19-00484-CV
SEGUNDO NAVARRO DRILLING, LTD., Lewis Petro Properties, Inc., Tercero Navarro,
Inc., and Rodney R. Lewis,
Appellants
v.
SAN ROMAN RANCH MINERAL PARTNERS, LTD.,
Appellee
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2018CVK002483D4
Honorable Oscar J. Hale, Jr., Judge Presiding
BEFORE CHIEF JUSTICE MARION, JUSTICE CHAPA, AND JUSTICE WATKINS
In accordance with this court’s opinion of this date, the trial court’s order is AFFIRMED.
Costs of this appeal are taxed against appellants.
SIGNED August 19, 2020.
_____________________________
Beth Watkins, Justice | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1444400/ | 839 F.Supp. 1578 (1993)
UNITED STATES of America
v.
Frederic W. TOKARS, a/k/a Fred Tokars, James H. Mason, Anthony A. Brown, a/k/a Al Brown, Jessie H. Ferguson, a/k/a Todd Love Mitchell, a/k/a Todd Love, a/k/a Mitch Love, a/k/a Mitchell Lovett, Aaron Hudson, Alex W. Yancey, and William R. Carter, a/k/a Billy Carter.
Crim. A. No. 1:93-CR-357-ODE.
United States District Court, N.D. Georgia, Atlanta Division.
December 15, 1993.
*1579 Wilmer Parker, III, Lead Asst. U.S. Atty., Katherine B. Monahan, Asst. U.S. Atty., Atlanta, GA, for Government.
Bobby Lee Cook, Cook & Palmour, Summerville, GA, James J. Froelich, McKenney & Froelich, Jay Lester Strongwater, Strongwater & Cherniak, Atlanta, GA, for Frederic W. Tokars.
Kevin R. Brehm, Mildred Hankins Geckler, Federal Defender Program, Atlanta, GA, for James H. Mason.
Drew Findling, Office of Drew Findling, Atlanta, GA, James L. Feinberg, Office of James L. Feinberg, Detroit, MI, for Jessie H. Ferguson.
ORDER
ORINDA D. EVANS, District Judge.
This criminal case is before the court on objections of Defendants Tokars, Mason and Ferguson to the Report and Recommendation of Magistrate Judge Joel M. Feldman filed November 19, 1993. The Report and Recommendation ("R & R") recommends that the Defendants' motions for change of venue be denied. The R & R determined that pretrial publicity surrounding the instant case has saturated the greater Atlanta community. However, it also finds that pretrial publicity has not been so prejudicial and inflammatory that it should be presumed that a potential jury panel would be prejudiced against the Defendants. Therefore, it is recommended that the court defer ruling on Defendants' motions pending voir dire of prospective jurors.
A hearing was held on December 2, 1993, before the undersigned for purposes of oral argument and to receive certain supplementary evidence tendered by Defendant Mason, reflecting the results of a poll conducted by the Center for Urban Policy Research at Georgia State University. The testimony of Gary T. Henry, Director of the Center was heard and the written poll results were admitted into evidence. Defendants Tokars, Mason and Ferguson presented their arguments urging the court to grant a change of venue.
Briefly stated, this case involves allegations of racketeering, money laundering, drug conspiracy, and various acts of violence including an alleged interstate telephone call to procure the murder of Sara Tokars and the attempted murder of Michael H. Jones. Defendant Tokars is an Atlanta tax and criminal defense attorney who formerly was an Assistant District Attorney. The indictment alleges that he served as the attorney for a *1580 criminal enterprise which distributed cocaine and laundered the drug money through night clubs incorporated by Tokars and also through businesses established by Defendant Tokars for his business associate Eddie Lawrence. Defendant Tokars allegedly invested drug money in offshore bank accounts. Defendant Mason is a local businessman who allegedly served as a front for the drug dealers who purportedly were the true owners of the night clubs. Defendant Mason was Defendant Tokars' client. Defendant Ferguson allegedly supplied drugs to the enterprise and tortured and tried to kill Michael Jones who was believed to have taken some of the enterprise's money.
It is alleged that Lawrence hired a hit man to kill Defendant Tokars' wife Sara at Tokars' request. Mrs. Tokars was in fact shot and killed on November 29, 1992. The government's theory is that Sara Tokars' murder was arranged because she had become too knowledgeable about her husband's purported criminal activities and posed a threat to the continued vitality of the enterprise. Defendant Lawrence has pled guilty to aiding in the murder of Sara Tokars in state court and has pled guilty in this court to committing a violent crime in aid of racketeering activity, i.e., the kidnapping and murder of Sara Tokars. Defendant Lawrence states that he hired a hit man, Curtis Rower, at the behest of Defendant Tokars and in the expectation of a large payment from Tokars.
Based on statements of defense counsel, Tokars' contention is that he was not aware that the night clubs were involved in any illegal activity, that he did not knowingly launder any drug money and that he had no part in arranging for his wife's murder. It appears that Mason's defense will be that he did not knowingly participate in any illegal activity. The theory of Ferguson's defense has not been stated at this time.
For the reasons set out in this order, Defendants' motions for change of venue are GRANTED and the instant case will be transferred to the Northern District of Alabama for jury selection and trial.
Defendants' motions are made under Rule 21(a) of the Federal Rules of Criminal Procedure. That rule provides in pertinent part that transfer of venue shall be granted on the defendant's motion "if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district." Fed.R.Crim.P. 21(a).
The landmark fair trial/free press cases emanating from the United States Supreme Court all involved state trials. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The seminal Supreme Court decision involving this issue in a federal trial, Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (per curiam), states the existence of Supreme Court supervisory power to formulate standards pertinent to cases of prejudicial publicity occurring during a trial, but does not elucidate general standards. Marshall does recognize that a federal trial judge has "a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial," Id. at 312, 79 S.Ct. at 1173. The supervisory power of the Supreme Court in setting standards for change of venue in publicized federal cases was recognized but not applied in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The Court found that the supervisory power did not apply to state habeas cases such as Murphy. Id. at 798, 95 S.Ct. at 2035. Instead, the Court applied constitutional due process standards. See also id. at 804, 95 S.Ct. at 2038 (Burger, C.J., concurring) ("I would not hesitate to reverse petitioner's conviction in the exercise of our federal supervisory powers, were this a federal case ...,"); Rideau, 373 U.S. at 728, 83 S.Ct. at 1420 (Clark, J., dissenting) (disagreeing with the majority's determination that due process required reversal of defendant's conviction on account of prejudicial publicity, but stating that reversal would be warranted if *1581 the case had arisen in a federal trial court); United States v. Williams, 523 F.2d 1203, 1209 n. 11 (5th Cir.1975) (noting the existence of an unresolved issue as to whether the trial judge's discretion on a Rule 21 motion is more restrictive than that involved in due process review but finding it unnecessary to address issue); Issacs v. Kemp, 782 F.2d 896, 897 (11th Cir.1986), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986) (Hill & Fay, JJ., dissenting) (dissenting from denial of rehearing en banc and stating, "Were we considering these cases on direct appeal from convictions in a federal court, I have little or no doubt that, in the exercise of our supervisory power, they should be reversed."); United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (MacKinnon, J., concurring in part and dissenting in part) (noting that federal supervisory standards should apply to review of pretrial publicity issue in addition to constitutional due process standard); United States v. Faul, 748 F.2d 1204 (8th Cir.1984), cert. denied, 472 U.S. 1027, 105 S.Ct. 3500, 87 L.Ed.2d 632 (1985) (Lay, C.J., dissenting) (noting that federal supervisory standards should apply to issue of pretrial publicity, not due process standard).
At the present time, Marshall is still binding precedent, although the contours of the holding are unclear. The court has been unable to locate any Eleventh Circuit decision which resolves or clarifies the differences or the applicability of the two foregoing strands of authority to a federal trial. However, there are a number of relatively recent Eleventh Circuit opinions where the constitutional standard of Murphy has been applied in reviewing and affirming convictions in a federal court. See, e.g., United States v. De La Vega, 913 F.2d 861, 865 (11th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2011, 114 L.Ed.2d 99 (1991); United States v. Lehder-Rivas, 955 F.2d 1510, 1523-25 (11th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). In Lehder-Rivas, the appellant's argument concerning the trial court's failure to properly exercise its supervisory powers was rejected in a footnote: "A trial court is required to exercise such power in extraordinary circumstances not presented by this case." Id. at 1525-26 n. 15. Based on the foregoing authority, the court finds that Defendants' motions should be reviewed under the constitutional standard of Murphy v. Florida and also under the supervisory standard of Marshall v. United States.
In its argument against the motions for change of venue, the government has focused on a recent Eleventh Circuit opinion, Devier v. Zant, 3 F.3d 1445 (11th Cir.1993), in which the Court of Appeals denied a petition to set aside a state conviction in a case involving the rape and murder of a 12 year old girl. The trial court had denied a motion for change of venue based on pretrial publicity. In Devier, the Court held that due process did not mandate change of venue on account of the admittedly extensive media coverage of the case, because petitioner had failed to show that the pretrial publicity was so prejudicial and inflammatory that prejudice of the potential jury pool should be presumed. Devier holds that a movant seeking change of venue based on claims of presumed prejudice must show both that the community was saturated with pretrial publicity and that the publicity was prejudicial and inflammatory. Id. at 1461. In the Devier case, the Court of Appeals found that the pretrial publicity was "essentially factual and was not directed at arousing or inciting the passion of the community." Id. at 1462.
The Magistrate Judge found, and the court agrees, that the Northern District of Georgia has been saturated with publicity about the instant case, with the greatest concentration of publicity having occurred between the murder of Defendant Tokars' wife Sara Tokars on November 29, 1992, and Defendant Tokars' arrest on August 25, 1993. During this time frame, the local newspaper articles and local television reports literally have numbered in the thousands. While the initial coverage dealt primarily with the circumstances of Sara Tokars' death, subsequent coverage beginning in approximately January, 1993, increasingly focused on the possibility and then the implicitly asserted probability that Tokars had been instrumental in arranging for his wife's murder. Some of this coverage suggested that Defendants Tokars *1582 and Mason had ties to mobsters in Detroit, Michigan. After Tokars was indicted in the Superior Court of Cobb County, Georgia for first degree murder and indicted in this court on racketeering, money laundering and drug conspiracy charges, an additional intense round of media reports followed. Both the state and federal cases have been followed closely by the media, which has covered virtually all formal and informal proceedings in these cases. The undersigned does not recall a case in the Northern District of Georgia in recent years which has received the level of local publicity (i.e., within the Atlanta media market[1]) as have the instant case and the state Tokars case. The purely local pretrial publicity in this case may in fact be greater than that involved in United States v. Moody, which involved the mail bomb deaths of Eleventh Circuit Court of Appeals Judge Robert S. Vance and civil rights attorney Robert E. Robinson. See United States v. Moody, 762 F.Supp. 1485 (N.D.Ga.1991) (granting unopposed motion for change of venue based on pretrial publicity).
The government argues and the Magistrate Judge found that while the publicity in the instant case has been pervasive, the great majority of the reporting has been essentially factual and thus not of the type necessary to support a change of venue. The court has reviewed all of the materials submitted by the parties consisting primarily of newspaper articles and video tapes of IV coverage concerning the case, both before and after the indictment. Resolution of the question whether the publicity was "prejudicial and inflammatory" in nature depends on what is meant by that terminology. Naturally, the very news that an individual is a suspect in a criminal case or that he has been indicted is negative, and therefore one might argue prejudicial. This clearly is not what is intended by Devier or similar cases, however. Neither do news accounts as to the status or progress of an investigation, what is contained in an indictment, or which merely state what occurred at various pretrial court proceedings constitute the type of prejudicial and inflammatory coverage envisioned by Devier.
What makes this case unusual is the large amount of investigative reporting which was undertaken by the local media particularly local television stations, during the approximately eight month time frame preceding Mr. Tokars' indictment. The great bulk of this reporting was quite negative to Mr. Tokars and the court does not know whether, or to what extent various allegations which surfaced in the investigative reports will even be reflected in the government's evidence at trial. For example, an individual was interviewed on at least one television station who claimed that Defendant Tokars had tried to hire him to kill Sara Tokars. This is a different person from the now-indicted self-confessed "hit man." A viewer of this coverage could well conclude that this individual's statements tend to corroborate the government's theory that Mr. Tokars hired someone to kill his wife. Yet the indictment does not reference any attempt by Defendant Tokars to hire the person who was interviewed, and this purported incident has never been mentioned in any pretrial proceedings. Similarly, television reporters have interviewed individuals who claim Sara Tokars told them that she feared for her life and that her husband was involved in illegal activity. The emotional impact of these television interviews is strong, arguably meeting the "prejudicial and inflammatory" standard of Devier.
Using a quantitative approach, the court agrees with the Magistrate Judge that the great bulk of the pretrial publicity in this case is factual, i.e., not inflammatory in nature. However, combining the extraordinary volume of coverage (virtually all of which is highly negative to the Defendants) with the emotional nature of some of the coverage, one may infer that a widespread bias exists which could interfere with a fair trial. Two telling pieces of evidence before the court tend to reinforce this inference. Radio station WKLS ("Atlanta's 96 Rock") has broadcast this song:
TOKARS IS A POMPUS YUPPIE CLOWN
*1583 HE CALLED HIS BUDDY LAWRENCE
HE CALLED HIS BUDDY CURTIS
AND TOGETHER, THEY BROUGHT HIS WOMAN DOWN
TOKARS, TOKARS IS MADE OF MONEY
HE PAID A LOT THEY SAY
HE SPENDS HIS DAYS A COUNTIN'
THE MINUTE HE'S A FREE MAN IN THIS STATE
HE WAS BOUND TO SCREW IT UP SOON
AND ON TURKEY DAY
WHEN THE KIDS ARE IN THE TOYOTA
AND THEIR MOM IS GONE
TELL ME WHAT YOU TOLD THE KIDS THAT DAY
CHORUS:
AND HE SHALL BE TOKARS
AND HE SHALL BE ARRESTED
AND HE SHALL BE TOKARS
IN TRADITION WITH THE REST OF THEM
AND HE SHALL BE TOKARS
AND HE SHALL BE ARRESTED
HE SHALL BE TOKARS
TOKARS SELLS HIS JUSTICE ACT DOWNTOWN
VACATIONS ALL THE TIME
JESUS, HOW CAN YOU SLEEP AT NIGHT
WITH BEING CAUGHT CONSTANTLY ON YOUR MIND
AND JESUS, YOU WANT TO GO TO FLORIDA
TO LEAVE THIS ALL FAR BEHIND
TAKE ATAVAN AND GO SAILING
WHILE HE IGNORES THE KIDS A SECOND TIME
HE WAS BOUND TO SCREW IT UP SOON
AND ON CHRISTMAS DAY
WHEN THE KIDS ARE AT THEIR GRANDMA'S HOUSE
AND YOUR DRUGS ARE GONE
TELL ME HOW YOU'LL SCARE THE KIDS TODAY
The November 6, 1993 edition of Creative Loafing (a free weekly Atlanta newspaper) announced the "Best of Atlanta 1993." Mr. Tokars was purportedly selected by the readership as "Best" in the following categories: Local Villain, Scandal, Kept Secret and Over-Hyped Media Event. The significance of these bits of cynical humor is that they assume public awareness and acceptance of Mr. Tokars' guilt.
The Defendants' claims of pervasiveness of publicity and prejudicial effect of publicity are aided by the survey results which are in evidence. A random poll of 998 individuals in the Northern District of Georgia which was conducted by the Georgia State University Center for Urban Policy Research indicates that 69% of the respondents have heard or read "a great deal" regarding the death of Sara Tokars; 17.1% have heard "a fair amount." 66.6% of the respondents have an opinion based on what they have read or heard as to the guilt or innocence of Mr. Tokars in relation to the murder charges; 97.9% of those who have an opinion believe Mr. Tokars is guilty. Regarding the federal racketeering, money laundering and drug charges against Mr. Tokars and the other Defendants, 39.7% of the respondents have heard or read "a great deal" and 32.5% have heard or read "a fair amount." Of those who are familiar with the case, 53.3% have formed an opinion as to Mr. Tokars' guilt or innocence; 99% of those who have formed an opinion believe he is guilty of the federal charges. As regards the federal charges against the other Defendants, 44.1% of those who have been exposed to pretrial publicity have formed an opinion as to the guilt or innocence of those Defendants; 98% of those who have formed an opinion believe the other Defendants are guilty. While the survey may be faulted for failing to include a question as to whether the respondents would be able to be fair and impartial notwithstanding their exposure to pretrial publicity, it nonetheless stands as evidence which weighs in favor of Defendants' motion for change of venue.
*1584 The strongest argument against a finding of presumed prejudice sufficient to warrant transfer of this case to another venue is the fact that the Northern District of Georgia contains Atlanta, Georgia a very large metropolitan, populous city. Even the Defendants' own poll reveals that at least 30% of the citizenry have no opinion whatsoever about this case. Therefore, it does not take a sophisticated mathematician to figure out that sufficient unbiased jurors exist in the Northern District of Georgia from which to select a jury panel. Of course, the difficult task would be ascertaining which prospective jurors in fact are unbiased. Where the negative publicity has been so intense, the court's task would be made more difficult by prospective jurors' subconscious recollection of news coverage.
Having analyzed the foregoing factors, the court finds that it is a close question whether a sufficient presumption of prejudice exists to constitutionally mandate a change of venue, but nonetheless determines that an adequate showing has been made based on a combination of the evidence of pretrial publicity and the poll results.
Turning to an alternative analysis of the motions for change of venue under the principles of the Marshall case, the court similarly finds that a change of venue should be granted. The decision on this basis is not a close one. Given the extraordinary degree of pretrial publicity, the difficulty of identifying truly unbiased jurors, the inconvenience of rescheduling the trial should voir dire prove unsuccessful in identifying unbiased jurors, and the availability of a relatively convenient, suitable alternative venue in Birmingham, Alabama, the court finds that change of venue prior to attempting jury selection is clearly warranted. In this regard, Birmingham is close enough to Atlanta (150 miles) so that it will not be unduly inconvenient for the large number of trial witnesses (most of whom are from the Atlanta area) and the change will not unduly burden the parties with additional expense. Courtroom facilities and adequate security are available at the federal courthouse in Birmingham. The Northern District of Alabama offers a jury pool which is very similar in demographic profile to that of the Northern District of Georgia. Also, while Birmingham has a smaller population than Atlanta's, it is nonetheless similar enough to Atlanta in its metropolitan, cosmopolitan aspects to make it a suitable substituted venue. The court has considered the fact that transferring the case to Birmingham will result in a de facto severance of the case against Defendant Hudson but deems that insufficient reason to choose other venues or to try the case in Atlanta. In summary, with only a relatively small amount of inconvenience attendant to transferring the case to Birmingham, the risk of prejudice to the Defendants can be avoided and the trial can proceed with greater efficiency.
In determining an appropriate alternative site for the trial, the court has considered the Defendants' requests for a venue outside the Eleventh Circuit or alternatively, for a trial in Miami, Florida. The evidence in this case does not warrant a transfer of this case out of the Eleventh Circuit. While there has been some nation-wide coverage in newspapers and magazines and also on nationally broadcast television programs, the coverage outside the Atlanta media market has been significantly less than Atlanta's and has been reasonably uniform. In other words, there is no reason to think that individuals in San Francisco, California or New York City have had less exposure to this case than have persons in Birmingham, Alabama, Jacksonville, Florida or Savannah, Georgia. Miami, Florida is a site too distant from Atlanta, with a dissimilar jury pool profile. The expense and inconvenience of moving this case to Miami is simply not warranted.
In summary, the Report and Recommendation is ADOPTED IN PART and REJECTED IN PART. The motions for change of venue of Defendants Tokars, Mason and Ferguson are GRANTED. The instant case (as to those Defendants) will be transferred to the Northern District of Alabama for jury selection and trial, which will occur at the Robert S. Vance Federal Courthouse in Birmingham, Alabama.
SO ORDERED.
NOTES
[1] The greater Atlanta media market includes all divisions of this district within which juries could be selected and extends into the Middle District of Georgia. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567604/ | 10 So.3d 848 (2009)
STATE of Louisiana
v.
Keldon B. USSIN, Jr.
No. 2008-KA-1577.
Court of Appeal of Louisiana, Fourth Circuit.
April 8, 2009.
Charles J. Ballay, District Attorney, Robert M. White, Assistant District Attorney, Belle Chasse, LA, for State of Louisiana.
Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Keldon B. Ussin, Jr.
Court composed of Judge James F. McKay, III, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN.
PAUL A. BONIN, Judge.
Keldon Ussin, Jr. appeals his conviction after a trial by judge[1] for a violation *849 of La. R.S. 14:95.1, being a convicted felon in possession of a firearm. He was sentenced to ten years at hard labor and fined $1,000. For the reasons which follow, we affirm his conviction. We amend his sentence, and as amended, affirm the sentence.
Facts
On March 19, 2008, Mr. Ussin was a passenger in the front seat of a four-door Chevrolet Cavalier, a car owned and being operated by his girlfriend, Areoon Nicole Houston, on Engineers Road in Plaquemines Parish. In the backseat was Mr. Ussin's stepfather, Elmer Constant. The time was about 10:15 P.M. and they had been riding around in the car for about forty minutes. A sheriff's deputy, Tony Seput, observed that the license plate light was burned out and stopped the car. A second deputy, Jennifer Tassin, arrived on the scene shortly afterwards.
After learning from the driver that she was unlicensed, the deputies requested the two passengers to exit the car. Deputy Seput learned that Mr. Ussin was a convicted felon and that there was an outstanding arrest warrant for Mr. Constant. All three persons were "patted down" for weapons. No weapons were found on their persons. Ms. Houston gave the deputies permission to search her vehicle.
Deputy Tassin began a search at the front seat passenger side. Crouching down, she immediately observed on the floorboard on the passenger side a "big 'Dirty Harry' gun."[2] Upon closer examination, the deputy learned that the gun was loaded with two hollow point 357 bullets.[3] She gave a secret signal to Deputy Seput to handcuff the three and conducted a further, thorough search of the vehicle. No further contraband was found either in the car or on the three persons.
On the scene, all three denied ownership or possession of the weapon. At trial, Ms. Houston and Mr. Constant each testified that the gun did not belong to her or him, respectively, and that neither had observed the gun on the person of Mr. Ussin or in the car until it was removed from the car by Deputy Tassin. Because of the gun's location on the floorboard, Deputy Tassin was certain that Mr. Ussin would, of necessity, have been aware of it; his feet would have been touching it and it was clearly accessible to him.
The deputies placed Mr. Ussin under arrest for being a convicted felon in possession of a firearm.[4]
Insufficiency of Evidence
Mr. Ussin's sole assignment of error is insufficiency of evidence under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in a circumstantial evidence case. State v. Shapiro, 431 So.2d 372 (La.1982); La. R.S. 15:438. The essential elements that the prosecution must prove beyond a reasonable doubt in this case are that the defendant possessed a firearm and that he had been convicted of a prior enumerated felony, and that the conviction had occurred within the applicable ten year period. La. R.S. 14:95.1(A) and (C)(1); State v. Husband, 437 So.2d 269, 271 (La.1983); State v. Jones, 544 So.2d 1294, 1295 (La.App. 4 Cir.1989). The defendant conceded and *850 stipulated that he had been convicted of possession of cocaine in 2007 in Jefferson Parish.[5] Therefore, the only issue involves the remaining element of whether the defendant possessed the firearm.
The Louisiana Supreme Court decision in State v. Johnson, 03-1228 (La.4/14/04), 870 So.2d 995 disposes of the defendant's contention that the evidence in this case was insufficient to sustain a conviction.[6] The gun was "where the defendant's feet had been." Id., p. 2, 870 So.2d at 997. The defendant's proximity to the gun on the floorboard puts him in actual possession of the firearm. Id., p. 6, 870 So.2d at 999.[7] In our case, Deputy Tassin was emphatic that there was "no way [Mr. Ussin] could have sat in that car and not seen it or felt it."[8] Because of the area of the floorboard, the size of the gun, and the fact that the gun was completely visible on the floorboard, she was certain that Mr. Ussin "had to have known the gun was in the car."[9]
It is true that like the defendant in Johnson Mr. Ussin was never observed making any furtive movements and that unlike that defendant he was cooperative with the police. However, it is clear that the weapon was retrieved from the front passenger floorboard of a small car, that Mr. Ussin had access to the loaded Smith & Wesson, that the driver had not observed the gun on the floorboard but would have had it been there before Mr. Ussin's entry into her car, and that both the driver, who is Mr. Ussin's girlfriend, and the other passenger, who is his stepfather, denied ownership or possession of the weapon. Mr. Ussin necessarily had an awareness of the weapon. See State v. Major, 08-0861, p. 6 (La.App. 4 Cir. 12/10/08), 1 So.3d 715, 718; State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, 812.
All of these facts taken together are sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Sylvia, 01-1406, p. 2-3 (La.4/9/03), 845 So.2d 358, 361.
The defendant has urged us to consider several intermediate appellate decisions in support of his contention that the evidence is insufficient to sustain a conviction in this matter.[10] However, none of the cited cases involved circumstances in which the defendant was in actual possession of a firearm. We, therefore, find them unpersuasive and conclude that the evidence was sufficient to convict Mr. Ussin of a violation of La. R.S. 14:95.1.
Error Patent
Our independent review of the record discloses only one error patent. The trial judge sentenced Mr. Ussin to the minimum sentence of ten years at hard labor. However, La. R.S. 14:95.1(B) *851 requires that any sentence under its provisions be "without benefit of probation, parole or suspension of sentence." The sentence is, therefore, an illegally lenient sentence, which can be noticed by this court sua sponte; however, because the provisions of La. R.S. 15:301.1(A) are self-activating, we are not required to remand for re-sentencing. State v. Williams, 00-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799.
Decree
The defendant's conviction for violating La. R.S. 14:95.1 is affirmed. The defendant's sentence is amended to serve ten years at hard labor without benefit of probation, parole or suspension of sentence and to pay a fine of $1,000 and, as amended, affirmed.
CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.
NOTES
[1] The defendant waived trial by jury and, after questioning, the court accepted the waiver.
[2] The gun was a Smith & Wesson.
[3] These bullets, according to Deputy Tassin, are capable of piercing the vests the deputies wear.
[4] Mr. Constant was also arrested; Ms. Houston was released at the scene.
[5] There was testimony that the defendant was still on "home incarceration" at the time of the arrest in this case.
[6] It is unnecessary in this opinion to reiterate the numerous legal principles and authorities cited in Johnson.
[7] See also State v. Washington, 605 So.2d 720, 722-23 (La.App. 2 Cir.1992) ("the defendant, while seated in the car would likely have had his feet touching the pistol and surely had to have been aware of the gun's presence.")
[8] Record, p. 69.
[9] Id.
[10] State v. LeBlanc, 01-1503 (La.App. 3 Cir. 6/5/02), 819 So.2d 424; State v. Fisher, 94-2255 (La.App. 1 Cir. 12/15/95), 669 So.2d 460; State v. Heacox, 543 So.2d 101 (La.App. 3 Cir. 1989), and State v. Evans, 29,675, 29,676 (La.App. 2 Cir. 9/24/97), 700 So.2d 1039. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567615/ | 579 S.W.2d 822 (1979)
Betty Lou POAGUE, Appellant,
v.
Robert Earl POAGUE, Respondent.
No. 29893.
Missouri Court of Appeals, Western District.
April 2, 1979.
*823 Jack Cochran, Blue Springs, for appellant; Cochran, Tyree, Oswald, Miller, Barton & McDonald, Blue Springs, of counsel.
Charles C. Curry, Kansas City, for respondent.
Before HIGGINS, Special Judge, Presiding, and WELBORN, Special Judge, and PRITCHARD, J.
PRITCHARD, Judge.
In this dissolution proceeding the trial court awarded a new trial on the sole issue of the marital misconduct of either party, ordering that the decree of dissolution entered on October 6, 1977, remain in full force and effect, except for those findings and orders pertaining to the division of marital assets and liabilities.
The dispositive issue (Point II) is whether under the particular facts of this case the trial court erred in limiting the new trial to the issue of marital misconduct when appellant had requested a new trial on all issues pertaining to maintenance and a division of marital property. The trial court awarded appellant maintenance in gross of $4,950.00, payable in 18 monthly installments of $275.00 each, which she also says (Point I) was error because there was no evidence of impending change in the parties' financial condition at the time of the termination date (the last installment).
The facts are these: The parties were married September 16, 1949. At the time of the dissolution, September 1, 1977, the four children born of the marriage were emancipated, therefore, no provision was made for child support or custody.
Appellant had worked sporadically during the marriage, and at the time of trial, she was earning $135.00 gross per week from her employment. She had never earned more than that amount. Respondent was a truck driver and was earning $500 to $525 gross per week, except when he occasionally laid off a trip because of a back disability, at which times his income would be reduced to about $350 per week.
Appellant, in her initial testimony, touched briefly on respondent's misconduct in beating her on more than one occasion. Marital misconduct is a factor to be considered by the court in making a division of marital property under § 452.330, subsec. 1(4). Laws Mo.1973; In re Marriage of Galloway, 547 S.W.2d 193, 196[4-7] (Mo.App. 1977). Marital misconduct of a party seeking maintenance is also a factor to be considered under § 452.335, as is the financial resources of that party, including the award of marital property. Thus, the division of marital property is a factor also to be considered in awarding maintenance to a needy spouse. Shroder v. Shroder, 552 S.W.2d 342, 343 [1-Footnote 1] (Mo.App.1977).
Rule 78.01 (adopted April 10, 1974, effective Jan. 1, 1975) provides: "The court may grant a new trial of any issue upon good cause shown. A new trial may be granted to all or any of the parties and on all or part of the issues after trial by jury, court or master. On a motion for a new trial in an action tried without a jury, the *824 court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment." Under this rule, the trial court clearly had the authority to grant a new trial on less than all the issues. That authority, however, is tempered as to whether the issue to be tried, and other issues in the case, are interrelated and dependent one upon the other as is the situation here. As noted in the cases cited, supra, marital misconduct bears upon the division of marital property, the amount thereof, in turn, bearing upon the amount of maintenance to be awarded. See also Forsythe v. Forsythe, 558 S.W.2d 675, 679[11] (Mo.App.1977). The court therefore erred in limiting the new trial to a determination of marital misconduct as that issue bears upon the division of marital property only.
The issue of maintenance must be retried, and in that connection, appellant is correct in her assertion that there was no evidence submitted which would justify limiting her maintenance to installments for only 18 months, termed by the trial court to be "rehabilitative maintenance." The trial court was authorized by § 452.335, subsec. 1.(2), to consider "The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment." However, "Awards of limited duration are entirely proper where the trial court has before it evidence of some impending change in the financial conditions of the parties or at the least some reasonable expectation that such a change will occur." In re Marriage of Powers, 527 S.W.2d 949, 956[12] (Mo.App.1975). See also LoPiccolo v. LoPiccolo, 547 S.W.2d 501, 505[3-5] (Mo. App.1977). Upon new trial, the court may receive evidence upon the issue of appellant's ability (considering her age, shown to be 47 years), and time necessary to acquire education or training to find employment. If there is no such evidence of appellant's future improvement in her financial prospects, no decree of maintenance of limited duration should be entered. It should then be of unlimited duration, the amount of which might be subject to modification if appellant's financial condition should in fact improve. It is noted that this record shows that the amounts awarded will be substantially short of appellant's needs, while respondent's obligations are well under his net income. The court should consider also the valuation of respondent's separate, non-marital property in determining his ability to provide appellant with maintenance sufficient for her needs.
The judgment is reversed and the cause remanded with directions that the new trial shall cover the issues of marital misconduct as it bears upon a division of marital property, and as that division may bear upon the amount of maintenance; for a consideration of appellant's reasonable opportunity to improve her financial condition as that issue might bear upon her right to permanent maintenance; and for a consideration of respondent's entire resources as they might bear upon his ability to pay maintenance.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567622/ | AIR SUPPLY, INC., ET AL.
v.
MICHAEL M. WAHLDER, ET AL.
No. 09-107.
Court of Appeals of Louisiana, Third Circuit.
June 10, 2009.
Not Designated for Publication
WILLIAM M. FORD, SUSAN FORD FISER, Counsel for Defendant/Appellee: Michael M. Wahlder.
EDWARD E. RUNDELL, HEATHER M. MATHEWS, GOLD, WEEMS, BRUSER, SUES & RUNDELL, Counsel for Defendants/Appellees: Nolan Johnson TRC Engineers, Inc.
JOSEPH B. STAMEY, ERIKA F. CEDARS, STAMEY & MILLER, LLC, Counsel for Defendant/Appellee: Sheila Girlinghouse.
RANDALL B. KEISER, D. HEATH TRAHAN, KEISER LAW FIRM, P.L.C., Counsel for Defendants/Appellees: Wayne Nugent, Sharon Fisher, Lisa Butchey, Sherry Hardwick.
W. ALAN PESNELL, THE PESNELL LAW FIRM, Counsel for Plaintiffs/Appellants: Air Supply, Inc. Raphael Luneau.
Court composed of DECUIR, SULLIVAN, and EZELL, Judges.
DECUIR, Judge.
Plaintiffs, Air Supply, Inc. and Raphael Luneau, seek review of the trial court's judgment of July 17, 2008, wherein the court granted exceptions of no cause of action in favor of defendants, Wayne Nugent, Mayor of the Village of Creola (Mayor), Sharon Fisher, Lisa Butchey, Sherry Hardwick, Aldermen of the Village of Creola (Aldermen), Sheila Girlinghouse, Clerk for the Village of Creola (Clerk), Michael Wahlder, TRC Engineers, Inc. (TRC), and Nolan Johnson. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Michael Wahlder owns a convenience store and restaurant in the Village of Creola. Air Supply, Inc., owned by Ralph Luneau, operates a mobile home park adjacent to Wahlder's property. Some time ago, Wahlder donated land for the Village's sewer treatment ponds. Wahlder and Air Supply sought to have additional acreage annexed by the Village for expansion of their respective operations. After some research into sewer capacity, conducted in part by TRC and its employee, Nolan Johnson, the Village annexed the Wahlder property but never took action on Air Supply's petition for annexation. Air Supply, Inc. and Luneau filed suit against the defendants named above.
Through their original and three amending and supplementing petitions, plaintiffs challenge: the Mayor and Aldermen's actions in failing to annex the plaintiffs' land and in denying access to the Village sewer system. In their pleadings, plaintiffs assert that defendants' actions violated plaintiffs' rights under the Louisiana Constitution, the United States Constitution, and 42 U.S.C. § 1983. Plaintiffs allege that Wahlder, TRC, and Johnson conspired with the Mayor, Clerk, and Aldermen to deny them due process and to interfere with a contract for sale of the plaintiffs' property and to breach Wahlder's contract of sale to Air Supply.
In response, the Mayor, Clerk, and Aldermen filed exceptions of no cause of action. In their exceptions, defendants claim that plaintiffs fail to state a cause of action under 42 U.S.C. § 1983, as defendants are entitled to absolute and qualified immunity. As an additional basis for their exceptions, defendants contend they are protected by the discretionary acts defense set forth in La.R.S. 9:2798.1(B) and that, accordingly, plaintiffs are unable to state a cause of action in tort. Wahlder, TRC, and Nolan Johnson also filed exceptions of no cause/no right of action and vagueness, arguing that the plaintiffs failed to state a cause of action for negligence, detrimental reliance, due process violations, or civil conspiracy under § 1983. The district court found that the Mayor, Clerk, and Aldermen enjoyed both absolute and qualified immunity and granted the exceptions of no cause of action filed on behalf of those defendants. In addition, the court granted the exceptions of no cause of action in favor of the remaining defendants noting that no final determination regarding the annexation has been made and that the plaintiffs failed to establish a "unity of purpose" among the defendants. Mack v. Newton, 737 F.2d. 1343 (5th Cir. Tex 1984).
NO CAUSE OF ACTION
In Fink v. Bryant, 01-0987 (La. 11/28/01), 801 So.2d 346, 348-349 (citations omitted), the court said:
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the wellpleaded facts in the petition must be accepted as true. In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.
In this case, the Mayor, Alderman, and Clerk all base their exceptions of no cause of action on the affirmative defenses of absolute and qualified immunity. Our brethren on the first circuit discussed these issues in Lambert v. Riverboat Gaming Enforcement Division, 96-1856, pp. 5-6 (La.App. 1 Cir. 12/29/97), 706 So.2d 172, 175-76, writ denied, 98-297 (La. 3/20/98), 715 So.2d 1221, saying:
Title 42, § 1983 of the United States Code provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....
Recovery under § 1983 requires a plaintiff to allege and prove two essential elements: (1) that the defendant's conduct occurred under color of state law, and (2) that defendant's conduct deprived plaintiff of a right, privilege or immunity secured by the Constitution or a law of the United States. Moresi v. State, Department of Wildlife and Fisheries, 567 So.2d 1081, 1084 (La.1990).
However, when an official performs a function integral to the judicial process or a traditional legislative function, the official is absolutely immune from § 1983 liability for acts performed in those capacities. Moresi, 567 So.2d at 1084.
Additionally, a qualified immunity generally applies to most acts of government officials. Moresi, 567 So.2d at 1084. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the United States Supreme Court articulated a new objective standard with regard to the qualified immunity defense, stating that government officials performing discretionary functions generally are shielded from liability for civil damages, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.
Turning to the pleadings filed herein, we must first determine whether the plaintiffs have alleged that the defendants were acting under color of state law. The Mayor, Aldermen, and Clerk are all governmental officials, thus satisfying the first prong of the test. We next must determine whether the petition alleges that the defendants denied plaintiffs a right, privilege, or immunity guaranteed by Constitution or law. Plaintiffs allege that defendants denied Air Supply due process of law by failing to annex its property and/or failing to authorize connection to the sewer system. Plaintiffs cite no authority for the proposition that Air Supply is entitled to annexation of its property or connection to the sewer system.
We conclude that plaintiffs herein have failed to allege sufficient facts to assert that defendants violated a clearly established right of which a reasonable person would have known and, therefore, have failed to state a cause of action under Title 42 § 1983.
Moreover, even if we accept plaintiffs' argument that mere allegation that the defendants' actions constitute a denial of due process is sufficient to maintain a cause of action, we find that the pleadings set forth insufficient facts to survive the exception of no cause of action founded on the affirmative defenses of absolute and/or qualified immunity as claimed by the Mayor, Aldermen, and Clerk.
Plaintiffs also argue that the trial court erred in finding that the defendants are also shielded from tort liability by the discretionary acts defense provided by La.R.S. 9:2798.1. Louisiana Revised Statutes 9:2798.1 provides in pertinent part:
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
Plaintiffs allege that the defendants improperly granted Wahlder's annexation request due to his influence on them and the community and failed to act on Air Supply's request for the same reason. Plaintiffs allege further that in so doing the defendants intentionally interfered with an alleged contract of sale. However, plaintiffs only make conclusory allegations of actions constituting a conspiracy to deny Air Supply due process of law. We find these allegations insufficient to defeat the discretionary acts defense of the Mayor, Aldermen, and Clerk.
Turning to the remaining defendants, Wahlder, TRC, and Nolan Johnson, we find that the allegations in the plaintiffs' petition, while pointing to detrimental reliance, breach of contract, and interference with contract, and breach of contract are merely allegations that the defendants worked together to prevent Air Supply from getting approval for annexation of its land and connection to the sewer system. The non-governmental defendants responded to these scattershot allegations with exceptions of no cause/no right of action and vagueness. In reviewing the petition, we conclude that the plaintiffs' petition alleges various causes of action that are actually intended to be factual allegations supporting the alleged civil conspiracy by fraud cause of action. We reach this conclusion because the various allegations lack requisite supporting claims of privity of contract, duty, contractual relationship, or tender. With regard to the conspiracy by fraud allegations, like the trial court, we find the plaintiffs failed to demonstrate the requisite "unity of purpose" among the governmental and non-governmental defendants required to support a cause of action for civil conspiracy under § 1983. Accordingly, we find the plaintiffs' allegations insufficient to state a cause of action against the defendants.
FAILURE TO ALLOW LEAVE TO AMEND
Plaintiffs contend that the trial court erred in not granting them leave to amend their petition to state a cause of action. We disagree.
In Eschete v. Hildebrand, 06-18, p. 6 (La.App. 5 Cir. 4/25/06), 930 So.2d 196, 200, writ denied, 06-1291 (La. 9/15/06), 936 So.2d 1269 (footnote omitted), after finding that the defendants had qualified immunity the court said:
Under La.Code Civ.P. art. 934, when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, the action, claim, demand, issue, or theory shall be dismissed. The right to amend a petition is qualified by the restriction that the objection be curable. Where the amendment would be a vain and useless act, such an amendment is not required by LSA-C.C.P. art. 934.
Like our brethren in the fifth circuit, we see no need to allow an amendment in this case where we have found the defendants immune to civil liability.
With regard to the remaining defendants, we find that the plaintiffs have already been granted numerous opportunities to amend their petition to state a cause of action and have failed to do so. Either they are not acting in good faith or they are incapable of curing the defect. In either case, the trial court did not err in denying leave to amend plaintiffs' petitions.
The foregoing being dispositive of plaintiffs' claims, we pretermit discussion of the remaining assignments of error.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellants, Air Supply, Inc. and Raphael Luneau.
AFFIRMED.
EZELL, J., dissents.
This case can be distinguished from Craig v. Police Jury Grant Parish, 265 Fed. Appx. 185, 2008 WL 341631 (C.A. 5 (La.)). The members of the governing body in this case have not taken any action under the color of their position. The fact that no action in their official capacity gives reason to question the claim of absolute or qualified immunity.
The other issue raised by the Plaintiff is that all other Defendants in concert with the mayor and aldermen acted to interfere with the Plaintiffs contract and that Plaintiff relied on their actions and promises to its detriment. The majority, in finding that immunity exist, has not looked at the lack of the Plaintiffs ability to discover the information and actions of the Defendants that would go to the tort action presented in the petition.
I can find no action taken in this case that is being complained of by the Plaintiff that warrants any immunity for the alderman and mayor. There certainly is no immunity granted to those Defendants who are not public officials.
The annexation of the property is of no impact in this matter. The question is, have the public officials failed to give Plaintiff due process with regard to the granting of sewer capacity and in violating their already made agreement to provide sewer capacity.
The exception of no cause of action is triable only on the face of the petition and well-pleaded facts must be accepted as true. We are a fact pleading state and the court, if it finds any cause, must allow the matter to go to trial. It is clear from the petition that to refuse to annex certain property is not the sole cause of action in the petition.
It is clear that under La.R.S. 2798.1, Plaintiff has setforth a cause in its petition under this statute. I would remand the matter to the trial court to allow the Plaintiff to amend and join parties to cure any vagueness issue and would reverse the exception of no cause of action.
For the above reasons, I must respectfully disagree with the majority. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567705/ | 10 So.3d 294 (2009)
Daren TOMPKINS and Marvel Bates
v.
Mary R. SAVOIE and her Liability Insurance Carrier, The Hartford Insurance Company and State Farm Mutual Automobile Insurance Company Sued Herein as the Uninsured/Underinsured Motorist Carrier of the Plaintiff.
No. 2008-CA-808.
Court of Appeal of Louisiana, Fifth Circuit.
March 24, 2009.
*296 Daniel E. Becnel, III, Attorney at Law, Laplace, LA, for Plaintiff/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
FREDERICKA HOMBERG WICKER, Judge.
In this personal injury action involving a motor vehicle accident, the plaintiffs/appellants Daren Tompkins and Marvel Bates appeal the judgment in their favor against defendant's/appellees Mary Savoie and Hartford Insurance Company awarding the plaintiffs damages and medical expenses.[1] Following a bench trial, the trial judge awarded Mr. Tompkins and Ms. Bates each $1,500 plus medically related damages in the amount of $1,110.00.[2] The appellants argue that the award is abusively low and the trial judge erred in assessing the duration of their injuries. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 2, 2004, Mr. Tompkins and his mother, Ms. Bates, were in a vehicle that was stopped at a red light when Ms. Savoie's vehicle rear-ended their vehicle.
Mr. Tompkins
The medical evidence introduced at trial revealed that Mr. Tompkins had two lumbar surgeries, a shoulder scope, and three motor vehicle accidents predating the present accident.
Dr. Robert Dale, an expert in chiropractic treatment, testified that he treated Mr. Tompkins for injuries that he sustained in four motor vehicle accidents occurring in 1999 through 2004; namely, September 28, 1999, June 8, 2001, May 7, 2004, and, September 2, 2004. Dr. Dale testified that Mr. Tompkins presented similar complaints for the four accidents. He stated that his bill for the present accident was $4,285.
The present accident in September 2004 occurred a few months after the May 2004 accident. Dr. Dale stated that he was still treating Mr. Tompkins for injuries he suffered from the recent May accident when he began treating him for the September accident. Dr. Dale testified that the diagnoses for the May and September accidents were very similar and shared the following common diagnoses:[3] cervical lumbosacral sprain/strain injuries with attendant *297 muscle spasm; myalgia; cervicalgia; cervical radicular syndrome;[4] post-traumatic shoulder and hip bursa swelling, sciatic nerve root compression; and, post traumatic sacroiliac joint disorder or pain.[5]
Dr. Dale explained that contemporaneously with his examination of Mr. Tompkins, Dr. Dale completed a pain diagram describing Mr. Tompkins' painful areas. Mr. Tompkins' pain diagrams following the May and September accidents were identical.
Dr. Dale maintained, however, that the injuries from the two most recent accidents differed because of his treatment focus. In this respect, he focused his treatment on Mr. Tompkins' chief complaints. Additionally, he testified that he tried to treat only the new areas of injury from the September accident rather than those areas that were previously treated following the May accident. His treatment for the May injuries focused on the neck and the left shoulder. Also, he treated the low back to a lesser degree.
In contrast, for the September accident, Dr. Dale explained that he treated the right shoulder, the right hip rotator, the right sacroiliac joint, and the lumbosacral paraspinous muscles. He also treated the right side of the lower back area, the right side joint, and the right hip musculature. Dr. Dale stated that he found objective findings in multiple areas such as spasm on palpation in the lumbosacral paraspinous muscles and the hip rotator musculature on both sides. Dr. Dale believed that the September accident exacerbated Mr. Tompkins left-sided neck problems and his left-sided lower back problems.
Mr. Tompkins, who was age 47 at the time of trial, testified similarly. He stated that Dr. Dale treated areas that differed from those associated with the May accident. In addition, Mr. Tompkins stated that he had increased level of pain in the same areas that were previously injured.
Dr. Dale wrote medical reports for the May and September accidents, which were introduced into evidence. The reports revealed the following:
Dr. Dale's November 2004 report regarding the May accident stated that he released Mr. Tompkins from his care on October 13, 2004. Dr. Dale treated Mr. Tompkins beginning May 11, 2004 for a total of 44 treatments. Mr. Tompkins continued to be symptomatic through the final days of his treatment. He had spasm and pain in the cervical shoulder area as well as in the lumbosacral area. Dr. Dale noted that "his condition because of the previous surgeries is very fragile and this accident caused substantial problems that he will continue to suffer with for some time." Furthermore, Dr. Dale noted that the September accident "exacerbated a certain amount of problems that he was experiencing."
Dr. Dale's March 2005 report regarding the present accident states that he treated Mr. Tompkins for the September accident from September 3, 2004 until February 17, 2005 for a total of 47 times.
Mr. Tompkins testified that from September 7 to October 13, 2004, he had about 10 office visits twice a day. Once a day, Dr. Dale would treat him for his injuries as a result of the May accident and the other time he would treat Mr. Tompkins as *298 a result of injuries from the present accident. Mr. Tompkins stated that he discontinued the treatments because the treatments only provided temporary relief.
Mr. Tompkins testified that he was experiencing pain before the September accident due to his prior back surgery. His level of pain on a scale of zero to 10 was 10 before the September accident and it remained at this level at the time of trial on May 1, 2007. He attributed his current pain in the left side of his neck, left arm, and both legs to the September accident. He admitted, however, that he did not feel that he had improved from the earlier accident.
Dr. John J. Watermeier testified by deposition. He stated that he first saw Mr. Tompkins on August 31, 2004. Mr. Tompkins reported the motor vehicle accident of May 7, 2004. Dr. Watermeier stated that Mr. Tompkins complained of pain in the neck, the back, the left upper extremity, and the left lower extremity, including the left knee.
Dr. Watermeier testified that he asked Mr. Tompkins to return in three months. The next office visit was November 30, 2004. Mr. Tompkins voiced the same complaints that he made on the prior visit. Dr. Watermeier stated that there was no change on the physical examination. The diagnosis from August to November was lumbar degeneration and cervicalgia of the neck.
Although Mr. Tompkins testified he thought that he told Dr. Watermeier about the present accident, Dr. Watermeier testified differently. Dr. Watermeier testified that Mr. Tompkins never mentioned the September accident. According to Dr. Watermeier, he never offered any treatment to Mr. Tompkins relative to the September accident.
Ms. Bates
Ms. Bates, who was age 70 at the time of trial, testified that she had prior neck and back surgeries.
Dr. Watermeier testified that he treated Ms. Bates from 2002 for knee pain through the time of the September accident. Prior to her visit to him in 2002, Ms. Bates had right knee surgery. Dr. Watermeier stated that on January 6, 2005, Ms. Bates had another surgery on her right knee. At trial, Ms. Bates testified that she did not injure her right knee or left knee in the September accident.
Ms. Bates testified that she was injured in the same May accident in which Mr. Tompkins was injured. She stated that Dr. Dale treated her for that accident. According to Ms. Bates, as a result of the May accident, she had pain in both arms, her neck, and down to her back, hip, and spine. She also injured her right knee when she hit her knee under the dashboard. She stated that when hit by the other vehicle, the seat belt came forward, she twisted her neck, and hit the seat belt.
Ms. Bates stated that following the September accident, she injured her neck. Her entire body was sore and she had pain in her lower back. When asked to distinguish the pain from the May accident, she testified that she had more pain on the left side. When counsel pointed out that she had pain on the left side before the present accident, she explained that it felt a little worse after the present accident. She stated that the woman hit them "hard."
Counsel referred Dr. Watermeier to his note of May 19, 2004 where Ms. Bates referred to a May 7, 2004 automobile accident. Dr. Watermeier reviewed his notes and testified that Ms. Bates stated that on May 7th, she was involved in a motor vehicle accident as a passenger and sustained a direct contusion, blow, or blunt trauma to *299 the right knee. She said pain started immediately following the injury. She had increasing pain, discomfort, and loss of function since that accident. She said that she had chiropractic care for her neck. His diagnosis that day for the knee was primarily localized osteoarthritis and contusion, and for the neck it was cervicalgia, which is neck pain. Her X-rays showed arthritis in her knee, and evidence of surgery on her neck.
Dr. Watermeier testified that he next saw Ms. Bates on June 24, 2004. On that date he noted that she complained of right knee pain and neck pain. She said that there was no change except for worsening of the complaints for the right knee. He recommended surgical treatment of the right knee.
Dr. Watermeier testified that his standard practice was to follow up with his patients by asking if there had been any new problems or new accidents. Ms. Bates' next office visit was October 12, 2004. On that date, Ms. Bates reported that she was still having pain in her right knee. He agreed that on that date he noted in her chart that there was no change in her overall health and there were no new accidents or injuries. He stated that these notes were completed contemporaneously with the examination. Ms. Bates was not complaining of cervicalgia on that day. In June, she had complained of neck pain. But, after a few months, her pain complaints focused on the knee. According to his notes, Ms. Bates did not inform him of the September 2, 2004 accident. If she had informed him, he would have referenced that in his notes.
Dr. Watermeier testified that he treated Ms. Bates on the visit of October 12, 2004 for a continuation of the knee condition she had before the September accident. On November 1, 2004, he injected her knee to relieve the pain. Again, on this date, there was no mention of the September 2, 2004 accident.
Dr. Watermeier testified that on October 3, 2005, he noted that Ms. Bates complained of bilateral shoulder pain and he gave her an injection in the shoulders. When asked if she ever told him what caused the shoulder pain, he replied that she did not. He explained that someone who had knee problems and subsequent knee surgery will often be on crutches at the time. When on crutches, the crutches occasionally placed additional stress on the shoulders.
According to Dr. Watermeier, based on the history that Ms. Bates provided, the ultimate surgery on her right knee would be equated more to the May 7, 2004 accident and not to the September accident. He last saw Ms. Bates on August 3, 2005.
Dr. Dale testified that he treated Ms. Bates for the present accident as well as for the May accident. For the May accident Ms. Bates had complaints of pain in both shoulders with severe pain in the right shoulder. She also had pain in the left sacroiliac joint, the left hip area and the right knee. According to Dr. Dale, Ms. Bates complained of headaches and stiffness.
Dr. Dale testified that with regard to the September 2004 accident, Ms. Bates continued to complain of problems in the same areas affected by the May accident. She also complained of mid thoracic pain, increasing sciatic pain on the left, and pain at the right clavicle. Dr. Dale testified that the September accident exacerbated and worsened the areas that Ms. Bates had problems with in the May accident.
Dr. Dale stated that the treatment for the May accident primarily involved the right side of the shoulder and the surrounding musculature without low back *300 treatment. His treatment for the September accident primarily involved the left shoulder and the left lower back and hip area.
Dr. Dale's November 5, 2004 report on the May 7, 2004 accident was introduced into evidence. It revealed the following:
The report stated that Dr. Dale released Ms. Bates from his care on October 19, 2004. She began treatment on May 11, 2004 and was treated 47 times. She improved considerably throughout the course of treatment but continued to remain symptomatic through the final days of treatment. Her prognosis was somewhat guarded.
Dr. Dale's March 15, 2005 report regarding the September 2, 2004 accident was introduced into evidence. It revealed the following:
The report stated that Dr. Dale began treating Ms. Bates on September 3, 2004 for a total of 47 times. He last treated her on February 17, 2005 at which time she discontinued treatment because of surgery on the right knee. She continued to suffer through the final days of treatment.
Dr. Dale testified that with respect to the September accident, when Ms. Bates was released from his care she continued to experience lumbosacral pain, left shoulder pain, and knee pain up to and through the final days of treatment. Dr. Dale and Ms. Bates decided that treatment would not help her further.
According to Dr. Dale's November 5, 2004 report regarding the May 7, 2004 accident, Dr. Dale diagnosed Ms. Bates as having cervical and lumbosacral sprain/strain, knee sprain/strain injuries, post traumatic shoulder, knee, and hip bursa swelling, muscle spasms, and myalgia.
According to Dr. Dale's report dated March 15, 2005, for the September accident he diagnosed Ms. Bates as having cervical and lumbosacral sprain/strain, post traumatic shoulder and hip bursa swelling, exacerbation of right knee swelling, cervicalgia, cervical radiculopathy and post traumatic sacroiliac joint disorder.
When asked to review his diagnoses for the two accidents, Dr. Dale agreed that he made similar diagnoses relative to the two accidents. Dr. Dale stated, however, that he made a distinction between treatment and complaints. Dr. Dale testified that although Ms. Bates complained about the sacroiliac and the lumbar spine following the May accident, he did not treat those areas. He acknowledged that Ms. Bates had severe pain on palpation and muscle spasm in the lumbosacral area from the May accident. But, he stated that this was not the area of her chief complaint. And, it was not the area that he provided treatment. He explained that his goal was to focus his treatment on the greatest area of pain at the time. Thus, for the May accident, he treated the right shoulder, and the neck area. And following the September accident, the complaints were related more to the lower back, the left hip, the sacral joints, and the left shoulder.
Dr. Dale believed it was more probable than not that the injuries for which Ms. Bates presented to his office on September 3, 2004 were caused by the September 2, 2004 accident. His bill for Ms. Bates was $4,190 for treatment of the September accident.
The trial judge found that the September accident was a minor "fenderbender." She also concluded that the May 7, 2004 accident was much more significant than the September 2, 2004 accident. She stated that the present accident only minimally aggravated the pre-existing injuries of both Mr. Tompkins and Ms. Bates. She awarded damages accordingly.
*301 LAW AND DISCUSSION
Louisiana courts of appeal apply the manifest error standard of review in civil cases. Detraz v. Lee, 05-1263, p. 7 (La.1/17/07), 950 So.2d 557, 561, citing Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90. The manifest error standard of review precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hall, supra, 03-1734 at 9, 874 So.2d at 98. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Id. (Citation omitted). The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous. Id.
Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p. 11 (La.4/3/02), 816 So.2d 270, 278, citing Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). However, where documents or objective evidence so contradict the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co., 05-1139, p. 7 (La.11/29/06), 946 So.2d 133, 138, citing Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989). But where such factors are not present, and a fact finder's finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.
Causation is a factual finding which should not be reversed on appeal absent manifest error. Detraz, supra, 05-1263 at 7 (La.1/17/07), 950 So.2d at 561-62 (Citations omitted).
In multiple accident situations, whether before or after the accident at issue, a tortfeasor is liable only for the direct and proximate results of his wrongful act, including aggravation of any preexisting injuries. Although he takes his victim as he finds him, a tortfeasor cannot be held liable for injuries not attributable to the wrongful act. Hidalgo v. Old Hickory Ins. Co., 630 So.2d 252, 254 (La.App. 5 Cir.1993), writs denied, 94-0381, 94-0399 (La.3/25/94) 635 So.2d 240 (Citation omitted). Accord: Coleman v. Lewis, 99-0094, pp. 2-3 (La.App. 1 Cir. 3/31/00), 757 So.2d 907, 908, writ denied, 00-1850 (La.9/22/00), 768 So.2d 1291. In such situations, the plaintiff is required to prove a causal connection between the injuries claimed and the accident by a preponderance of the evidence. Hidalgo, supra, 630 So.2d at 254.
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (Citations omitted).
The manifest error standard of appellate review applies even when the evidence before the trier of fact consists solely of written reports, records and depositions. Virgil v. American Guarantee and Liability Insurance Company, 507 So.2d 825, 826 (La.1987) (per curiam), reaffirmed in Shephard on Behalf of Shepard v. Scheeler, 96-1690, pp. 14-15 (La.10/21/97), 701 So.2d 1308, 1316-17.
*302 The trial judge was presented with factually opposing testimony with regard to the type of impact that occurred in the September accident. On one hand, the plaintiffs described the accident as a "very hard" hit. Mr. Tompkins testified that Ms. Savoie told him she mistakenly hit the gas pedal. In her deposition testimony, Ms. Savoie, however, denied making the statement. Also, Ms. Savoie described the accident as causing her to only feel "a little jerk."
The parties stipulated that Ms. Savoie had no damage to the front of her car. At trial, Ms. Bates' vehicle and a damage estimate, along with black and white photographs of Ms. Bates' car were admitted. Mr. Tompkins identified the photograph of his mother's car. He also identified the rear of that vehicle. He described the damage that was depicted in the photograph as a dent in the bumper. He stated that the dent was not present before the present accident.
The black and white photographic evidence, which depicts the damage, reveals what appears to be a scrape on the bumper. The photographic evidence is consistent with the claim summary of September 8, 2004, which was introduced into evidence. The claim summary referred to the damage as a "[m]inor dent to grained textured bumper, not repairable." Another document contained in the estimate exhibit provided an estimate to replace the rear bumper cover. The parties stipulated that the defendants paid the plaintiffs' $251.75 property damage to Ms. Bates as the owner of the vehicle.
According to Mr. Tompkins' testimony, the property damages sustained in the September 2004 accident were significantly less than that sustained in the May 2004 accident.
Mr. Tompkins testified that he and his mother were involved in the May accident. He was driving on the interstate at approximately 35 to 40 miles per hour. A girl, who was merging onto the interstate into his lane, drove "pretty fast", came out of nowhere, and hit him. He was driving a truck at the time and the damage to the truck was $1,800 or $2,000.
The thrust of appellants' argument is that the trial judge was manifestly erroneous because she rejected the plaintiffs' testimony, which was allegedly corroborated by their treating physician and the medical records. In particular, appellants contend that the trial judge should have accepted Dr. Dale's testimony.
Appellants rely on the case of Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242. In that case, the court held: "Uncontroverted evidence should be taken as true to establish a fact for which it is offered absent any circumstances in the record casting suspicion as to the reliability of this evidence and sound reasons for its rejection." 07-17 at 7, 960 So.2d at 248, citing Fuller v. Wal-Mart Stores, Inc. 519 So.2d 366, 369-70 (La.App. 2 Cir.1988). That case is distinguishable. There the court found manifest error in the damage award. In that case, there were uncontroverted medical reports and the trial judge gave no reason for rejecting those reports. In Earls, this court reviewed the record and the record, unlike the present case, did not reveal any circumstances that would cast doubt as to the reliability of those reports. 07-17 at 7, 960 So.2d at 248.
Here the trial judge stated that she was unconvinced by Dr. Dale's dual treatment of the plaintiffs. She was evidently referring to Dr. Dale's testimony in which he attempted to account for differences in injuries for the May and September accidents by focusing on different treatment areas. The trial judge was unpersuaded by Dr. Dale's attempt to segregate the two accidents in this fashion when each accident *303 had virtually identical diagnoses in several respects.
Considering that great deference is accorded to the trial court's factual findings, even when the record consists of documentary evidence, we find no manifest error in the trial judge's finding that there was a contrived separation of treatment modalities. See: Shephard on Behalf of Shepard v. Scheeler, 96-1690, p. 14 (La.10/21/97), 701 So.2d 1308, 1316, reaffirming Virgil, supra ("[G]reat deference is accorded to the trial court's factual findings, even when the record consists solely of documentary evidence.").
Importantly, neither Mr. Tompkins nor Ms. Bates mentioned to Dr. Watermeier the September accident or any injuries that might have arisen from that accident.
We find that the trial judge was not manifestly erroneous in awarding damages. The stipulated amount paid for the damage for the replacement of a bumper cover supports her finding that the impact from the September accident was minor. Thus, it was reasonable that the trial judge could have found it doubtful, based on the testimony and evidence, that such a minor accident could have caused the severe and debilitating injuries of which Mr. Tompkins and Ms. Bates complain.
To sum up, we find no manifest error in the trial judge's concluding that the defendants were liable to the plaintiffs only for those damages associated with the temporary aggravation of their pre-existing conditions occasioned by the September 2004 motor vehicle accident.
DECREE
For the reasons stated herein, the judgment of July 26, 2007 is affirmed.
AFFIRMED.
NOTES
[1] State Farm Mutual Automobile Insurance Company, the plaintiffs' uninsured/underinsured motorist carrier, was previously dismissed from the suit.
[2] At trial, the parties stipulated that $50,000 was the amount of insurance coverage that was in effect.
[3] Mr. Tompkins also sustained abrasions and contusions from the May accident.
[4] For the September accident, the diagnosis was cervical radiculopothy. For the May accident, the diagnosis was cervical radicular syndrome.
[5] Dr. Dale admitted that for the May accident, he could have diagnosed Mr. Tompkins with sacroiliac joint pain. For the September accident, he diagnosed Mr. Tompkins with post traumatic sacroiliac joint disorder. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567718/ | LOUIS ROBINSON, JR.
v.
TYLAN MEAUX, ET AL.
No. 09-374, Consolidated with 09-375, No. 09-376
Court of Appeals of Louisiana, Third Circuit.
June 3, 2009
Not Designated for Publication
THOMAS REGINALD HIGHTOWER, Jr., PATRICK WADE KEE, Attorneys at Law Counsel for defendant/Appellee Lil D's Bar-B-Que, L.L.C.
STEVEN CLAUDE JUDICE, KEOGH, COX & WILSON, Counsel for Defendants/Appellees Federated Mutual Insurance Co. Champion's Express Mart, Inc.
DON J. HERNANDEZ, Attorney at Law Counsel for Plaintiff/Appellant: Louis Robinson, Jr.
LISA COLEMAN LEE, KEETSIE T. GUNNELS Attorney for DOHH Counsel for Intervenor/appellee State of Louisiana, Department of Health and Hospitals-Medicaid
L. KATHERINE A. THEUNISSEN, MAHTOOK & LAFLEUR Counsel for Defendant/appellee: Lafayette Consolidated Government
JOHN WILLIAM PENNY, Jr., Attorney at Law Counsel for Defendants/Appellees: Allstate Insurance Company Rodney and Vickie Guilbeaux Tylan Meaux
JEFFERY F. SPEER, JULIAN LOUIS GIBBENS, III, JASON E. FONTENOT, DOUCET & SPEER Counsel for Defendants/Appellees: Tylan Meaux, Rodney and Vickie Guilbeaux.
CHRIS PAUL VILLEMARETTE, Attorney at Law Counsel for Plaintiff/Appellee: Clement Mayard
EDWARD BERNARD JONES, Edward B. Jones & Associates Counsel for Plaintiff/Appellant: Louis Robinson, Jr.
JAMES ALAN HARRELL, HEATHER DUPLANTIS, KAREN BLAKEMORE, PHELPS DUNBAR, Counsel for Defendant/Appellant: Lafayette Specialty Hospital, LLC d/b/a Meadowbrook Specialty Hospital of Lafayette
SCOTT M. HAWKINS, HAWKINS & VILLEMARETTE, Counsel for Plaintiff/Appellee: Clement Mayard.
Court composed of DECUIR, PICKETT, and GREMILLION, Judges.
PICKETT, Judge.
This court issued, sua sponte, a rule ordering the Appellants, Louis Robinson, Jr., Lafayette Consolidated Government (LCG), and Lafayette Specialty Hospital, L.L.C. d/b/a Meadowbrook Specialty Hospital of Lafayette (Meadowbrook), to show cause, by brief only, why the appeals in these consolidated cases should not be dismissed as premature. For the reasons given herein, we hereby recall the rule and maintain the appeals.
These cases arise out of an accident which left Plaintiff, Louis Robinson, Jr., a quadriplegic. Allegedly, on August 1, 2006, Plaintiff was riding his bicycle on a sidewalk adjacent to the Evangeline Thruway in Lafayette, Louisiana, when he was struck by a truck driven by Tylan Meaux. As a result of this accident, Plaintiff has filed a personal injury suit, and his suit has been consolidated with the separate suits filed by Mr. Meaux and his guest passenger, Clement Mayard. Appellant, LCG, was named as one of the defendants, and Appellant, Meadowbrook, filed a petition of intervention seeking recovery of expenses associated with Plaintiff's treatment at its facility.
One of the Defendants, Lil D's BBQ, L.L.C., filed a motion for summary judgment seeking to have all claims against it dismissed. The trial court granted the motion for summary judgment, and a judgment to that effect was signed on September 15, 2008. Plaintiff, LCG, and Meadowbrook each filed motions for new trial. The trial court wrote the word "Denied" across the proposed orders to show cause. Appellants subsequently filed separate motions for appeal which were granted by the trial court.
In Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, this court held that the notation "Denied" written across a rule to show cause order which had been attached to a motion for new trial was insufficient to satisfy the statutory requirement that a final judgment be "identified as such by appropriate language." See La.Code Civ.P. art. 1918. Further, this court found that the appeal in Egle was premature under La.Code Civ.P. art. 2087(D) because it was granted before the trial court had sufficiently disposed of the motion for new trial.
In the instant case, when the appeals were lodged in this court on March 27, 2009, the appeals were premature because the trial court had addressed the parties' motions for new trial by writing "Denied" on the show cause orders. However, when responding to this court's order that Appellants show cause why their appeals should not be dismissed as premature, Appellants submitted to this court a copy of a revised judgment which had been signed by the trial court. This new judgment reflects that on April 13, 2009, the trial court issued a judgment clearly denying the three motions for new trial. A supplemental record containing this new judgment has been filed in this court. We find that the judgment of April 13, 2009, is in the appropriate form to constitute a proper judgment disposing of the motions for new trial.
Louisiana Code of Civil Procedure Article 2123(C) provides:
An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.
"The second sentence of this provision . . . makes it clear that the trial court's denial of a motion for new trial during the pendency of an appeal cures the defect of prematurity." Sullivan v. Franicevich, 04-0321 (La.App. 4 Cir. 3/9/05), 899 So.2d 602, 604 (citation omitted), writs denied, 05-0880 and 05-0920 (La. 5/20/05), 902 So.2d 1051 and 1055. The Louisiana Supreme Court has held that once a previously existing defect has been cured, there is no useful purpose in dismissing an otherwise valid appeal. Overmier v. Traylor, 475 So.2d 1094 (La.1985).
Accordingly, in the instant cases, we find that the appeal orders were granted prematurely because the trial court had not yet issued valid judgments regarding the motions for new trial, and therefore, this court did not have jurisdiction over the appeals. However, we find that the trial court's subsequent issuance of a valid judgment denying the motions for new trial cured the jurisdictional defect of prematurity. As such, we find that although the appeals were premature at the time when they were lodged in this court, the appeals have since been perfected and should be maintained.
RULE RECALLED. APPEAL MAINTAINED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1651226/ | 804 F.Supp. 614 (1992)
CIBA-GEIGY CORPORATION, Plaintiff,
v.
ALZA CORPORATION, et al., Defendants.
Civ. A. No. 91-5286.
United States District Court, D. New Jersey.
October 23, 1992.
*615 *616 Robert Fettweis, Sills Cummis Zuckerman Radin Tischman Epstein & Gross, Newark, N.J., Hugh A. Chapin, Kenyon & Kenyon, New York City, for plaintiff.
George J. Kenny, Connell, Foley & Geiser, Roseland, N.J., Thomas V. Heyman, Jones, Day, Reavis & Pogue, New York City, for defendants.
Francis X. Dee, Carpenter, Bennett & Morrissey, Newark, N.J., Thomas D. Nevins, Broad, Schulz, Larson & Wineberg, San Francisco, Cal., for counterclaim defendant.
OPINION
WOLIN, District Judge.
Before the Court is the motion by counterclaim-defendant, the Regents of the University of California (the "Regents"), to dismiss the counterclaim filed against it by defendants on the basis of sovereign immunity pursuant to the Eleventh Amendment. Additionally, before the Court is the motion of defendants, Alza Corporation ("Alza") and Marrion Merrell Dow Inc. ("Marrion Merrell Dow") (collectively "defendants") to dismiss the complaint on the ground that plaintiff, Ciba-Geigy corporation ("Ciba-Geigy"), has no standing to institute the present lawsuit. For the reasons expressed below, this Court will grant the Regent's motion to dismiss defendants' counterclaim under the Eleventh Amendment and will deny defendants' motion to dismiss the complaint for lack of standing.
BACKGROUND
Ciba-Geigy commenced the present action against defendants for infringing the 5,016,652 patent (the "'652 patent"). Ciba-Geigy produces HABITROL under the '652 patent, a nicotine patch that helps people to cease smoking. It claims that defendants' NICODERM product, a nicotine patch employed to aid people to stop smoking, infringes the '652 patent.
Drs. Murray Jarvick, Karce Rose, and Jed Rose are the inventors of the '652 patent. The Veterans Administration (the "V.A."), and the Regents employed Drs. Murray Jarvick and Jed Rose while they were developing the '652 patent. Dr. Karce Rose was in private practice. Declaration of Jed E. Rose, Ph.D. ("Rose Dec.") ¶ 3.
The Regents contacted the V.A. about the V.A.'s interest in Drs. Rose's and Jarvick's inventions. Some of these inventions were disclosed in the '652 patent. In its correspondence with the V.A., the Regents suggested that the V.A. assign its rights in the inventions to its employees, the inventors. The Regents stated its intent to license the inventions. Moreover, the Regents acknowledged its obligation to administer the inventions in accordance with P.L. 98-620 (the 1984 amendment to 35 U.S.C. § 202).
The Regents noted that neither the "Transdermal Administration of Nicotine as a Cessation Smoking Aid" nor the "Method and Apparatus for Aiding in the Reduction of Incidence of Tobacco Smoking" were invented with any grant from the National Institutes of Health. The preceding inventions formed the '652 patent.
Drs. Jarvick and Karce Rose disclosed to the V.A. that they had produced the inventions (that were later described in the '652 patent) during the time that the V.A. employed *617 them. Specifically, Drs. Jarvick and Karce Rose informed the V.A. that they developed the '652 patent using the V.A.'s facilities, during working hours, and using the V.A.'s equipment. Rose Dec. ¶ 4-5, Exhs. A, B. The V.A. decided that it had made an insignificant contribution to the '652 patent's development, and disclaimed any right it had to the invention. Accordingly, pursuant to 37 C.F.R. § 100.6(b)(2) (now codified at 38 C.F.R. § 1.650 et seq.), the V.A. ceded any interest that it had in the invention to its inventors subject to a "nonexclusive irrevocable, royalty free license in the invention with power to grant licenses for all governmental purposes." Rose Dec. ¶ 9, Exh. C. Subsequently, the inventors assigned all of their rights to the '652 patent to the Regents. Rose Dec. ¶ 10, Exh. D.
Although the Regents did not receive any grant from the NIH to help it develop the inventions underlying the '652 patent, the University of California received a $4,942 Biomedical Research Support Grant from the Department of Health and Human Services to develop what became the '652 patent, Rose Dec. Exh. B, and a grant from the National Institute of Drug Abuse. Supplemental Declaration of Theresa M. Gillis ("Gillis Supp. Dec.") Exhs. 2-4. No party has produced any evidence to indicate whether the Department of Health and Human Services or the National Institute of Drug Abuse claims any interest in the '652 patent. The patent application discloses that these two agencies contributed to the patent.
The Regents gave Ciba-Geigy an option for an exclusive license to the '652 patent on June 2, 1988.[1] The original option expired on May 31, 1990. Declaration of Theresa M. Gillis ("Gillis Dec.") Exh. E. The Regents extended the option until May 31, 1992. Gillis Dec. Exh. F.
On October 29, 1991, the Regents and Ciba-Geigy entered into an exclusive licensing agreement. Pursuant to that agreement, Ciba-Geigy agreed to comply with 35 U.S.C. §§ 200-204[2]. Exclusive License Agreement § 23. These sections require an entity to "substantial manufacture" its products in the United States. 35 U.S.C. § 204. Additionally, Ciba-Geigy agreed to "reasonably fill the market demand for [the] licensed product." Exclusive License Agreement Article 6.1.
If Ciba-Geigy fails to meet these conditions, the Exclusive License agreement allows the Regents to send a written notice of default to Ciba-Geigy. The Exclusive License Agreement provides further that if Ciba-Geigy fails to cure the default "or to demonstrate that it made reasonable efforts to cure the default" then the Regents can terminate Ciba-Geigy's exclusive license. Exclusive License Agreement Articles 6.4, 9.1. Furthermore, the Regents retained certain rights concerning the patent under the Exclusive License Agreement. For example, the Regents retained a right to use the patent for "educational and research purpose." Exclusive License Agreement Article 2.3. Additionally, the Exclusive License Agreement allows Ciba-Geigy to assign the contract only with the Regents' consent. The License Agreement provides that the Regents must consent to a reasonable assignment. Exclusive License Agreement Article 18.1. The Exclusive License Agreement permits Ciba-Geigy to sub-license the patent, however, without obtaining the Regents' consent.
Finally, the License Agreement forces Ciba-Geigy to confer with the Regents before Ciba-Geigy would institute any action for patent infringement. The License Agreement prohibits Ciba-Geigy from commencing a lawsuit within five days of notifying the Regents of the alleged infringement *618 without first obtaining the Regents' consent. Under the License Agreement, the Regents agreed to act as a nominal plaintiff, if it was required for Ciba-Geigy to bring an infringement action. License Agreement 15.2. Moreover, pursuant to Article 15.4 of the License Agreement, the Regents retained the right to bring its own action for patent infringement or to join a lawsuit brought by Ciba-Geigy.
After Ciba-Geigy began this action but prior to the defendants instituting their counterclaim against the Regents, Ciba-Geigy and the Regents amended Article 15 of the License Agreement. Specifically, they deleted Article 15.4 of the License Agreement and withdrew the Regents' consent to be named as a nominal plaintiff. Under the amended License Agreement, the Regents agreed not to file any patent infringement lawsuit and agreed that any judgment obtained by Ciba-Geigy in a patent infringement suit filed by Ciba-Geigy would bind the Regents. Moreover, the Regents assigned any potential causes of action "as alleged in the Alza and Elan Suits, including without limitation the right to recover for past and future damages and to obtain injunctions against infringement." Amendment to Exclusive License Agreement.
Ciba-Geigy has manufactured HABITROL pursuant to an agreement it entered with Lohmann Therapie Systeme GmbH 7 Co. KG ("Lohmann"). Under that agreement, Lohmann manufactures and assembles the active ingredients contained in HABITROL in West Germany. Ciba-Geigy and its subcontractors manufacture and assemble the inactive ingredients contained in HABITROL in the United States. Additionally, Ciba-Geigy employs the people who advertise and sell Habitrol in the United States. Declaration of Thomas M. Clausi ("Clausi Dec.") ¶¶ 3-10.
Ciba-Geigy and Lohmann have entered into an agreement under which Lohmann should manufacture Habitrol in the United States by the second quarter of 1993. Lohmann has received FDA approval to manufacture Habitrol in the United States. Id.
DISCUSSION
A. Sovereign Immunity
Defendants have brought a counterclaim against the Regents. In their counterclaim, defendants ask this Court to declare the '652 patent invalid and uninfringed. In response to their counterclaim, the Regents has filed a motion to dismiss, based on sovereign immunity under the Eleventh Amendment. The Regents claims that it is a constitutionally protected arm of the state of California. Furthermore, the Regents claim that neither it nor Congress has waived its sovereign immunity.
In particular, the Regents maintains that in enacting the patent laws, Congress did not intend to abrogate the sovereign immunity of the various states. Additionally, the Regents contends that California has not enacted any statute or provision in its Constitution that would subject the Regents to suit.
Furthermore, the Regents asserts that it has not consented to the instant lawsuit. In doing so, the Regents notes that in the License Agreement it had agreed to be named as a nominal party in a patent infringement action, if it was necessary for Ciba-Geigy to maintain a lawsuit against a potential infringer. Ciba-Geigy further declares that it and the Regents amended the License Agreement and deleted this provision. In the amended agreement, the Regents declared that Ciba-Geigy would maintain lawsuits for patent infringement of the '652 patent and the Regents agreed to be bound by any judgment. Accordingly, the Regents concludes that it did not waive its sovereign immunity.
For the reasons that follow, this Court finds that the Regents is an arm of California protected by the Eleventh Amendment and that the Regents has not waived its sovereign immunity.
1. The Regents Is An Arm of California Entitled to Eleventh Amendment Protection
Even if a party does not bring an action against a state itself, Eleventh Amendment immunity applies where the *619 state is "the real party interest." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101 n. 11, 104 S.Ct. 900, 908 n. 11, 79 L.Ed.2d 67 (1984) for example, the Supreme Court maintained that the state is the real party in interest when "`the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration', or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.'" In addition, The Supreme Court has stated that a court should consider "the nature of the entity created by state law," Kovats v. Rutgers, the State University, 822 F.2d 1303, 1307 (3d Cir.1987) (quoting Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977)) in order to determine whether an entity is an "arm of the state" instead of a "non-immune municipal corporation." Id.
Guided by the Supreme Court, the Third Circuit formulated a nine factor test to determine whether an entity is entitled to Eleventh Amendment protection. Urbano v. Board of Managers of the New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970). In announcing the test the Urbano court stated
[L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance. Among the other factors, none of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation; and whether the sovereign has immunized itself from responsibility for the agency's operations.
The Third Circuit in Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655, 659 (3d Cir.1989), grouped these factors into three categories. The factors grouped according to their category are
(1) Whether the money that would pay the judgment would come from the state (this includes three of the Urbano factors-whether payment will come from the state's treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency's debts);
(2) The status of the agency under state law (this includes four factors-how state law treats the agency generally, whether the entity is separately incorporated, whether the agency can sue or be sued in its own right, and whether it is immune from state taxation); and
(3) What degree of autonomy the agency has.[3]
Courts in other Circuits have utilized similar tests to determine whether a Court should grant Eleventh Amendment immunity to an agency. See Vaughn v. Regents of University of California, 504 F.Supp. 1349 (E.D.Cal.1981); Selman v. Harvard Medical School, 494 F.Supp. 603 (S.D.N.Y.), aff'd, 636 F.2d 1204 (2d Cir. 1980). Under these tests, the Regents qualifies as an alter ego of California, and is entitled to Eleventh Amendment protection.
In Kovats, the Third Circuit determined that Rutgers was not an arm of the state immune from suit. In doing so the Kovats court examined the factors announced in Urbano. First, the Court considered *620 whether the funds that would pay a judgment would come from the state. The court noted that Rutgers "has four distinct sources of income: auxiliary income, derived from Rutgers' auxiliary services and restricted to use in funding those services which include dining services, room rentals and intercollegiate athletic programs; restricted income from moneys received from private or government groups and limited to use in the specific program generating the funds; general university income from tuition, fees, and investments; and state appropriations." Kovats 822 F.2d at 1308.
The court further stated that general university income and state appropriations are commingled in a separate account. Additionally, the court found that Rutgers held title to land and buildings worth more than $40 million. Moreover, Rutgers had segregated accounts of interest derived from its assets. Between 1983 and 1985, it used $44 million and $48 million of this account as a pledge to bondholders. Importantly, the court established that Rutgers retained complete control over both the commingled and segregated accounts, "subject only to audit by the state." At least equally significantly, the court recognized that New Jersey had insulated itself twice from any of Rutgers' liabilities. Accordingly, this factor weighed against immunity.
The court next considered Rutgers' status under New Jersey law. Here the court found factors weighing both in favor of immunity and against immunity. Initially, the court found that the "statute under which Rutgers is incorporated and case law state that Rutgers is an instrumentality of the State." Moreover Rutgers provides education, an essential state function. Id. at 1310.
Contrastingly, the Court found that the state did not consider Rutgers part of the state for New Jersey Contractual Liability Act because Rutgers can sue or be sued. Moreover, Rutgers was not subjected to civil service laws, competitive bidding laws, or administrative procedure requirements. Id.
Additionally, the court considered Rutgers amenability to suit and the immunities that it possessed. The court noted that Rutgers can sue and be sued in state court. On the other hand, Rutgers possessed immunity from suit in tort except under New Jersey's tort claims act. Moreover, Rutgers property was exempt from local zoning ordinances "and its property had been held to be property of the State of New Jersey exempt from property taxes." Id. at 1311 (quoting Rutgers, the State University v. Piscataway Township, 1 N.J. Tax 164, 171 (1980)).
Finally, the court considered Rutgers autonomy from the state. The court found that this factor did not favor granting Rutgers sovereignty. Initially, the court examined the composition of Rutgers government. The court noted that Rutgers was governed by two bodies: the Board of Governors, six of whom are appointed by the Governor, the remaining five are appointed by Rutgers' trustees. N.J.S.A. 18A:65-14. A Board of Trustees also governed Rutgers. The five members appointed by the governor to the Board of Governors sit on the Board of Trustees. The Governor appointed six members with the advice and consent of the senate. N.J.S.A. 18A:65-15(I)(b). The remaining twelve to twenty trustees consisted of twelve to twenty Rutgers alumni and alumnae chosen by the trustees N.J.S.A. 18A:65-15(I)(c), as well as the twenty-five charter trustees chosen when the statute converting Rutgers into a public institution passed. N.J.S.A. 18A:65-15(I)(d).
Next the court examined the duties of these bodies. Due to Rutgers previous status as a private university, the trustees "retain sole control subject to a public trust over the assets held by Rutgers prior to the [statute's passage]." N.J.S.A. 18A:65-26. Importantly, the trustees "retain[ed] power to withdraw their assets if they feel the assets are being put to an improper use." N.J.S.A. 18A:65-27(II)(c).
The court noted that in general the governors and trustees are given a great degree of self-government. The only restriction placed on these bodies was that they *621 must comply with the budget appropriations to the university, N.J.S.A. 18:65-25(d), and must comply with state laws and regulations. Within the broad confines of budget appropriations, however, Rutgers only needed to inform the state of its spending decisions. N.J.S.A. 18A:65-25(d).
Moreover, the court found that Rutgers money is not treated as public money. Instead, unlike other agencies, Rutgers can withdraw and invest its funds as it wishes. N.J.S.A. 18A:65-25(c). Finally, the court explained that unlike most agencies, Rutgers does not have to abide by civil service, competitive bidding or administrative procedure mandates.
Considering all these factors, the court concluded that Rutgers was not an alter-ego of the state for Eleventh Amendment purposes. The court acknowledged that Rutgers presently is "in part, a state created entity which serves a state purpose, with a large degree of state financing." More critically, however, the court also recognized that Rutgers was a private institution originally, and currently is "an independent entity able to direct its own actions and is responsible ... for judgments resulting from these actions." Id. at 1312.
Similarly, in Fitchik the court concluded that the New Jersey Transit Rail Operations, and its parent corporation New Jersey Transit were not instrumentalities of the state and, therefore, did not qualify for Eleventh Amendment immunity. As in Kovats the court found that the money for the judgment would not come from state's funds. In reaching this conclusion, the court noted that New Jersey Transit receives most of its money not from the state but from fares that it collects. Additionally, New Jersey Transit set aside money for paying judgments, and purchased insurance against such judgments. Importantly, as in Kovats the state has insulated itself from any debt or judgment that would be rendered against New Jersey Transit.
The court then considered New Jersey Transit's status under state law. The court found that this factor favored immunity slightly. The statute that created New Jersey Transit declared that it serves a "public purpose." Additionally, the New Jersey Supreme Court termed New Jersey Transit a "public" entity. Furthermore, New Jersey Transit purchased its "operating property, plant, and equipment from the State at cost. Moreover, like Rutgers it "is subject to the New Jersey Tort Claims Act, is immune from state property tax, has the power of eminent domain, and unlike Rutgers is subject to the states administrative procedure act."
On the other hand, the State of New Jersey separately incorporated New Jersey Transit; has given New Jersey Transit the right to sue and be sued; has allowed New Jersey Transit to enter into contracts; and to purchase land, stock equipment and personal property.
Finally, the court examined New Jersey Transit's autonomy. As with the its status under state law, the court found that this factor favored immunity slightly. In support of autonomy, New Jersey Transit is governed by its own board of directors. The board has significant power. For example, it could enter into contracts on New Jersey Transit's behalf, commence lawsuits, purchase insurance, collect fares and organize New Jersey Transit's management.
In support of dependence on the state, the court noted that, three of the directors are "members of the executive branch." Significantly, the Governor can veto any of the Board's actions.
The court considered all the above factors. In balance, because the court found that the most important Urbano factor, whether the state would pay for any judgment entered against New Jersey Transit weighed strongly against immunity, the court held that New Jersey Transit and, therefore, its subsidiary, New Jersey Transit Rail Operations Inc., was not an alter ego of the state.
The Third Circuit has also held, however, that the State System of Higher Education, an entity with a similar function to both Rutgers and the Regents, was covered by the Eleventh Amendment. Skehan v. State System of Higher Educ., 815 F.2d *622 244 (3d Cir.1987). At the outset, the court considered the entity's status under state law. In its enabling statute the legislature termed the State System of Higher Education (the "SSHE"), a "public corporation" and "government instrumentality." Moreover, the court noted that the SSHE performs a typical state function-providing education. Furthermore, the state described its funding of SSHE as "ordinary expenses of government" and the SSHE enjoyed "preferred status for appropriations." Although the court noted that the SSHE was independently incorporated, the court did not place much weight on this in light of its governmental purpose.
The court next considered SSHE's autonomy. Pennsylvania exercised significant control over SSHE. The members of its governing body consist of two state officials and fourteen people appointed by the governor upon the advice and consent of the senate. Moreover, SSHE is not only subjected to an annual state audit but must provide an annual report to both the governor and the Appropriation and Education committees of the senate and house of Pennsylvania. Additionally, SSHE must abide by regulations that apply to Pennsylvania and its agencies for purchasing supplies, and for entering into contracts. Finally, the court found that SSHE enjoys immunity from lawsuits within Pennsylvania as well as immunity from property taxes.
In the instant case, an analysis of the factors set forth in and reorganized in Fitchik reveals that the Regents lies between Rutgers and SSHE. Because this court find that the Regents is more akin to SSHE, however, this Court holds that the Regents is an arm of the state entitled to Eleventh Amendment protection.
Initially, this court will determine the Regents' status under state law. Unlike Rutgers, California created the Regents and the trust that it administers, the University of California, through its Constitution. See Cal.Const. Art. IX § 9. Accordingly, courts have described the Regents as a "fourth branch of government." For example, the court in Regents of University of California v. City of Santa Monica, 77 Cal.App.3d 130, 143 Cal.Rptr. 276 (2d Dist. 1978), stated that "[the Regents] is a branch of the state itself, a statewide administrative agency ... a constitutionally created arm of the state." Id., 143 Cal. Rptr. at 279 (citations omitted). Similarly California's attorney general has opined that "[the Regents] constitutes a branch of the state government equal and coordinate with the legislature, judiciary, and the executive branch." 30 Ops.Cal.Atty.Gen. 162, 166 (1957). Additionally, in determining that buildings owned by the University of California were public buildings, the court in In re Bacon, 240 Cal.App.2d 34, 49 Cal.Rptr. 322 (1st Dist.1966), adopted the view expressed by the California Supreme Court in Estate of Royer, 123 Cal. 614. 621, 56 P. 461 (1899), that the University of California is a "public corporation ... [whose] property is property of the state." Id. Moreover, California's statutes define the Regents not as a "local agency" but instead as a "state agency." Cal.Govt. Code § 3202(b). Its name is owned by the state. Cal.Educ.Code § 92000(a).
Due to its status as a constitutional branch of California's government and as a state agency, the Regents enjoys certain rights. For example, the Regents can make quasi-judicial determinations to which a reviewing court will accord great weight. See Ishimatsu v. Regents of the University of California, 266 Cal.App.2d 854, 72 Cal.Rptr. 756, 761-763 (1st Dist.1968). Similarly, "[an internal] regulation [adopted] by the Regents can enjoy a status equivalent to that of a state statute." Regents of University of California v. City of Santa Monica, 143 Cal.Rptr. at 279.
The Regents possesses many immunities and privileges. For example, the Regents is protected under California's Tort Claims Act. See Cal. Govt.Code § 811.2. Additionally, the Regents possesses power of eminent domain. Cal.Educ.Code §§ 92040, 92439. Its property is exempt from state, local, and county taxes. Cal.Educ.Code § 92443. Moreover, the Regents is exempt from local building codes and regulations *623 and is exempt from permit fees and inspection fees. Regents v. Santa Monica, 143 Cal.Rptr. at 280-81. Revenue bonds issued by the Regents are exempt from state taxation. Consequently, this factor favors a finding of immunity.
Next this Court will determine the extent of the Regents' autonomy from the state. The California Constitution provides that The University of California shall constitute a public trust, to be administered by the existing corporation known as the "Regents of the University of California" Cal. Const. Art. IX § 9(a). California grants the Regents substantial authority to manage the University. Specifically, Article IX § 9(f) of California's constitution provides:
The Regents of the University of California shall be vested with legal title and the management and disposition of the property of the university and of property held for its benefit and shall have the power to take and hold, either by purchase or by donation, or gift testamentary or otherwise, or in any other manner, without restriction, all real and personal property.... Said corporation shall also have all the powers necessary or convenient for the effective administration of its trust, including the power to sue and to be sued, to use a seal, and to delegate to its committees or to the faculty of the university, or to others, such authority or functions as it may deem wise.... The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its Regents and in the administration of its affairs, and no person shall be debarred admission to any department of the university on account of race, religion, ethnic heritage or sex.
Similarly, by statute the Regents has the power to "make contracts, leases and agreements including with any "state or federal agency." Cal.Educ.Code §§ 92436, 92437. Likewise, the Regents has the power to "acquire by grant purchase, gift devise, lease or by the exercise of the right of eminent domain and may hold, use, sell, lease or dispose of any real or personal property necessary for ... carrying on any of its powers pursuant to this chapter." Cal.Educ.Code § 92431. Additionally, the Regents may convey or otherwise dispose of any of its rights, interests, or properties.... Cal.Educ.Code. § 92438.
Moreover, the Regents has complete power over construction projects. The Regents can issue Revenue Bonds, to finance construction projects. The Regents has authority to structure the terms of the bonds including using its property to secure the bonds and to redeem them. Additionally, the Regents can invest any money in a construction fund as it desires subject to limitations that it includes in indentures relating to the issuance of revenue bonds. See Cal.Educ.Code §§ 92441, 92482, 92525, 92532. Furthermore, surplus money from revenue bonds can be used by the Regents for any purpose. Cal.Educ.Code § 92533.
Finally any property held by the University of California, the Regents' trust, can be insured against damage or loss. Cal. Educ.Code § 92447. Additionally, the Regents may insure against public liability. Cal.Educ.Code § 92447, Likewise, the Regents can insure against loss of revenues derived from the operation of any of its projects. The proceeds of such insurance, however can only be used to pay bonds and interest thereon. Cal.Educ.Code. § 92446.
Nonetheless, the Regents autonomy is not unlimited. For example, unlike Rutgers, the Regents must comply with California's competitive bidding statutes for any project it engages in that would exceed $50,000. See Cal.Public Contract Code §§ 10500 et seq. Additionally, the Regents must submit reports to each house of the legislature "on matters pertaining to and affecting salaries, wages, hours of work, conditions of work, and other matters relating to personnel under the jurisdiction of the Regents and the employees of the University of California."
Importantly, unlike Rutgers, and similar to Skehan the Regents is composed overwhelmingly of governmental officials, or people appointed by the Governor with the advice and consent of the Senate. Specifically, the Regents is composed of *624 seven ex officio members ... the Governor, the Lieutenant Governor, the Speaker of the Assembly, the Superintendent of Public Instruction, the president and the vice president of the alumni association of the university and the acting president of the university, and 18 appointive members appointed by the Governor and approved by the Senate.... Additionally the regents may appoint a student and/or a member of the faculty of the university or of another institution of higher learning.
Cal.Const. Art. IX §§ 9(a), 9(c). See Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349-50 (9th Cir.1981) (Board of Regents of University of Arizona covered by Eleventh Amendment where the Regents was composed of government officials or people appointed by the governor and where the Regents had to support annual reports to the governor.).
As in Skehan, the Regents autonomy, and its incorporation as a public entity, stems, however, from the mandate contained in the California Constitution to ensure that the Regents performs its governmental mission, to engage in higher education, without political or sectarian influence. See Cal.Const. Art. IX § 9(f). See also Jain v. University of Tennessee, 670 F.Supp. 1388 (W.D.Tenn.1987), aff'd, 843 F.2d 1391 (6th Cir.1988) (Separate incorporation of state university did not detract from its status as an alter-ego of the state under the Eleventh Amendment where university was incorporated in order to pursue "the ends of higher education."). Accordingly, the degree of autonomy the Regents has weighs in favor of immunity.
Finally, this Court will consider the funding of the Regents and whether any judgment would be paid from California's funds. State and federal funding constitutes the major source for funding the University of California's operations. The University of California receives about $2.1 billion from the state. The majority of the Regents funds, however, do not come from California. Instead, about 33%, of the University of California's funding comes from the state and from general funds.[4] The Regents can increase fees to ensure funding. Fees, however, only account from about 7% of the University of California's budget. In line with its fiscal autonomy, the Regents retains control over unrestricted funds, which include state funds, subject to limitations explained below. Moreover, the Regents can purchase insurance against certain litigation risks. For example, the Regents "maintains self insurance reserves for medical malpractice claims, workers compensation claims and certain other risks." Neither the Regents nor the Auditor general has described these "other risks." Accordingly, this Court will not assume that they include a judgment for patent infringement.
On the other hand, unlike Rutgers, California has not disclaimed liability for the University of California's debts. Instead, the California Constitution mandates the state to ensure the "security of the University of California's funds." Cal. Const. Article IX § 9(a). Moreover, like the SSHE, the University of California receives preferred status for state revenues. Additionally, the Regents can only issue revenue bonds for its construction projects and not to pay its judgments.
Moreover, California exercises control over the Regents and the University of California's finances. For example, the legislature oversees the University of California's budgets and can limit the uses for state moneys appropriated to the University of California. Additionally, the legislature has "prohibited the [Regents] from expending funds for new large-scale computers ... and has required the [Regents] to use certain funds ... to support additional primary care medical residences." Autonomy and Accountability: The University of California and the State Constitution, 38 Hastings Law Journal 933-34 (1987) (citations omitted). Likewise, the Regents must submit reports to the State Public Works Board of any state money that it allocates for a construction project. *625 Cal.Educ.Code § 92101. If the Regents fails to use the money allocated for construction projects, then the money reverts to the state's General Fund. Id. Finally, the Regents is subjected to audits by the state, and the financial statements of the Regents including funds that it receives from sources other than the state, is part of the annual financial report of the Auditor General of California. See Harden v. Adams, 760 F.2d 1158, 1163-64 (11th Cir. 1985) (State University protected by the Eleventh Amendment where university must submit its budget to the state and received appropriations from the state); Jagnandan v. Giles, 538 F.2d 1166, 1175 (5th Cir.1976), cert. den., 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977) (University of Mississippi protected by Eleventh Amendment in part where University had to prepare an annual report that of its "gross receipts and disbursements" including funding from sources other than the state.).
In light of these factors, this Court finds that the Regents is entitled to protection under the Eleventh Amendment. The Court acknowledges that the Regents possesses a great degree of autonomy and does not receive a majority of its funding from California. In particular, however, due to its elevated status as a "fourth branch of government" under the California Constitution, the fact that California has not detached itself from the Regents debts, and the fact that its membership consists overwhelmingly of governmental officials or people chosen by the Governor upon the consent and advice of the Senate, this Court concludes that the Regents is an arm of California.
Courts that have confronted this issue have decided that the Regents is the alter-ego of California and entitled to Eleventh Amendment protection. See Thompson v. Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) (Regents is an instrumentality of the state for Eleventh Amendment purposes.); Vaughn v. Regents of University of California, 504 F.Supp. at 1354 (Regents covered by the Eleventh Amendment: Regents could not satisfy judgment from its funds, property of Regents is property of the state and Regents was not authorized to issue bonds for claims against it.); Selman v. Harvard Medical School, 494 F.Supp. 603 (S.D.N.Y.1980). These cases bolster this Court's decision.[5]
2. Congress has not Abrogated a State's Eleventh Amendment Immunity in Enacting the Patent Laws
The Federal Circuit, in Chew v. California, 893 F.2d 331 (Fed.Cir.), cert. den., ___ U.S. ___, 111 S.Ct. 44, 112 L.Ed.2d 20 (1990), held that Congress did not subject state's to suit under the patent law. In doing so, the Court noted that if Congress had intended the patent law to displace Eleventh Amendment immunity, Congress had to provide express statutory language of that intent. Because, no express language existed in the patent law, the Chew court concluded that Congress did not abrogate Eleventh Amendment immunity. Id. at 333-35.
Congress vested exclusive jurisdiction over the patent law in federal court. Consequently, the court's decision in Chew left plaintiff without a remedy. This did not impact on the Chew court's decision. The court relied on Supreme Court decisions that refused to find that Congress destroyed a state's Eleventh Amendment immunity based solely on its decision to confer exclusive jurisdiction over a federal statute in federal court. Id. at 335-36.
Unlike the instant case, the plaintiff in Chew did not seek declaratory relief, but instead commenced an action for money damages. The Federal Circuit, expanded *626 the Chew holding to cases, like the present case, in which a plaintiff seeks a declaratory relief. Jacobs Wind Electric Co. v. Florida DOT, 919 F.2d 726, 728 (Fed.Cir. 1990). Accordingly, the Federal Circuit's decision in Chew applies to the case before this Court.
C. The Regents Has Not Waived Its Sovereign Immunity Under the Contract It Entered With Ciba-Geigy
The Supreme Court has held that an entity can waive its immunity under a contract only "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction." Florida Dept. of Health & Rehabilitative Servs. v. Florida Nursing Home Ass'n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981). For example, in In re Holoholo, 512 F.Supp. 889, 899-902 (D.Hawaii 1981), the Court found that the Regents of California had impliedly consented to suit by contract. In particular, the contract entered by the Regents contained a provision that stated the "university shall initiate, where it may legally do so, or defend litigation and claims in connection with this contract...." Accordingly, the Regents had an obligation to institute and to defend litigation.
In the instant case, under the License Agreement, the Regents agreed to act as a nominal plaintiff, if it was required for Ciba-Geigy to bring an infringement action. License Agreement 15.2. Moreover, pursuant to Article 15.4 of the License Agreement, the Regents retained the right to bring its own action for patent infringement or to join a lawsuit brought by Ciba-Geigy.
The Regents never commenced a lawsuit. Additionally, the Regents never served as a nominal party. Instead, at the time that Ciba-Geigy instituted the instant action, but prior to defendants instituting their counterclaim against the Regents, the Regents and Ciba-Geigy amended their License Agreement. Under the amended License Agreement, the Regents agreed to be bound by any judgment entered in a patent infringement lawsuit. Furthermore, the Regents withdrew its right to commence a lawsuit. Rather, pursuant to the amended License Agreement, Ciba-Geigy alone enjoyed this right.
Because the Regents amended its license agreement when Ciba-Geigy commenced this litigation, and prior to the defendant's counterclaim against the Regents, this Court finds that it must construe the License Agreement and the Amended License Agreement together. In doing so, the Court finds that the Regents has not expressly waived its sovereign immunity. Instead, the License Agreement allowed the Regents to decide at a later date whether it should commence an action and thereby waive its immunity. Moreover, under the License Agreement the Regents agreed to be named as a nominal plaintiff only when declared to be an indispensable party by a federal court. Accordingly, the Regents expressly agreed to participate in a federal action only when necessary to allow Ciba-Geigy to maintain a lawsuit.
Even if either of these provisions of the License Agreement could constitute a contractual waiver, when read with the amended License Agreement, the Court must conclude that the Regents never intended to waive its sovereign immunity. Accordingly, the instant case differs from In re Holoholo, in which the Regents agreed expressly to initiate and to defend against lawsuits.
B. Applicability of 35 U.S.C. §§ 200-204
Defendants contend that plaintiff has circumvented the requirements of 35 U.S.C. §§ 200-204. According to defendants, Ciba-Geigy never intended to comply with these statutory provisions. Consequently, defendants maintain that the License Agreement is illegal and therefore unenforceable. Hence, defendants conclude that Ciba-Geigy has no basis upon which to proceed with the instant litigation.
Even if Ciba-Geigy's actions does not render the entire License Agreement void, defendants allege that Ciba-Geigy's breach of the statute transforms its exclusive license into a non-exclusive license. Because *627 a non-exclusive licensee cannot institute an infringement action, defendants again conclude that Ciba-Geigy has no standing to maintain this action. Before this Court can consider either of these arguments, this Court must determine whether 35 U.S.C. §§ 200-204 applies to the '652 patent that the License Agreement covers.
Thirty-five U.S.C. §§ 202-204 apply to "subject inventions." Section 201 defines subject invention as
any invention of the contractor conceived or first actually reduced to practice in the performance of work under a funding agreement.[6]
Regulations promulgated by the Secretary of Commerce, that cover §§ 200-204, further explain what constitutes a subject invention. In particular, the regulations state
To the extent that a non-government sponsor established a project which, although closely related, falls outside the planned and committed activities of a government-funded project and does not diminish or distract from the performance of such activities, inventions made in performance of the non-government sponsored project would not be subject to the conditions of these regulations. An example of such related but separate projects would be a government sponsored project having research objectives to expand scientific understanding in a field and a closely related industry sponsored project having as its objectives the application of such knew knowledge to develop new technology. The time relationship in conducting the two projects and the use of new fundamental knowledge from one in the performance of the other are not important determinants since most inventions rest on a knowledge base built up by numerous independent research efforts extending over many years.
37 C.F.R. § 401.1 (1991).
In the present case, defendants contend that the '652 patent comes under the scope of §§ 200-204 because the Regents received grants related to the '652 patent from governmental agencies. In particular, defendants maintain that the University of California gave $4,920 from the Biomedical Research Support Grant, Grant No. RR5756 (the "BRSG grant"), that it received from the Department of Health and Human Services to Dr. Jed Rose. Additionally, the University of California received a grant from the National Institute of Drug Abuse (the "NIDA Grant").
Defendants simply mention these grants and declare that they helped develop the transdermal nicotine patch disclosed in the '652 patent. They then conclude that §§ 200-204 apply to the nicotine transdermal patch. They fail, however, to demonstrate that the transdermal nicotine patch disclosed in the '652 patent was "conceived" when the inventors were performing work using the grants described above or was "first actually reduced to practice" when the inventors were working under these grants.
In fact, it seems that these grants, although used for research related to the transdermal nicotine patch described in the '652 patent, are not subject inventions. The inventors of the transdermal nicotine patch, used the BRSG grant to perform a pilot study in which they applied an ointment that contained nicotine to the skin. This device differs substantially from the mechanism described in the '652 patent.
Similarly, the NIDA Grant was used by the inventors to research a person's motivation for smoking. The grant did not allow the inventors to "first reduce" the transdermal nicotine patch described in the '652 *628 patent to practice. Instead, it seems at most that the inventors built upon the knowledge attained from these research grants when they developed their transdermal nicotine patch. As indicated in the regulations to § 201, however, using knowledge gained from governmental research to create a related product does not transform that product into a subject invention under § 201.
Furthermore, if the grants were used to develop subject inventions, the agencies would have entered into funding agreements with the inventors. Defendants correctly define a funding agreement as
any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal Government.
35 U.S.C. § 201.
Under 35 U.S.C. § 202(c), however, a funding agreement must contain certain provisions. For example, a funding agreement must state that the contractor can elect to retain rights to the patent. Although, defendants have produced documents that show the inventors received money from federal agencies, no party has produced any documents that contain the provisions required by § 202(c). Additionally, neither the Department of Health and Human Services nor the National Institute on Drug Abuse has made any claim to the transdermal patch involved in the instant litigation. These factors further support the inapplicability of §§ 200-204.
Nonetheless, defendants contend that this Court must find that §§ 200-204 apply to the '652 patent because plaintiff, the Regents and the inventors of the '652 patent, acknowledge that §§ 200-204 apply to the nicotine transdermal patch described in the '652 patent. Initially, defendants point out that the '652 patent states that the inventors developed it, in part, with money from the above cited grants.
Moreover, defendants note that plaintiffs and the Regents referenced §§ 200-204 repeatedly in the agreements they entered. In particular, the whereas clause of the License Agreement states
the development of the Invention was sponsored in part by the Veterans Administration (VA), and the VA has determined that all rights, title, and interest in the Invention lies with the Regents, and as a consequence this license agreement is subject to overriding obligation to the federal government as set forth in Executive Order 10096 and 35 USC, 200-204.
The whereas clause in the Exclusive License agreement contains identical language to the whereas clause in the License Agreement. Additionally, the License Agreement requires any licensee to comply §§ 200-204. License Agreement § 23. Similarly, the Exclusive Option Agreement provides that the contemplated license would conform with Public Law 96-517, codified at 35 U.S.C. § 200, et seq.
Although this Court agrees that the language in the '652 patent, the Exclusive Option Agreement, and the License Agreement, support defendants' position, in light of the absence of any funding agreement that contains the provisions required by § 202 and the inability of defendants to show that the transdermal nicotine patches disclosed in the '652 patent are subject inventions, this Court concludes that §§ 200-204 do not apply to the transdermal nicotine patches described in the '652 patent. In fact, during oral argument Ciba-Geigy stated that the '652 patent disclosed multiple inventions, one of which is the transdermal patch at issue. Ciba-Geigy contends that §§ 200-204 applies to one of the other inventions described in the patent, if at all. Defendants have not rebutted these assertions.
C. Illegality of the License Agreement
Even if §§ 200-204 apply, this does not render the License Agreement entered between Ciba-Geigy and the Regents illegal and unenforceable. The agreement that the Regents entered with Ciba-Geigy does not require Ciba-Geigy to violate §§ 200-204. Rather, the License Agreement allows Ciba-Geigy to manufacture *629 HABITROL in the United States. Ciba-Geigy has chosen to breach the provision of the agreement that mandates it to substantially manufacture its product in the United States and consequently has violated § 204. Courts have held that if a party can perform an agreement without violating a statute but the party chooses to abrogate the statute the party's action does not render the agreement illegal. Du Pre v. Bogumill, 173 Cal.App.2d 406, 343 P.2d 415 (2d Dist.1959); Macco Const. Co. v. Farr, 137 F.2d 52 (9th Cir.1943).
For example, in Du Pre, plaintiff sold defendant a bar. Under California law a person who operates a bar must have a license. Defendant never obtained the license. Plaintiff sued defendant to enforce the contract. Defendant alleged that because it violated the statute the contract was illegal and unenforceable. The court held that the contract was not illegal because defendant could have chosen to obtain a license. Id., 343 P.2d at 420-21.
In the instant case, Ciba-Geigy could have chosen to conform with the License Agreement and commence manufacturing HABITROL when it had manufacturing facilities in the United States. Accordingly, as in Du Pre, Ciba-Geigy's decision to manufacture HABITROL in Germany does not create an illegal contract.[7]
Even if the entire contract is not illegal, defendants argue that Ciba-Geigy's actions convert its license into a non-exclusive license. Because a non-exclusive licensee cannot maintain an infringement action, defendants conclude that Ciba-Geigy has no standing to commence the instant lawsuit. For reasons explained in more detail below, an exclusive licensee who has sufficient rights to enable it to maintain an infringement action does not lose that ability because a condition subsequent would destroy its exclusive license.
A party like Ciba-Geigy who does not substantially manufacture its product in the United States in accordance with § 204 does not automatically lose its exclusive license. Instead, under § 203 the federal agency which is a party to a funding agreement can exercise its march-in rights and grant additional licenses to "responsible applicants." The agency cannot grant these licenses unless it complies with regulations promulgated under § 203. These regulations provide that the agency must notify the contractor of its intention to exercise its march-in rights. Before the agency can grant additional licenses, however, the agency must conduct a hearing. 37 C.F.R. § 401.6 (1991).
Importantly, the agency does not have to exercise these rights. Moreover, because no private right of action exists under §§ 200-204, no party can force the agency to grant additional licenses. See Platzer v. Sloan-Kettering Institute for Cancer Research, 787 F.Supp. 360 (S.D.N.Y.1992); 1980 U.S.Code Cong. and Admin.News 6460, 6474 ("Agency failure to initiate a march-in proceeding in response to a petition is not a determination appealable"). Accordingly, if Ciba-Geigy fails to conform with § 204, it can lose its exclusive license if the appropriate governmental agency exercises its march-in rights. Because no governmental agency has started these proceedings, Ciba-Geigy still retains its exclusive license.[8]
*630 D. Ciba-Geigy's Standing to Sue under the License Agreement
Alternatively, defendants argue that the License Agreement does not provide Ciba-Geigy with standing to file suit. Specifically, defendants contend that the suit cannot proceed without joinder of the Regents. Accordingly, defendants maintain that the Regents is a necessary party under Federal Rule of Civil Procedure ("Rule") 19(a) and that the Regents should join the instant action. Moreover, defendants conclude that the Regents is an indispensable party under Rule 19(b). Consequently, they maintain that if the Regents is immune from suit, this Court must dismiss the instant complaint.
Whether Ciba-Geigy has standing to commence an action without the Regents depends on the rights granted to Ciba-Geigy under the License Agreement. In the seminal case of Waterman v. Mackenzie 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923 (1891), the Supreme Court delineated the different types of interests in a patent that a licensor could convey to a licensee. The Supreme Court stated
The patentee or [its] assigns may by instrument in writing, assign, grant, and convey, either 1st the whole patent, comprising the exclusive right to make, use, and vend the invention throughout the United States; or 2d, an undivided part or share of that exclusive right; or, 3d, the exclusive right under the patent within and throughout a specified part of the United States. A transfer of either of these three kinds of interests is an assignment, properly speaking, and vests in the assignee a title in so much of the patent itself, with a right to sue infringers; in the second case, jointly with the assignor; in the first and third cases in the name of the assignee alone. Any assignment or transfer, short of one of these, is a mere license, giving the licensee no title in the patent and no right to sue at law in his own name for infringement.
Id. at 255, 11 S.Ct. at 335. Additionally, the Court noted that the term given to the agreement through which a patentee or his or her assigns transfers rights to a patent does not determine the transfer's legal effect. Instead, the Supreme Court cautioned that a court must examine the provisions contained in the agreement. Moreover, the Waterman Court held a condition subsequent upon which rights to a patent terminate does not prohibit the transfer of rights from being an assignment. Id. at 256, 11 S.Ct. at 335.
Courts construing whether a contract provided a licensee with enough rights to the patent to enable the licensee to bring a lawsuit have examined whether the transferor granted the transferee "essential rights to the patent." These rights are the "right of exclusivity, the right to transfer and most importantly the right to sue infringers." Calgon Corp. v. Nalco Chemical Co., 726 F.Supp. 983, 986 (D.Del.1989) (citing Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 35-39, 43 S.Ct. 254, 256-57, 67 L.Ed. 516 (1923); 2 P. Rosenberg Patent Law Fundamentals, § 16.01[1][a], at 16-4 (1989 rev.) (emphasis added)).
For example, guided by the Waterman Court, the Federal Circuit in Vaupel Textilmaschinen Kg v. Meccanica Euro Italia S.P.A., 944 F.2d 870 (Fed.Cir.1991), concluded recently that a patent owner transferred substantial rights to the patent thereby allowing its licensee to bring an infringement action without joining the patent owner. In doing so, the Court examined the various agreements that the parties entered. The Court scrutinized these agreements in order to distill whether the parties intended to transfer sufficient rights in the patent to allow the licensee to *631 commence a lawsuit in its own name.[9]Id. at 874.
The initial agreement executed in 1973, provided the licensee with the exclusive right to use the patent. It did not provide it with the right to make or vend the patent. Additionally, it did not allow the licensee to commence an action against a potential infringer. Id. The parties amended their initial agreement during January 1977. Under the modified agreement, the licensee obtained the right to make and distribute the product disclosed under the patent. Id.
A subsequent agreement endorsed by the parties allowed the licensee to "make, have made, use, sell lease, rebuild and maintain in the United States and its territories weaving machines which practice the inventive method and apparatus covered by the claims of the patent." Importantly, this agreement granted the licensee the sole right to sue for "past present and future infringement." In order to exercise its right to commence litigation, the licensee had to notify the patentee that it intended to bring a lawsuit. Id.
In addition to describing the rights to the patent that the patentee transferred, the Vaupel court also examined the rights that the patent owner retained. In particular, the patentee retained the right to veto any potential sublicensee selected by the licensee. Moreover, in the event that the licensee ceased producing the patented product or declared bankruptcy, the exclusive license agreement terminated automatically. Finally, the patent owner retained the right to receive any damages that a court awarded to its licensee. Id. at 875.
The Vaupel court held that these rights did not compel it to hold that the licensee could not maintain an action in its own name. In particular, the court found that the "sublicensing veto was a minor derogation from the grant of rights," that did not "interfere with the full use by [the licensee] of the exclusive rights [to make use and vend] under the patent." Moreover, the court noted that the right to receive damages and to terminate the license upon the occurrence of a condition subsequent comported with an assignment of the patent.
The court placed importance on the patentee's grant of its right to sue for infringement of the patent. The court reasoned this transferred right was of particular significance because "the policy underlying the requirement to join the owner when an exclusive licensee brings suit is to prevent the possibility of two suits on the same patent against a single infringer." Even though the exclusive license agreement required the licensee to notify the patent owner of its intent to commence an action, the court found this did not impinge on the licensee's right to maintain an infringement action.
Based on the rights granted to the licensee that allowed it standing to maintain an action in its own name, the Vaupel court found further that the patent owner was not a necessary party under Rule 19. Fed. R.Civ.P. 19(a).[10] In particular, the court found that "complete relief could be accorded to the parties currently in the lawsuit" and that no party to the lawsuit was subjected to "a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." Id. at 876. Because the patent owner was not necessary under Rule 19(a), the court did not have to consider whether the owner was subject to service *632 and if not whether it was an indispensable party under Rule 19(b).
Similarly, in Surgical Laser Technologies v. Laser Industries and Sharplan Lasers Inc., 21 U.S.P.Q.2d 1593, 1991 WL 255827 (1992), the Court held that an exclusive license agreement, provided the licensee with sufficient rights to maintain an action in its own name. Consequently, the court as in Vaupel concluded that the patent owner was not a necessary party under Rule 19((a). Subsequently, the court refused to dismiss the action under Rule 19(b) for failure to join an indispensable party.
The facts in Surgical Laser Technologies are similar to the present action. In Surgical Laser Technologies the University of Washington owned the patent and entered into an exclusive license agreement with a commercial manufacturer. Under their agreement the University of Washington retained certain rights to the patent.
The court followed the Vaupel court and examined both the rights granted to the licensee under the exclusive license agreement as well as the rights that the licensor retained in order to determine whether the licensee had to join the patent owner in the lawsuit. The exclusive license agreement gave the licensee the right:
(1) to make, have made, use and sell products worldwide that were covered by the University of Washington's patent rights
(2) to grant one or more sublicenses to make have made use and sell licensed products covered by the University of Washington's patent rights
(3) to bring in its own name or if required by law jointly with the University of Washington a suit for infringement of the licensed patent rights including the right to sue for past infringement of the licensed rights
(4) to enjoin infringement and to collect damages, profits, and awards of whatever nature recoverable for infringement
(5) to settle any claim or suit for infringement of the patent by granting he infringing part a sublicense for the patent.
The University Washington retained
(1) a personal right to make have made use and publish licensed products of the patents `for purpose of scholarly research or on behalf of the University of Washington only and for no other purpose'
(2) a right to practice under the patent rights and to use and distribute to third parties the licensed products for its own non-commercial research purposes
(3) to consent, which consent shall not be unreasonably withheld, to any consent judgment or other voluntary final disposition of any suit brought by the licensee
(4) to intervene in a declaratory action alleging invalidity or non-infringement brought against the licensee within 30 days of its commencement and to take over the sole defense of the action at its own expense.
Despite the rights retained by the University of Washington to make and to use the patent, the Court concluded that the University of Washington transferred substantial rights to the patent. Moreover, the rights that the University of Washington retained to consent to any voluntary disposition of an action commenced by the licensee and to intervene in an action for invalidity or non-infringement brought against the licensee did not interfere substantially with the licensee's right to sue. Additionally, the University's willingness to consent to a lawsuit if necessary did not concern the court. Consequently, the Court held that the licensee was in effect an assignee of the patent.
Furthermore, the court found that the licensee protected the University of Washington's remaining rights in the patent adequately. Moreover, given the rights to the patent that the University of Washington granted to the plaintiff, the court held that the University of Washington's absence satisfied none of the requirements of Rule 19(a). Accordingly, the Court held that the University of Washington was not a necessary party to the action. Consequently, the court never had to consider whether the University of Washington's immunity *633 from suit made it an indispensable party under Rule 19(b).
In the instant case as in Vaupel and Surgical Laser Technologies, the agreements entered into between the Regents and Ciba-Geigy reveal that Ciba-Geigy can maintain a lawsuit without joining the Regents. In particular, this Court finds that the Regents transferred substantial rights to exclusivity, to transfer, and to institute a lawsuit under the patent. Because the Regents transferred such rights to Ciba-Geigy, this Court further finds that the Regents is not a necessary party to this action under Rule 19(a). Accordingly, this Court does not reach the issue of whether the Regents, who is not subject to this Court's jurisdiction, would be an indispensable party under Rule 19(b).
The Regents granted Ciba-Geigy substantial rights to the patents' exclusivity. The license agreement provides Ciba-Geigy with "an exclusive license ... to make, have made, use, and sell any material or product that is covered by [the patent issued to the Regents]." Defendants maintain, however, that the Regents retained enough rights to the patent to deprive Ciba-Geigy of exclusivity. In particular the Regents contends that the license agreement allows the Regents to "grant additional licenses [pursuant to the license agreement] because Ciba-Geigy is not manufacturing Habitrol in the United States ... [and] because Ciba-Geigy has been unable to fill the demand for the product." Defendants' Memorandum in Opposition to the Motion to Dismiss Counterclaim Against Counterclaim-Defendant and in Support of Cross-Motion to Dismiss Complaint by Ciba-Geigy for Lack of Standing at 16.
At the outset, this Court notes that the occurrence of a condition subsequent that can terminate an exclusive license agreement has no bearing on whether the patentee transferred exclusive rights to the patent. See Waterman, 138 U.S. at 256, 11 S.Ct. at 335; Vaupel at 875. Additionally, contrary to defendants' assertion the condition subsequent has not occurred.
Defendants contend correctly that § 6 of the License Agreement provides that if the licensee is "unable to reasonably fill the market demand for the Licensed Product following commencement of marketing for any unreasonable period of time during the exclusive period of this Agreement; then the Regents shall have the right to convert this License in the United States to a non-exclusive license in accordance with paragraph 9.1." Section 23 of the License Agreement further provides that if the licensee cannot meet the statutory requirements set out in 35 U.S.C. §§ 200-204, which includes substantially manufacturing the Licensed Product in the United States then the Regents can terminate the exclusive license agreement, in accordance with § 9.1 of the License Agreement.
Under § 9.1, the Regents can convert the exclusive license, upon one of the preceding conditions only if it first gives written notice of the default. The Regents has the right to terminate the Exclusive License only if Ciba-Geigy has failed to cure such default "within 60 days of the effective date of the notice." In the instant case, the Regents has never sent a notice of default. Accordingly, at this time the Regents has no right to terminate Ciba-Geigy's exclusive license. Consequently, even assuming that Ciba-Geigy has breached §§ 6 and 23 of the License Agreement, at the present time, this has no effect on Ciba-Geigy's Exclusive License. Therefore, this Court finds that §§ 6 and 23 do not impair Ciba-Geigy's right to its exclusive license.
Moreover, the Regents retained the right to use the patent for educational purposes. As in Surgical Laser Technologies, however, this right does not substantially detract from Ciba-Geigy's exclusive right to commercialize the patented product. Similarly, the government's retained right to a non-exclusive license for its own use does not substantially interfere with Ciba-Geigy's rights to exclusivity. Instead, this non-exclusive right is consistent with Ciba-Geigy's standing as the exclusive licensee able to market, make and sell the patented product. In fact, courts have held that an exclusive licensee's rights to exclusivity are *634 not substantially altered where the patent owner had granted other entities non-exclusive licenses to the patent and the exclusive licensee's rights are conditioned on these entities exercising the rights granted to them previously. See Waterman, 138 U.S. at 261, 11 S.Ct. at 337; Refac International Ltd. v. Visa USA, 16 U.S.P.Q.2d 2024, 2027-28, 1990 WL 130032 (N.D.Cal.1990). Therefore, this Court finds that the Regents granted Ciba-Geigy the right to exclusivity.
Additionally, this Court finds that the Regents granted Ciba-Geigy substantial rights to transfer the patent. The License Agreement permits Ciba-Geigy to sub-license the patent without any consent from the Regents. Moreover, the License Agreement allows Ciba-Geigy to assign its rights under the patent. The Regents has retained the right to consent to the assignment. The Regents, however, cannot unreasonably withhold its consent.
In Vaupel the Court examined the ability that the Licensee had to transfer the patent rights. Although the licensor could veto any sublicense that the licensee granted, the Vaupel court concluded that this did not interfere substantially with the licensee's rights under the patent. Cf. Bell Intercontinental Corporation v. United States, 381 F.2d 1004, 180 Ct.Cl. 1071 (1967) (Court found that transfer of patent rights amounted to a sale for tax purposes even though patent owner forbade exclusive licensee from assigning its interest to anyone other than a party to whom licensee sold its assets and good will. Court reasoned that such a restriction "was a reasonable method to protect the [licensor's] rights to receive royalty payments.").
In contrast, the court in Refac found that an exclusive licensee did not retain sufficient rights to maintain a lawsuit without joining the patent owner. In that case, the licensor prohibited the licensee from assigning its rights to anyone other than a successor company of the licensee. Similarly in Calgon Corp. v. Nalco Chemical Co., the court found that an exclusive licensee had no standing to bring a lawsuit without joining the patent owner partly because the exclusive licensee did not receive a right to transfer the patent. Specifically, the patent owner had to consent to any assignment. Because rights to a patent are analogous to rights to personal property, the court considered the right to assign the patent an essential right of ownership. 726 F.Supp. at 986.
The court can distinguish Refac easily. In the instant case, the licensor does not have an unrestricted right to veto any assignment of the patent. Instead, the Regents can only withhold its consent reasonably. Because the Regents does not intrude sufficiently upon Ciba-Geigy rights to transfer the patent, this Court finds as in Vaupel, that Ciba-Geigy possesses sufficient rights to transfer the patent.
Finally, from considering the various agreements that Ciba-Geigy and the Regents entered, this Court finds that the Regents granted Ciba-Geigy the particularly important right to sue potential infringers. The License Agreement limited Ciba-Geigy's right to maintain a lawsuit. Under the License Agreement, the Regents agreed to act as a nominal plaintiff, if it was required for Ciba-Geigy to bring an infringement action. License Agreement 15.2. Moreover, pursuant to Article 15.4 of the License Agreement, the Regents retained the right to bring its own action for patent infringement or to join a lawsuit brought by Ciba-Geigy.
Significantly, after Ciba-Geigy began this action but prior to the defendants instituting their counterclaim against the Regents, Ciba-Geigy and the Regents amended Article 15 of the License Agreement. Specifically, they deleted Article 15.4 of the License Agreement and withdrew the Regents' consent to be named as a nominal plaintiff. Under the amended License Agreement, the Regents agreed not to file any patent infringement lawsuit and agreed that any judgment obtained by Ciba-Geigy in a patent infringement suit filed by Ciba-Geigy would bind the Regents. Moreover, the Regents assigned any and all potential causes of action "as alleged in the Alza and Elan suits" to Ciba-Geigy.
*635 Subsequently, the Regents granted Ciba-Geigy the exclusive right to sue infringers, for past present and future infringement. Even under the amended license agreement, however, the Regents retained certain rights prior to Ciba-Geigy instituting a lawsuit. In particular, the License Agreement provides that Ciba-Geigy must confer with the Regents before Ciba-Geigy would institute any action for patent infringement. The License Agreement prohibits Ciba-Geigy from commencing a lawsuit within five days of notifying the Regents of the alleged infringement without first obtaining the Regents' consent. Moreover, the Regents retains the right to defend itself if Ciba-Geigy fails to timely defend the Regents.
This Court finds that these retained rights do not limit Ciba-Geigy's particularly significant right to bring a lawsuit. For example, in Vaupel the licensee had to notify the licensor prior to commencing a lawsuit. The court, however, did not find that this requirement abrogated the licensee's right to bring a lawsuit in its own name. Instead, the court found that the exclusive license provided the licensee with sufficient rights to foreclose the possibility that an infringer would face suits from both the licensee and the patent owner.
Additionally, in Surgical Laser Technologies the licensor retained the right to reasonably consent to any settlement and to bring an action to defend itself in a suit for non-infringement and invalidity. The court found, however, that these retained rights did not make the licensor a necessary party to a lawsuit.
In the instant case as in Vaupel, Ciba-Geigy's obligation to notify the Regents of any suit and to wait five days prior to bringing a lawsuit does not interfere substantially with Ciba-Geigy's right to bring a lawsuit. Moreover, the Regents ability to maintain a defense if Ciba-Geigy refuses to timely do so does not encroach substantially on Ciba-Geigy's right to maintain an action. Importantly, none of the rights retained by the Regents threatens a defendant with multiple suits. Consequently, Ciba-Geigy has substantial rights to exclusivity, to transfer, and to maintain an action. Accordingly, Ciba-Geigy has standing to commence the instant action.
Similarly, this Court finds that the Regents is not a necessary party to this suit under Rule 19(a). Specifically, this Court finds that complete relief can be afforded to the parties without the Regents' joinder. Moreover, this Court finds that defendants would not be subjected to multiple lawsuits if the Regents was not joined. Finally, this Court finds that Ciba-Geigy protects the Regents interest in the lawsuit adequately. Accordingly, this Court does not have to determine whether the Regents could have been an indispensable party.
Although the amended agreement granted Ciba-Geigy the sole ability to sue a potential infringer, the parties did not execute this amendment until six and one half months after Ciba-Geigy brought its action against the defendants. They entered into the amended agreement, however, prior to defendants' counterclaim against the Regents. The parties agreed that the amendment should be effective as of the October 29, 1991, the date they executed the License Agreement. Accordingly, at the time Ciba-Geigy instituted suit against defendants, the Regents had a right to maintain its own action and therefore, could have subjected defendants to multiple lawsuits. Therefore, this Court must decide whether it should apply the amended agreement retroactively. If this Court applies the amended agreement retroactively, then Ciba-Geigy would have standing to institute this action and the Regents would not be a necessary party.
Courts that have confronted this issue have disagreed. For example, in Afros S.P.A. v. Krauss-Maffei Corp., 671 F.Supp. 1402 (D.Del.1987), aff'd, 848 F.2d 1244 (Fed.Cir.1988), the court held that the licensee had no standing to bring an action when the patent's assignment did not become valid until at least seven months after the licensee instituted a counterclaim. Under West German law the assignment related back to the day the licensee instituted the counterclaim. Despite the relation back of the assignment under West German *636 law, the court held that the licensee had to have standing on the date that it brought its lawsuit.
The court noted that the patent laws allow only an assignee or patent owner to commence a lawsuit in order to ensure that the dispute would be "completely adjudicated." According to the court, allowing a licensee to sue "would give the patentee an opportunity without expense to himself to stir up litigation by third persons that is certainly contrary to the purpose and spirit of the statutory provisions for the assignment of patents." Id. at 1445 (quoting Crown Die & Tool Co., 261 U.S. at 39, 43 S.Ct. at 257). Consequently, the court reasoned permitting a licensee to institute a lawsuit on the ground that an assignment of the patent to the licensee subsequently became valid would enlarge the class of people who could maintain patent actions impermissibly. In fact, the court maintained that such a rule would allow parties to manipulate the extent of their liability pending the lawsuit. Id. at 1446.[11]See also Switzer Brothers, Inc. v. Byrne, 242 F.2d 909 (6th Cir.1957) (Patent owners assignment of patent to licensee two years after suit was commenced by licensee did not cure defect in standing at time of lawsuit.); Clayhill Resources, Ltd. v. MSB Industries, Inc., No. 80 Civ. 11645 (RLC) (S.D.N.Y. Nov. 3, 1980).
Contrarily, in Procter & Gamble v. Kimberly-Clark Corp., 684 F.Supp. 1403 (N.D.Tex.1987), the court held that where a licensor assigned its interest in the patent a few weeks after the licensee commenced suit, the licensee had standing to bring the action even though when the plaintiff instituted the lawsuit it was a "mere licensee" of the patent. In Procter & Gamble, the owner of the patent granted plaintiff "its entire right title and interest in the patent." The owner also assigned plaintiff the right to bring suit for past, present and future patent infringement. Id. After the licensee instituted the lawsuit, the defendant brought a counterclaim to join the patent owner. The patent owner moved to dismiss the counterclaim.
In concluding that the licensee had standing to maintain the lawsuit and that the patent owner did not have to join the lawsuit, the court expressly declined to follow Switzer. Instead, the court noted that patent owners were dismissed from lawsuits when the patent owner assigned its rights to the patent during the pendency of the lawsuit. Id. at 1406-07 (citing Irving Air Chute Co. v. Switlik Parachute & Equipment Co. 26 F.Supp. 329, 330 (D.N.J.1939); Robert L. Ferman & Company v. General Magnaplate Corporation, 33 F.R.D. 326, 329 (D.N.J.1963). Guided by these decisions, the court reasoned that forcing a party to join a lawsuit who has no real interest in the patent would simply "exalt form over substance." Accordingly, the court found that the assignee had standing to maintain a suit without the joinder of the patent owner.
Moreover, the court held that Rule 19 did not compel it to join the patent owner as a party to the lawsuit. The court noted complete relief could be accorded among the parties involved in the lawsuit. The court found further that the parties would not be subjected to multiple lawsuits if the patent owner was not a party to the action, and that the patent owner's rights were protected adequately despite its absence from the lawsuit.[12]Cf. Erbamont Inc. v. Cetus Corp., 720 F.Supp. 387 (D.Del.1989) (Court held that licensee had standing to maintain suit and that patent owner and licensor *637 were not indispensable parties in part because patent owner and licensor agreed to submit affidavits in which they averred that they would be bound by any judgment entered against them. Court also noted that res judicata would probably bar subsequent lawsuits); Catanzaro v. International Telephone & Telegraph Corp., 378 F.Supp. 203 (D.Del.1974) (co-owner did not have to join co-owner in patent infringement suit where co-owner agreed, in an affidavit, not to institute any further suit, where court found that stare decisis would discourage any further lawsuits, and where alternative forum would allow plaintiff to join co-owner.).
In light of the above discussion, this Court finds that the amended agreement relates back to the day that plaintiff instituted the lawsuit. The Court notes that as in Procter the patent owner has no real interest in the lawsuit. Accordingly, to force the Regents to join the instant lawsuit or to dismiss the lawsuit at this juncture because it is an indispensable party would only "exalt form over substance." Significantly, due to the rights in the patent that Ciba-Geigy currently possesses, if this court dismissed the action, Ciba-Geigy could simply reinstitute the lawsuit.
This Court further finds that its ruling upholds the policy for only allowing an assignee or owner to commence a lawsuit. Due to the rights to bring a lawsuit that the Regents transferred to Ciba-Geigy in its amended agreement, continuing the lawsuit without joinder of the Regents will allow the Court to litigate all the rights to the patent without fear of the Regents bringing a subsequent lawsuit.
Finally, unlike the Afros court this Court does not believe its ruling will impermissibly expand the types of entities that can bring infringement actions or will create manipulative situations. Instead, this decision would force patent owners and licensees to examine their relationship after the licensee institutes a lawsuit. If the patent owner intended to transfer substantial rights to the patent, then the patent owner and the licensee could clarify this during the pendency of the lawsuit and thereby defeat a motion to dismiss for lack of standing.
CONCLUSION
For the reasons discussed above, this Court will grant the Regents motion to dismiss based on sovereign immunity and will deny defendants' motion to dismiss for lack of standing.
NOTES
[1] Other companies sought an exclusive licensing agreement from the Regents for the '652 patent.
[2] The recital clause of the License Agreement also references 35 U.S.C. §§ 200-204. Specifically, it declares that
the development of the Invention was sponsored in part by the Veterans Administration (VA), and the VA has determined that all rights, title, and interest in the Invention lies with The Regents, and as a consequence this license agreement is subject to overriding obligations to the federal government as set forth in Executive Order 10096 and 35 USC, 200-204.
[3] The Fitchik court abandoned the Urbano factor that examined whether the agency exercised a governmental or proprietary function, because the Supreme Court rejected this distinction in Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985).
[4] The amount of funding by the state, however, is not dispositive. See Jain, 670 F.Supp. at 1390 (University derives more than one-third of revenues from state appropriations.).
[5] The Regents argues that this Court does not have to perform a Fitchik like analysis because this Court should accord the Regents Eleventh Amendment immunity by virtue of its status under the California Constitution. This Court disagrees. First, the Court notes that an entities status under state law, is one factor that a court should consider and that Eleventh Amendment immunity must be determined under federal law. See Kovats, 822 F.2d at 1307. Consequently, courts confronted with universities covered by a state constitution have performed the same type of analysis that the Court has undertaken. See Estate of Ritter v. University of Michigan, 851 F.2d 846 (6th Cir.1988); Vaughn v. Regents of California, 504 F.Supp. at 1352-1354.
[6] Under § 201 a contractor is
any person, small business, firm or nonprofit organization that is a party to a funding agreement.
35 U.S.C. § 201.
Pursuant to § 201 a funding agreement is any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal Government.
35 U.S.C. § 201.
[7] Defendants cite cases that allow a court to consider extrinsic evidence to show that although a contract is legal on its face, the parties really entered the contract to violate the law. See Homami v. Iranzadi, 211 Cal.App.3d 1104, 260 Cal.Rptr. 6 (6th Dist.1989) (contract whose purpose is to avoid tax laws is illegal); May v. Herron, 127 Cal.App.2d 707, 274 P.2d 484 (1954) (contract whose purpose is to use improperly use veterans priority to aid non-veteran is illegal). Defendants merely assert conclusory statements that the Regents must have known Ciba-Geigy intended to violate § 204. These conclusory statements do not show that the parties intended to violate § 204.
[8] Defendants cite cases in which the court declared a contract illegal and unenforceable where the purpose of the contract was to violate a statute. Courts declared these contracts unenforceable even though the statute violated did not provide this remedy. Relying on these cases, defendants conclude that this Court should declare the exclusive license unenforceable because Ciba-Geigy never intended to comply with § 204. See e.g. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961); Severance v. Knight-Counihan Co., 29 Cal.2d 561, 177 P.2d 4 (1947).
The cases cited by defendants are distinguishable from the instant case. In those cases, the statutes provided penal penalties. Based on these penalties, courts concluded that the legislature intended to declare any contracts that violate these statutes unenforceable. In the instant case, however, transgressing § 204 does not carry a penal penalty. Instead, at most, the statute renders an exclusive license non-exclusive. Therefore, even if the License Agreement is an illegal contract, this Court would still not declare Ciba-Geigy's exclusive license void.
[9] As in Waterman, the Court noted that the agreement did not have to constitute a formal assignment in order for the patent owner to constitute effectively an assignment.
[10] Rule 19(a) provides:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
[11] The Afros court noted that the Federal Circuit had not confronted this issue. Because of the dearth of authority, the court considered the merits of the motions before it. The Federal Circuit subsequently affirmed the Afros court on the merits of its decision without opinion.
[12] Defendants argue that Procter & Gamble is distinguishable from the instant action because the plaintiff was an assignee of the patent whereas in the present case Ciba-Geigy is only a licensee. As discussed above, this Court finds that the Regents transferred substantial rights to the patent to Ciba-Geigy. Accordingly, this Court concludes that Ciba-Geigy can maintain an action in its own name. As further discussed above, whether the parties refer to the rights conveyed as a "license" or "assignment" has no bearing on the type of rights conveyed. Instead the court must examine the specific rights transferred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567565/ | DENIS MULVIHILL
v.
IRWIN I. MARTIN AND US AGENCIES CASUALTY INSURANCE AGENCY INC, ET AL.
No. 08-1498.
Court of Appeals of Louisiana, Third Circuit.
June 3, 2009.
Do Not Publish
ANDRUS PAUL LaBORDE, III, Counsel for Defendant-Appellant. Louisiana Farm Bureau Casualty Ins. Co. and Katie I. Haley
PHILIP A. LETARD, Sr., Counsel for Plaintiff-Appellee, Dennis Mulvihill.
Court composed of COOKS, AMY, and PAINTER, Judges.
COOKS, J. concurs in the result only and assigns written reasons.
PAINTER, Judge.
Defendants, Katie I. Haley, and her insurer, Louisiana Farm Bureau Casualty Insurance Co., appeal the trial court's judgment against her and in favor of Plaintiff, Denis Mulvihill in the amount of $50,000.00 as a result of injuries received in an accident in which Plaintiff was hit by a vehicle driven by Irwin Martin and thrown into the path of Haley's vehicle.
FACTS
On August 28, 2005, Haley was driving west in heavy traffic on U.S. Highway 84 near Ferriday, Louisiana, evacuating her home in Franklinton, Louisiana due to Hurricane Katrina. Martin was driving east on U.S. Highway 84. Mulvihill, an officer with the Concordia Parish Sheriff's office, was directing traffic at the intersection of U.S. Highway 84 and La. Highway 15. As Martin entered the intersection, he hit Mulvihill knocking him into oncoming traffic, where he was hit by Haley's vehicle. Mulvihill suffered a broken leg and other injuries.
As a result of the accident and the injuries incurred, Mulivhill filed this suit. Mulvihill settled his claim against Martin and his insurer. The remaining claim against Haley was tried by the court. At the close of Plaintiff's case, the trial court denied Defendants' motion for involuntary dismissal. After the trial was completed, the court found Haley at fault for the accident and rendered judgment against her in the amount of $50,000.00. Haley and her insurer appeal.
DISCUSSION
Negligence/Sudden Emergency
Plaintiff asserts that the trial court erred in failing to apply the sudden emergency doctrine.
Under this doctrine, a driver without sufficient time to weigh all the circumstances and whose actions did not contribute to the emergency cannot be assessed with negligence even though a subsequent review of the facts discloses he may have adopted a safer, more prudent course of conduct to avoid an impending accident. Jackson v. Town of Grambling, 29, 198, 29, 199 (La.App. 2 Cir. 2/26/97), 690 So. 2d 942. If the driver is shown to have proceeded carefully and prudently, the emergency will not be seen as arising from his or her own negligence. Marigny v. Allstate Ins. Co., 95-0952 (La.App. 4 Cir. 1/31/96), 667 So. 2d 1229. In order to use the sudden emergency doctrine, the driver must have seen the accident beginning to occur and taken some type of action.
Coffey v. Mushatt, 03-0232, p. 4 (La.App. 4 Cir. 10/1/03), 859 So. 2d 727, 730-31.
We find the doctrine inapplicable here. As the trial court found, her negligence in failing to react appropriately to the emergency situation she did observe, ie, the flashing patrol car lights, bumper to bumper traffic, and the officer directing traffic in the middle of the intersection, contributed to the injuries sustained by Officer Mulvihill. Under the evidence as presented at trial, her action in steering to the right, rather than simply stopping as soon as possible, appears to have been the cause of Officer Mulvihill falling under her vehicle.
Negligence
Appellant also asserts that the trial judge erred in finding her negligent. The trial court made the following statement with regard to Appellant's negligence:
However, this Court does agree in principle with Plaintiff's assertion that under Louisiana law, a driver is at fault when he/she fails to slow down sufficiently when he/she sees flashing lights from emergency vehicles, and thereby breaches his/her duty to an injured plaintiff, and that this breach of duty became a factor in the injuries sustained to plaintiff therein. This court specifically finds that Defendant HALEY's failure to observe Plaintiff and undertake precautions to avoid hitting him, after having seen the flashing lights from emergency vehicles at the scene of the accident, was a direct and proximate causation of Plaintiff's injuries.
Given the testimony at trial, we cannot say that the trial court's finding in this regard is manifestly erroneous.
Plaintiff's Negligence
Haley argues that Plaintiff should have been found comparatively at fault for the accident. Defendants had the burden of proving the comparative fault of Plaintiff. A review of the evidence convinces us that Defendants did not carry this burden. The testimony was that the accident occurred at about 8:00 p.m. Plaintiff was wearing dark clothing and carrying a flashlight equipped with an orange cone for signaling traffic. He was standing in the middle of an intersection and several police cars were parked on the shoulder of the road, with lights flashing. Appellant admits that she could see him signaling traffic. Plaintiff was not wearing reflective clothing. However, there was no testimony establishing that Plaintiff was not appropriately dressed or equipped for directing traffic, or establishing the appropriate conduct and attire for that activity.
"Comparative fault is an affirmative defense and the party asserting it bears the burden of proving, by a preponderance of the evidence, that the negligence of the plaintiff was a cause-in-fact of the injury." Corkern v. Smith, 06-1569 (La.App. 3 Cir. 6/6/07), 960 So. 2d 1152, 1156, writ denied, 07-1803 (La. 1/25/08), 973 So. 2d 754 (citing Trahan v. Savage Indus., Inc., 96-1239 (La.App. 3 Cir. 3/5/97), 692 So. 2d 490.) Defendants have not met their burden of proof.
Apportionment of fault
Appellant further argues that the trial court erred in failing to apportion fault to Martin.
In resolving this issue, we must give great deference to the allocation of fault as determined by the trier of fact. Cole v. State ex rel. Dept. of Transp. & Dev., 99-912 (La.App. 3 Cir. 12/22/99), 755 So. 2d 315, writ denied, 00-199 (La.4/7/00) 759 So. 2d 766. We are compelled to utilize the standards set forth in Watson v. State Farm Fire & Cas. Ins. Co., 469 So. 2d 967, 974 (La.1985):
(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.
Johnson v. State ex rel. DOTD, 06-898 (La.App. 3 Cir. 12/13/06), 946 So. 2d 682, 691, writ denied, 07-0510 (La. 4/27/07), 955 So. 2d 693.
The parties stipulated that: "Irwin Martin did not see Denis Mulvihill and struck him with the front and left side of the 1987 Buick Century." Martin's testimony confirmed this, and he offered no defense against a finding of negligence on his part. The trial court found that: "the most severe and majority of Plaintiff's injuries were, in fact, caused by the second impact with the HALEY vehicle." In light of the evidence adduced at trial, we find that the trial court erred in failing to apportion some percentage of fault to Martin.
The Louisiana Supreme Court in, Clement v. Frey, 95-1119 (La. 1/16/96), 666 So. 2d 607, 611, explained the way an appellate court should approach apportionment of fault where it finds that a trial court has abused its discretion in this regard.
Regarding the allocation of fault in this circumstance, we adopt the standard set forth in Coco v. Winston Industries, Inc., 341 So.2d at 335. Just like in the quantum area, there is for sure a large amount of uncertainty in the allocation of fault. Our Coco decision pointed out that "the ultimate determination by an appellate court as to whether a given judge or jury abused their `much discretion' as a matter of law is a judgment call." 341 So.2d at 335.
The Court in Coco held that "[o]nly after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court." 341 So.2d at 335. "It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence." Id.
. . .
. . . [W]e feel that by analogy the trier of fact is owed some deference in allocating fault, for the finding of percentages of fault pursuant to the comparative fault article, LA.CIV.CODE art. 2323, (FN6) is also a factual determination. Hill v. Lamulle, 506 So. 2d 690, 694 (La.App. 5th Cir.1987) (citing Varnado v. Continental Insurance Co., 446 So. 2d 1343 (La.App. 1st Cir.1984); Motton v. Travelers Insurance Co., 484 So. 2d 816 (La.App. 1st Cir.1986)). That there is in the Louisiana Civil Code regarding fault allocation no counterpart to the 1870 Civil Code article 1934's "great discretion" for the assessment of damages is no doubt explained, at least in part, by the fact that fault allocation was not made necessary in Louisiana until August 1, 1980, when by Act No. 431 of 1979 our legislature adopted a pure comparative fault system. "This allocation of shares of negligence, however, is not an easy task for the factfinder, and the Louisiana statute does not describe with particularity how it should be accomplished." Watson v. State Farm Fire and Casualty Insurance Co., 469 So. 2d 967, 971 (La.1985).
In any event, there is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage determinations. In both, the trier of fact, unlike the appellate court has had the benefit of witnessing the entire trial and of reviewing first hand all the evidence.
Accordingly, we will apply the standard enunciated above in reallocating fault. After the court of appeal finds a "clearly wrong" apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion.
Accordingly, since we find that the trial court erred in apportioning no fault to Martin where he was clearly at fault, we can raise the percentage of fault attributable to him only to the lowest point reasonably within the trial court's discretion.
We note that Martin's negligence began the chain of events which resulted in the injury to Plaintiff, and that but for being thrown into the oncoming lane of traffic by Martin's vehicle, no injury would have occurred. Therefore, we find that the lowest percentage of fault which could reasonably have been attributed to Martin is fifty percent.
Quantum of Damage
Although the quantum of damages has not been appealed, in light of our decision herein, we find it necessary to clarify our findings with regard to the trial court's award of damages. The parties to this matter agreed that Officer Mulvihill incurred medical expenses of over $48,000.00. The trial court awarded damages against Haley in the amount of $50,000.00. Given that Mulvihill had medical expenses of over $48,000.00 and in consideration of the evidence of record, we find that his damages far exceeded the award of $50,000.00. The trial court in its written reasons for judgment noted that it awarded "the sum of $50,000.00 to Plaintiff as general damages which are the direct result of the negligence and fault of Defendant, HALEY. . . ." In spite of the error with regard to the apportionment of fault, we find no error in the trial court's determination that the amount of damages attributable to Haley's fault is $50,000.00, and we affirm that determination.
CONCLUSION
For the foregoing reasons, the trial court's judgment is amended to assess fault for the accident fifty percent to Martin and fifty percent to Haley. The amount of damages attributable to Haley is $50,000.00. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed half to Haley and half to Plaintiff.
AFFIRMED AS AMENDED.
COOKS, J. CONCURS.
I concur with the result reached by the majority. I agree Martin bears some degree of fault, however, I do not believe Martin should be assessed with 50 % fault. Martin is at best, 10% at fault.
In our review of a trial court's apportionment of fault we must apply the manifest error rule. Arceneaux v. Domingue, 365 So. 2d 1330 (LA. 1978) and Guillory v. Insurance Company of North America, 95-1500 (La. App. 3 Cir. 4/3/96), 671 So. 2d 1112. Martin admits he was negligent and the facts establish he has some comparative fault. The trial court was manifestly erroneous in failing to apportion some degree of fault to Martin. However, considering the Supreme Court's decision in Campbell v. Department of Transp. & Dev., 94-1052 (La. 1995), 648 So. 2d 898, and several of this court's decisions post Campbell, I believe we are bound by Campbell and must apportion a larger percentage of fault to the driver whom the trial court found caused most of the injuries to plaintiff. The record supports the trial court's finding of fact that plaintiff's injuries were the result of being struck by Haley's automobile. The manifest error rule prevents us from a "de novo" reevaluation of the evidence concerning this factual determination. Analyzing the fault of the parties in causing the harm to this plaintiff, as we are directed to do by Campbell, "[e]xcept to the extent that the [first] driver's negligence set the accident in motion, [that] driver had no control over the resulting harm..." to plaintiff caused in this case by the second driver. Although the Supreme Court assessed Ledford (in Campbell) 25% fault, I believe the facts of this case establish a more appropriate apportionment of fault to Martin is 10%. In Caruthers v. Department of Transportation And Development, 97-1450 (La. App. 3 Cir. 4/15/98), 711 So. 2d 420 we noted:
Under our theory of negligence, the crucial consideration is whether the conduct in question is a cause-in-fact of the resulting harm or injuries. (Citing Campbell) It is irrelevant whether the conduct was the primary cause of the accident. Liability may be imposed upon a party, such as DOTD, provided its conduct contributed to causing the injuries sustained by the victim plaintiff. If the party's conduct indeed contributed to the plaintiff's harm, fault will be apportioned to that party according to the extent of the causal relation between the conduct and the damages claimed. (Emphasis added.)
Likewise in Brown v. Louisiana Indemnity Company, 96-1393 (La. App. 3 Cir. 4/23/97), 693 So. 2d 270, we relied on Campbell to apportion fault 25% to the driver who fell asleep at the wheel and 75% to DOTD for its negligent maintenance of the highway and failure to warn motorists of the substandard highway. Given the trial court's factual determination that plaintiff's injuries were the result of being struck by Haley's car, I believe the maximum percentage of fault which can be assessed against Martin reflective of the "extent of the causal relation between" Martin's conduct and the injuries to plaintiff, weighed against the "extent of the causal relation between" Haley's conduct and plaintiff's injuries, is no more than 10% fault to Martin.
The trial judge made no finding as to any amount of damages which may have been the result of Martin's negligence (the first accident) because such a finding was rendered moot by his decision that Martin was not at fault. Additionally, the judge was aware that Martin and his insurer had settled with plaintiff prior to trial and the only remaining defendant was Haley and her insurer. The trial court determined the amount of damages Haley (the second accident) was responsible for and our reapportionment of fault does not affect that determination. The $50,000.00 recommended by the trial judge was clearly fixed at that amount because Haley's policy coverage did not exceed this amount. I would not assess any costs of this appeal to plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567598/ | 10 So. 3d 1103 (2009)
REPUBLIC CREDIT CORPORATION I, Appellant,
v.
Robert M. UPSHAW and Elizabeth Upshaw, Appellees.
No. 4D08-1591.
District Court of Appeal of Florida, Fourth District.
March 25, 2009.
*1104 Hala Sandridge and Donald R. Kirk of Fowler White Boggs Banker P.A., Tampa, for appellant.
Robert M. Upshaw, Palm Beach Gardens, pro se.
STEVENSON, J.
Republic Credit Corporation I ("Republic") appeals a final judgment entered in favor of Robert and Elizabeth Upshaw wherein the trial court determined that the proceeds derived from the Upshaws' sale of their California home constituted tenancy by the entireties property not subject to attachment by a creditor holding a judgment against only Robert. Because California does not recognize tenancy by the entireties as a form of ownership, we reverse, concluding that the proceeds derived from the Upshaws' sale of their California home constitute an asset and remanding for a determination as to whether the Upshaws effected any fraudulent transfers.
Republic filed suit in the United States Court for the Southern District of Iowa against Robert Upshaw, seeking to recover damages for his default on three promissory notes. During the pendency of that litigation, Robert and his wife, Elizabeth, then California residents, sold their California home, gaining slightly over $400,000 in equity from the sale. Ultimately, the Iowa court granted summary judgment in favor of Republic. The Upshaws wired $350,000 to an attorney's trust account in Florida and deposited $63,304.22 into a newly-opened bank account in only Elizabeth's name, thereafter using $200,000 from the attorney's trust account as a down payment on the purchase of a house in Palm Beach Gardens, Florida. Subsequently, the Iowa court entered a final judgment in favor of Republic. The Upshaws incrementally funneled the remainder of the money in the attorney's trust account into the bank account in Elizabeth's name.
Republic domesticated its judgment against Robert in Florida and then filed a complaint against Robert and Elizabeth, seeking to set aside the monetary transfers as fraudulent. The trial court concluded that the character of the sales proceeds should be determined pursuant to Florida law, meaning that the Upshaws held the money derived from the sale of their California home as tenancy by the entireties property not subject to execution by a judgment creditor holding a judgment against a single spouse.
California does not recognize tenancy by the entireties as a form of ownership. Swan v. Walden, 156 Cal. 195, 103 P. 931, 932 (1909); Tischhauser v. Tischhauser, 142 Cal. App. 2d 252, 298 P.2d 551, 554 (1956). Thus, the proceeds from the sale of the Upshaws' California home could not retain entireties characteristics that it never had. Cf. Passalino v. Protective Group Sec., Inc., 886 So. 2d 295, 297 (Fla. 4th DCA 2004) ("The proceeds from the sale or rental of tenancy by the entireties property are also held as tenancy by the entireties and are owned in total by both the husband and the wife.").
Therefore, we conclude that the home sale proceeds are assets subject to attachment by a judgment creditor. See § 726.102(2)(c), Fla. Stat. (2005) (defining *1105 an asset as the property of a debtor, excluding an interest in property held as tenants by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant). Because the trial court deemed the California sales proceeds tenancy by the entireties property, it never made findings as to whether any fraudulent transfer occurred.
Accordingly, we reverse and remand for a determination as to whether the Upshaws fraudulently transferred the proceeds from the sale of their California home pursuant to the Uniform Fraudulent Transfer Act. We note that "[t]he transfer of nonexempt assets into an exempt homestead with the intent to hinder, delay, or defraud creditors is not one of the three exceptions to the homestead exemption provided in article X, section 4." Havoco of Am., Ltd. v. Hill, 790 So. 2d 1018, 1028 (Fla.2001). On remand, it shall be in the discretion of the trial court whether to hold additional evidentiary proceedings.
Reversed and Remanded.
TAYLOR and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567624/ | 10 So. 3d 638 (2009)
ARBYUMRNI
v.
STATE.
No. 2D08-6086.
District Court of Appeal of Florida, Second District.
May 29, 2009.
Decision without published opinion Petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567589/ | 10 So. 3d 1136 (2009)
Euriell LAIDLER, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-5265.
District Court of Appeal of Florida, First District.
May 22, 2009.
*1137 Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
*1138 VAN NORTWICK, J.
Euriell Laidler appeals his convictions for two counts of armed robbery with a firearm and one count of aggravated assault with a firearm, contending that the trial court erred in denying his motion for a continuance and in failing to conduct an adequate Richardson[1] hearing upon being advised of a discovery violation by the State. We agree and, accordingly, reverse and remand for a new trial.
One week before trial, the assistant state attorney advised defense counsel of the name of a previously undisclosed witness, Darryl Ruth, about whom she had just learned. A deposition was scheduled the Friday before appellant's trial was to begin, but Ruth could not be located. The State made Ruth available at 3:30 p.m. on Monday, October 1, 2007, after jury selection and on the eve of trial. Ruth gave testimony that the appellant had asked him to participate in the robbery, but he declined; that, after the subject robbery, appellant called and told him about committing the robbery; and that appellant told him he was wiring him some money and asked him to pay a gambling debt for appellant. As stated by the assistant state attorney in her opening statement, appellant's alibi was destroyed by Ruth's testimony.
Before the trial began, defense counsel, despite appellant's disagreement, asked for a continuance. Defense counsel expressed the desire to interview people who could confirm or deny Ruth's testimony in the hopes that he might be able to impeach Ruth's credibility. Further, counsel stated that he wanted to depose the investigating officer to learn why Ruth's name had never appeared in any police report. Citing the appellant's wishes, the trial court denied the motion for continuance, commenting that the State would be precluded from introducing any hearsay statements.
At the subsequent trial, the witnesses to the bank robbery testified that they were able to identify appellant from a photographic lineup, and they identified him in court. After Ruth's testimony, appellant did not attempt to introduce any alibi evidence.
In closing argument, defense counsel pointed out the difference between the photographs introduced into evidence and appellant's characteristics. Acknowledging the victim's identifications, counsel argued that the victims only had a short time to look at the robber and were under stress. Further, counsel argued that their identifications may have been influenced by viewing the video of the appellant when he was in the bank on May 1, two days before the robbery on May 3, 2006. However, appellant contends he could not defend against Ruth's testimony, because he was not given an opportunity to investigate or prepare a defense to that testimony.
"A denial of a motion for continuance will be reversed when the record demonstrates ... that adequate preparation of a defense was placed at risk by virtue of the denial." Smith v. State, 525 So. 2d 477, 480 (Fla. 1st DCA 1988). The trial court appears to have been persuaded not to grant the requested continuance because the defendant opposed the motion. However, moving for a continuance is a decision to be made by the defendant's attorney, and, if appropriate, the motion should be granted, even if the defendant opposes it. State v. Abrams, 350 So. 2d 1104, 1105 (Fla. 4th DCA 1977) ("The acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client's wishes.").
*1139 Defense counsel was not afforded an adequate opportunity to investigate and prepare a defense to the testimony of Ruth. Ruth's testimony was material because it completely eliminated an alibi defense and because Ruth testified that appellant actually discussed the robbery with him before and after it occurred. Accordingly, this case must be reversed and a new trial granted. Smith v. State, 525 So.2d at 480; see also Griffin v. State, 598 So. 2d 254, 256 (Fla. 1st DCA 1992) (holding that State's late disclosure of undercover police officer who witnessed narcotics transaction violated appellant's due process rights and required continuance); Lightsey v. State, 364 So. 2d 72 (Fla. 2d DCA 1978) (holding that trial court erred in denying continuance where due to the State's late response to discovery, the defendant was unable to depose certain witnesses and complete his investigation prior to trial).
Although the assistant state attorney did not learn about Ruth until one week before the trial and immediately advised defense counsel about the witness, case law is clear that the prosecutor is charged with knowledge of the evidence in the possession of the police. Rojas v. State, 904 So. 2d 598, 600 (Fla. 5th DCA 2005); Smith v. State, 882 So. 2d 1050, 1053 (Fla. 4th DCA 2004) ("case law makes clear that the knowledge of law enforcement officers is imputed to the prosecutors for purposes of [Fla. R.Crim. P. 3.220(b)(1)(A)]"); Griffin v. State, 598 So.2d at 256. While the testimony is not undisputed, it is clear that the police knew about Ruth and knew that he had information that "may be relevant" to the offense charged, Florida Rule of Criminal Procedure 3.220(b)(1)(A),[2] and because that knowledge is imputed to the prosecutor, failure to disclose Ruth's name to the defense constituted a discovery violation. Id.
The failure to disclose was made known to the trial court, and, although counsel did not use "magic words" to request a Richardson hearing, the trial court was required to conduct a Richardson hearing nonetheless. Smith v. State, 7 So. 3d 473, 506 (Fla.2009) ("There are no exact `magic words' or phrases which must be used by the defense in order to necessitate the inquiry; only the fact that a discovery request has not been met."); State v. Evans, 770 So. 2d 1174, 1182 (Fla.2000). A Richardson hearing requires inquiry into whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial affect on the aggrieved party's trial preparation. Id. at 1183. Failure to conduct a Richardson hearing used to be per se reversible error, but the Supreme Court has recognized that "there are cases ... where a reviewing court can say beyond a reasonable doubt that the defense was not prejudiced," State v. Schopp, 653 So. 2d 1016, 1020 (Fla.1995).
Before harmless error will be found this court must inquire whether the violation "materially hindered the defendant's trial preparation or strategy." Scipio v. State, 928 So. 2d 1138, 1150 (Fla. 2006) (quoting Schopp, 653 So.2d at 1020). The material question is whether the defense was procedurally prejudiced. Id. "[O]nly if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless." Schopp, 653 So.2d at 1021. This standard has not been met in *1140 this case, and the failure to conduct a Richardson hearing was not harmless error.
REVERSED and REMANDED for a new trial.
HAWKES, C.J., and BROWNING, J., concur.
NOTES
[1] Richardson v. State, 246 So. 2d 771 (Fla. 1971).
[2] The State is obligated to disclose the names and addresses of all persons "known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto ..." Fla. R.Crim. P. 3.220(b)(1)(A). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567587/ | 10 So. 3d 224 (2009)
STATE of Louisiana
v.
Rachel SHIRLEY.
No. 2008-KK-2106.
Supreme Court of Louisiana.
May 5, 2009.
*225 James D. Caldwell, Attorney General, Richard J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Assistant District Attorney, for applicant.
Delatte, Edwards & Marcantel, Glynn Joseph Delatte, Jr., D. Carson Marcantel, Baton Rouge, for respondent.
KNOLL, Justice.
At issue in this vehicular homicide case is whether the trial court correctly granted the defendant's motion to suppress statements she made at the scene of a fatal, one-car accident in which the passenger was killed after the defendant lost control of her car and flipped it upside down. *226 This brings into question whether the trial court properly suppressed the results of a blood-alcohol test taken under the provisions of La.Rev.Stat. § 32:662 as presumptive evidence to establish the defendant's intoxication. For reasons that follow, we reverse the trial court's ruling to the extent it suppressed defendant's statements made at the scene of the vehicular accident. In all other respects, we deny the State's writ application.
FACTS AND PROCEDURAL HISTORY
On July 8, 2006,[1] Rachel Shirley (hereafter "defendant") ran a stop sign at the intersection of Louisiana Highways 327 and 99 land flipped her vehicle in a one-car accident. Defendant's passenger died as a result of injuries she sustained in the crash.
According to the testimony of Kevin Ambeau, Sr., the Chief of Police for the City of St. Gabriel,[2] at the hearing on defendant's motion to suppress, Officer Cody Casto, a policeman with the St. Gabriel police department, was initially dispatched to the accident scene. Utilizing Officer Casto's accident report as a basis for his testimony, Chief Ambeau stated the defendant informed Officer Casto she had been drinking; specifically, she told Officer Casto she drank two Smirnoffs and two Budlight beers. Later, when Chief Ambeau learned at Our Lady of the Lake Regional Medical Center that defendant's passenger die d, he directed Officer Casto to have hospital personnel obtain blood samples from defendant. After receiving the two vials allegedly containing the defendant's blood sample, Officer Casto stored both vials in a refrigerator at the St. Gabriel Police headquarters. Subsequently, Chief Ambeau delivered the blood samples to the Louisiana State Police Crime Laboratory for scientific analysis.
The only other person to testify at the hearing on the defendant's motion to suppress was Kesha Malveaux, a forensic scientist employed at the toxicology section of the Louisiana State Police Crime Laboratory. Using a gas chromatograph, Malveaux tested the two samples of blood that Chief Ambeau delivered. She testified that the blood-alcohol result for both samples was a 0.03 grams percent.[3]
On August 30, 2007, a grand jury for the Parish of Iberville indicted defendant for vehicular homicide where the operator is under the influence of alcoholic beverages "as determined by chemical tests administered under the provisions of R.S. 32:662", a violation of La.Rev.Stat. § 14:32.1(A)(1).[4] After entering a plea of not guilty and *227 asking for a jury trial, the defendant filed a motion to suppress her oral statements made after the accident. Additionally, the defendant sought to suppress the blood-alcohol test results for failure to comply with the requirements for administering the blood-alcohol test set out in La.Rev. Stat. § 32:661-669 and Title 55 of the Louisiana Administrative Code.
After hearing the testimony of Chief Ambeau and Malveaux, the trial court granted the defendant's motion to suppress. The trial court suppressed the defendant's statements, noting that the State failed to produce Officer Casto to testify about the statements defendant made at the accident scene and instead only relied upon Chief Ambeau's hearsay testimony. In further explanation of its decision, the trial court did not consider Chief Ambeau's hearsay testimony and found that although the defendant was not immediately under arrest after the accident, she was detained and should have been advised of her Miranda rights. With regard to the test results from the forensic examination of the defendant's blood samples, the trial court found the State failed to produce a witness from the hospital to show that the defendant's blood was drawn by a qualified person in conformity with La.Rev.Stat. § 32:664(A) (1999) and the procedures approved and promulgated by the Louisiana Department of Public Safety and Corrections. Therefore, it also suppressed the results of the blood-alcohol tests.
The State filed a writ application with the Court of Appeal, First Circuit, seeking reversal of the trial court's rulings on the defendant's motion to suppress. A majority of the appellate panel affirmed the trial court's rulings, finding no abuse of discretion. One appellate court judge agreed on the issue of the suppression of the blood-alcohol test results, but dissented on the suppression of the defendant's oral statements, finding the defendant was neither under arrest nor detained at the time the statements were made.
We granted the State's writ application to address the trial court's disposition of the defendant's motion to suppress both her oral statements and the blood-alcohol test results. State v. Shirley, 08-2106 (La.11/26/08), 997 So. 2d 540.
Defendant's Oral Statement
The State contends the defendant's statement that she had been drinking alcohol should not have been suppressed. The State avers the trial court erred when it ruled Chief Ambeau's testimony was hearsay because well established jurisprudence has recognized that hearsay testimony is admissible in a suppression hearing. Moreover, relying on State v. Levy, 292 So. 2d 220 (La.1974), the State asserts Miranda warnings were not required at this point because the testimony of Chief Ambeau shows defendant was neither under arrest nor detained when she made her statement about drinking.
On the other hand, the defendant asserts the trial court correctly applied the rules of evidence in this hearing on defendant's motion to suppress. Focusing on La.Code Evid. art. 1101,[5] the defendant *228 contends that formal evidentiary rules apply in hearings on motions to suppress evidence. Thus, she contends the trial court properly refused to consider Chief Ambeau's hearsay testimony. For reasons which follow, we find the trial court erred when it excluded Chief Ambeau's testimony.
After reviewing the provisions of La.Code Evid. art. 104 and 1101, it is evident confusion may exist on the question of whether hearsay evidence may be admissible at a hearing on a motion to suppress. Such confusion is exacerbated by one of the Comments to La.Code Evid. art. 1101 which states that "Subparagraph (B)(8) coupled with Paragraph A continues in effect the requirement that formal evidentiary rules generally apply in hearings on motions to suppress evidence." Notwithstanding the facial confusion and the text of the Comment, we find resolution of the question in La.Code Evid. art. 1101(C)(1) which explicitly states the provisions of the Code of Evidence are not applicable to "[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under [La.Code Evid.] Article 104." As stated in Article 104, "[preliminary questions concerning ... the admissibility of evidence shall be determined by the court ... In making its determination it is not bound by the rules of evidence except those with respect to privileges." Accordingly, we find the exclusionary clause of La.Code Evid. art. 1101(B)(8), when considered in pari materiae with La.Code Evid. art. 104, may be read to generally exempt hearings on motions to suppress evidence from the rules of evidence except with respect to privileges. Thus, La.Code Evid. art. 1101(B) may be read harmoniously with the provisions of La.Code Evid. art. 104(A).
Furthermore, even though this Court has never elaborated on the interplay of Articles 104 and 1101 of the Code of Evidence, our research shows we have recognized hearsay rules do not apply in hearings on motions to suppress evidence. State v. Castleberry, 99-1388 (La.4/13/99), 758 So. 2d 749;[6]see also United States v. *229 Matlock, 415 U.S. 164, 172-75, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) (holding that "the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.... There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel.")
After reviewing the jurisprudence and the provisions of La.Code Evid. arts. 104 and 1101, we find the trial court erred when it failed to consider Chief Ambeau's testimony which was drawn, at least in part, from Officer Casto's written accident report. When the trial court considered whether the defendant was under arrest or detained when she made her statement to Officer Casto and whether her statement that she consumed alcoholic beverages was admissible, it should have taken into consideration Chief Ambeau's testimony, including the portion drawn from Officer Casto's police report, when it ruled on the defendant's motion to suppress. Having addressed this preliminary evidentiary matter, we now turn our attention to the question of whether Miranda warnings were necessary as a prerequisite to the admissibility of the defendant's statement.
The obligation to provide Miranda warnings attaches only when a person is questioned by law enforcement after he has been taken "into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Payne, XXXX-XXXX (La.12/4/02), 833 So. 2d 927, 934. Custody is decided by two distinct inquiries: an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest; and, second, an evaluation of how a reasonable person in the position of the interviewee would gauge the breadth of his freedom of action. Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994), (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L.Ed.2d 1275(1983)(per curiam), Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L.Ed.2d 714(1977)(per curiam)). See Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995).
As such, Miranda warnings are not required when officers conduct preliminary, non-custodial, on-the-scene questioning to determine whether a crime has been committed, unless the accused is subjected to arrest or a significant restraint short of formal arrest. State v. Davis, 448 So. 2d 645, 651-652 (La.1984); State v. Mitchell, 437 So. 2d 264, 266 (La.1983); State v. Thompson, 399 So. 2d 1161, 1165-1167 (La. 1981), dissent at 400 So. 2d 1080; State v. Menne, 380 So. 2d 14, 17 (La.1980), cert, denied sub nom. Louisiana v. Menne, 449 U.S. 833, 101 S. Ct. 104, 66 L.Ed.2d 39(1980); State v. Hodges, 349 So. 2d 250, 255-257 (La.1977), cert. denied, 434 U.S. 1074, 98 S. Ct. 1262, 55 L. Ed. 2d 779 (1978); State v. Brown, 340 So. 2d 1306, 1308 (La. 1976); State v. Watkins, 526 So. 2d 357, 359-360 (La.App. 4 Cir.1988). Thus, an individual's responses to on-the-scene and non-custodial questioning, particularly when carried out in public, are admissible *230 without Miranda warnings. See State v. Davis, supra (Question, "Who shot the deer?" directed to a group of hunters did not point the finger of suspicion at any one person, even though wildlife agent knew that adult female deer had been taken and that citizens were holding the culprits, and therefore did not require Miranda warnings); State v. Thompson, supra (question of "how he came by the blood spots on his shirt," asked by officer of man in motel lobby identified as perpetrator of assault and who agreed to talk with the officer, was to learn if crime had occurred and therefore occurred in a pre-custodial setting which did not require Miranda warnings); State v. Mitchell, supra (question asked by an Arkansas deputy after handcuffing a drunken Monroe driver for traffic offenses and noticing dried blood on his neck, "What happened?" did not amount to custodial interrogation for Miranda purposes; defendant's reply, "My wife shot me," admissible without Miranda warnings under time pressure of finding injured wife).
Similarly, although a motorist stopped for a traffic violation or an individual detained in a Terry stop based on reasonable suspicion has had his freedom of movement curtailed in a significant way, until an arrest actually occurs, these Fourth Amendment seizures do not constitute custody for Miranda purposes. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)("The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda.").
In the present case, Chief Ambeau had available the content of Officer Casto's report which described the circumstances surrounding the preliminary stages of the investigation into the accident and subsequent death of the defendant's passenger. In particular, Chief Ambeau could refer to the report which showed the defendant stated she did not see a stop sign when she rounded the curve of the road and came upon the intersection, and that she had "two Smirnoffs and two Budlights." Moreover, Chief Ambeau, testified, in part on the basis of his personal observations on the scene, that defendant was not placed in handcuffs before she was taken by ambulance to the hospital, and also on the basis of his review of the written report of Officer Casto, that defendant had not been arrested for driving while intoxicated before she was transported to the hospital.[7] Although it cannot be gainsaid that the State did not fully develop the facts related to the what transpired after the defendant's accident, the record does not support the trial court's finding that although Officer Casto may not have placed the defendant under arrest, "certainly [the defendant] was being detained... and should have been advised of her rights...." Trial Tr. at 116. Under the facts established in the record, even as sketchily developed at the hearing on the motion to suppress, Miranda warnings were not required. Therefore, the trial court erred when it suppressed the defendant's statements at the accident scene.
For these reasons, we reverse the trial court's ruling to the extent it ordered suppressed the defendant's statements made *231 at the scene of the vehicular accident to Officer Cody Casto.
Blood-Alcohol Test Results: Use as Presumptive Evidence of Intoxication
Contending this Court has never addressed the issue, the State argues that the defendant had no basis for moving to suppress the results of the blood-alcohol test. Drawing on the language of La.Code Crim. Proc. art. 703(A), which provides that "[a] defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained", the State contends the defendant neither alleged in her motion to suppress nor showed at the hearing on that motion any constitutional violation occurred in the taking of the blood samples.
In stark contrast to the State's contention, the defendant avers this Court resolved this issue in State v. Tanner, 457 So. 2d 1172 (La.1984). She points out that in Tanner this Court held a motion to suppress evidence under La.Crim.Code art. 703(A) provides the appropriate procedural vehicle for challenging the admissibility of blood-alcohol test results, not on the grounds of any asserted constitutional violation, but on grounds the testing did not conform to the exacting standards established by the Department of Public Safety for conducting such tests when the results are used as a basis for applying the presumptive levels of intoxication set out in La.Rev.Stat. § 32:662. Tanner, 457 So.2d at 1174.
In Tanner, Justice Marcus writing for the majority, stated:
Generally, questions of admissibility, relevance and weight of evidence are properly resolved at trial on the merit s, not by pretrial motions. See State v. Garnier, 261 La. 802, 261 So. 2d 221 (1972). However, the evidence in question in this case, the results of a chemical test, can give rise to a presumption that the person was under the influence of alcoholic beverages. La.R.S. 32:662. This rebuttable presumption of intoxication can be used to satisfy the "under the influence of alcohol" element of the state's case in a driving while intoxicated prosecution, La.R.S. 14:98. Also, in negligent homicide prosecutions, the presumption can be used to establish the fact of intoxication from which the factfinder can determine criminal negligence. State v. Green, 418 So. 2d 609 (La.1982). Consequently, it has been held that the wrongful introduction of a chemical analysis test result, which by law presumes a defendant to be intoxicated, is so prejudicial to the defendant that a resulting conviction cannot stand, even if there is other evidence of intoxication. State v. Morrison, 392 So. 2d 1037 (La.1980); State v. Goetz, 374 So. 2d 1219 (La.1979); State v. Graham, 360 So. 2d 853 (La.1978). In view of the vital role that the legal presumption plays in determining guilt and the highly prejudicial nature of chemical test results if wrongfully introduced, it would serve the orderly administration of justice and further insure the defendant a fair trial if the admissibility of the test results could be determined in a pretrial proceeding.
In the present case, defendant sought to raise objection to the admissibility of the chemical test results by way of a motion to suppress. La.Code Crim. P. art. 703 provides that a defendant adversely affected may move to suppress any evidence from use at trial on the merits on the ground that it was unconstitutionally obtained. However, the evidence in the present case was constitutionally seized. Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Therefore, *232 a literal reading of art. 703 would seem to exclude the use of a motion to suppress to test admissibility. La.Code Crim. P. art. 3 provides that "[w]here no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions." Pursuant to this authority, this court has judicially extended the function of the motion to suppress to testimony alleged to be tainted by improper lineup procedures. State v. Wilkerson, 261 La. 342, 259 So. 2d 871 (1972). For the reasons set forth above, we believe that the use of the motion to suppress to question the admissibility of chemical test results is "consistent with the spirit of the provisions of this Code" and should be permitted in keeping with the procedural guidelines set forth in art. 703(D). The burden of proving the admissibility of the chemical test results would be on the state as in the case of a confession or evidence seized without a warrant. Thus, pursuant to our authority under art. 3 to establish procedural guidelines in the absence of specific legislative procedural rules, we hold that a motion to suppress is available to question the admissibility of chemical test results that can result in the legal presumption of intoxication.
Later, Justice Marcus further elaborated:
When the legislature authorized the chemical analysis of a motorist's blood and created a statutory presumption of intoxication in the event that his blood contained the requisite percent of alcohol, it conditioned the validity of the chemical test upon its having been performed according to methods approved by the Department of Public Safety. La.R.S. 32:663. This court has repeatedly recognized the importance of establishing safeguards to guarantee the accuracy of chemical tests. In a criminal prosecution, before the state may avail itself of the statutory presumption of defendant's intoxication, arising from chemical analysis of his blood, without violation of his constitutional due process guarantee of a fair trial, it must show that the state has promulgated detailed procedures which will insure the integrity and reliability of the chemical test, including provisions for repair, maintenance, inspection, cleaning, certification, and chemical accuracy. It must also show that the state has strictly complied with the promulgated procedures. State v. Krause, 405 So. 2d 832 (La.1981); State v. Morrison, [392 So. 2d 1037 (La.1980)]; State v. Goetz, [374 So. 2d 1219 (La.1979)]; State v. Graham, [360 So. 2d 853 (La.1978)]; State v. Jones, 316 So. 2d 100 (La.1975). Since it is permissible for the state to use the statutory presumption of intoxication in negligent homicide prosecutions, the same rigid admissibility requirements that exist in DWI cases must be satisfied in the instant case. See State v. Green, [418 So. 2d 609 (La.1982)].
Tanner, 457 So.2d at 1175.
Our unanimous decision in Tanner has remained unassailed for 25 years, and its reasoning and holding remain dispositive of the issue presented today. As required in Tanner, before the State may avail itself of the statutory presumption of defendant's intoxication, arising from chemical analysis of his blood, it was incumbent upon the State to show strict compliance with the detailed procedures adopted to secure the efficacy and reliability of the chemical test. One such requirement is that when a person submits to a blood test at the request of a law enforcement officer, "only a physician, registered nurse, qualified technician, or chemist may *233 withdraw blood for the purpose of determining the alcoholic content or presence of any abuse or illegal controlled dangerous substances therein." La.Rev.Stat. § 32:664(A) (1999);[8]see La. Admin. Code, Title 55: Part I, § 565(A) ("Each `chemist' and each `qualified technician,' as these terms are utilized in R.S. 32:664, must be certified by an accredited licensing agency as a certified phlebotomist in order to remove blood samples for purposes of determining alcoholic content.").
Our review of the record shows the State provided no testimony that a qualified person drew the defendant's blood sample. Although Chief Ambeau testified that one of the nurses at the hospital gave the blood samples to Officer Casto, he presented no testimony about the identity of the person who drew the defendant's blood or whether the person who drew the blood sample was qualified to perform that task. Likewise, even though the forensic scientist who tested the blood samples stated she received the sample in an approved blood collection kit, she also knew nothing about the person who drew defendant's blood or the qualifications of the person who drew the blood from the defendant.
Considering the foregoing, we find, as did the trial court, the State failed to carry its burden of demonstrating strict compliance with those regulations in the taking of the blood sample from the defendant. Insofar as the defendant's test results were sought to be used by the State as presumptive evidence of her guilt, we find them inadmissible. Accordingly, to the extent the State sought to rely upon the results of the blood-alcohol test as presumptive evidence of the defendant's intoxication, we affirm the trial court's decision to suppress those results to that extent.
Notwithstanding the unavailability of the blood-alcohol test results as presumptive evidence of intoxication, assuming the results are otherwise reliable, the State may use blood-alcohol test results obtained without strict compliance with the presumptions in La.Rev.Stat. § 32:662, i.e., as circumstantial evidence that would allow the fact-finder to draw an inference of the defendant's intoxication. State v. Barker, 629 So. 2d 1119, 1120 (La.1993); State v. Honeyman, 560 So. 2d 825, 829 (La.1990); State v. McElroy, 553 So. 2d 456 (La.1989). Compare La.Rev.Stat. § 14:32.1(A)(1) (providing that vehicular homicide may be proved through the use of presumptive evidence of intoxication as detailed in La. Rev.Stat. § 32:662) to La.Rev.Stat. § 14:32.1(A)(4) (simply providing that vehicular homicide may be proved where the operator is under the influence of alcoholic beverages). The use of the blood-alcohol test results remains as viable inferential evidence of the defendant's intoxication. State v. Barker, 629 So.2d at 1120; State v. *234 Honeyman, 560 So.2d at 829; State v. McElroy, 553 So.2d at 456.
DECREE
For the foregoing reasons, the State's writ application is granted in part and denied in part. The trial court's ruling is reversed to the extent that it ordered suppressed the defendant's statements made at the scene of the vehicular accident to Officer Cody Casto. In all other respects, the State's writ application is denied. This case is remanded to the trial court for further proceedings in conformity with the views expressed in this opinion.
AFFIRMED IN PART; REVERSED IN PART; CASE REMANDED TO THE TRIAL COURT.
NOTES
[1] There is a discrepancy in the record regarding the date of the accident. The indictment reads that the accident occurred on or about July 8, 2006. In his testimony at the suppression hearing, Kevin Ambeau, Sr., the Chief of Police for the City of St. Gabriel, stated the accident was on or about July 10, 2006.
[2] Officer Casto did not testify at the suppression hearing. His absence is not explained in either the record or the briefs filed with this Court.
[3] The test result, 0.03, falls within the range of presumptive sobriety for adults. La.Rev. Stat. § 32:662(A)(1)(a). Considering the defendant's action in seeking to suppress the test results, we presume the defendant was below 21 years of age when the accident occurred. La.Rev.Stat. § 32:662(A)(1)(d) establishes that persons under the age of 21 years with a blood-alcohol of 0.02 or more are presumed under the influence of alcohol.
[4] Here, too, there seemed to be some confusion at the hearing on the defendant's motion to suppress whether defendant was also charged with negligent homicide. Prior to taking evidence on the motion to suppress, the State clarified the question and unequivocally stated the defendant was not facing a negligent homicide charge.
[5] La.Code Evid. art. 1101 provides in pertinent part:
(1) Except as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of questions of fact in all contradictory judicial proceedings....
(2) Furthermore, except as otherwise provided by legislation, Chapter 5 of this Code with respect to testimonial privileges applies to all stages of all actions, cases, and proceedings where there is power to subpoena witnesses, including administrative, juvenile, legislative, military courts-martial, grand jury, arbitration, medical review panel, and judicial proceedings, and the proceedings enumerated in Paragraphs B and C of this Article.
B. Limited applicability. Except as otherwise provided by Article 1101(A)(2) and other legislation, in the following proceedings, the principles underlying this Code shall serve as guides to the admissibility of evidence. The specific exclusionary rules and other provisions, however, shall be applied only to the extent that they tend to promote the purposes of the proceeding.....
(8) Hearings on motions and other summary proceedings involving questions of fact not dispositive of or central to the disposition of the case on the merit s, or to the dismissal of the case, excluding in criminal cases hearings on motions to suppress evidence and hearings to determine mental capacity to proceed.
C. Rules inapplicable. Except as otherwise provided by Article 1101(A)(2) and other legislation, the provisions of this Code shall not apply to the following:
(1) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Article 104.
La.Code Evid. art. 104, referenced in La. Code Evid. art. 1101(C)(1), provides in pertinent part:
(A) Preliminary questions concerning ... the admissibility of evidence shall be determined by the court ... In making its determination it is not bound by the rules of evidence except those with respect to privileges.
[6] The defendant refers to State v. Hightower, 272 So. 2d 363 (La.1973) and State v. Smith, 392 So. 2d 454 (La. 1980), two other cases that pre-date our Code of Evidence which also hold that hearsay is admissible in a suppression hearing. Defendant attempts to distinguish these two cases by suggesting that with the adoption of the Louisiana Code of Evidence the Legislature changed the law, making these cases no longer relevant. For reasons explained more fully supra, we find the Louisiana Code of Evidence did not result in rendering these prior decisions irrelevant.
[7] Although albeit without reference to any specific date, Chief Ambeau also testified that "[w]e had a warrant signed. Her dad brought her in, and I Mirandized her, brought her to jail, booked her in jail." Trial Tr. at 44. Accordingly, considering the fact that the results of the blood test were not available for a few days after the accident, it appears the defendant was released from the hospital after giving her blood sample, and then she later surrendered to the police on some unspecified date.
[8] Subsequent to the accident and initiation of prosecution in the present case, the Legislature amended La.Rev.Stat. § 32:664.2008 La. Acts No. 492, § 1(eff. June 25, 2008) and No. 536, § 1 (eff. June 30, 2008). It now provides, in pertinent part:
Chemical analyses of the person's blood, urine, breath, or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved and promulgated by the Department of Public Safety and Corrections and performed by an individual possessing a valid permit issued by said department for the purposes set forth in this Part.
The Legislature further added paragraph (C) which now provides:
Issuance of a permit to such a certified individual or laboratory makes all laboratory forensic test results conducted on a person's blood, urine, or other bodily substance by such individual or laboratory valid under the provisions of this Part, and admissible and competent evidence of intoxication in any court of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1735616/ | 727 N.W.2d 735 (2007)
15 Neb. Ct. App. 390
Richard C. JURA, Special Administrator of the Estate of Amanda C. Jura, deceased, Appellant,
v.
CITY OF OMAHA, a municipal corporation, Appellee.
No. A-05-165.
Court of Appeals of Nebraska.
February 27, 2007.
*737 William J. Pfeffer, of Pfeffer Law Offices, Omaha, for appellant.
Thomas O. Mumgaard, Deputy Omaha City Attorney, for appellee.
IRWIN and SIEVERS, Judges, and HANNON, Judge, Retired.
*736 SIEVERS, Judge.
Richard C. Jura (Jura), as special administrator of the estate of Amanda C. Jura, appeals from the decision of the district court for Douglas County which dismissed his wrongful death claim against the City of Omaha (the City). This appeal involves a police pursuit that resulted in a traffic accident that killed two passengers. The issue is whether one of the passengers, Amanda C. Jura (Amanda), was an "innocent third party," thus entitling her estate to recover under Neb.Rev.Stat. § 13-911 (Reissue 1997). We affirm the trial court's finding that Amanda was not an innocent third party.
FACTUAL BACKGROUND
At approximately 4 a.m. on December 8, 2002, in Omaha, Nebraska, Amanda was a back seat passenger in a stolen Lincoln Town Car (Lincoln) driven by Jacob Witt (Witt had the car for approximately 1 week prior to December 8), although it does not appear that Amanda knew the Lincoln was stolen. Also in the Lincoln were Tiffany Bruce, in the front passenger seat, and Robin Abraham, also in the back seat. Amanda, Witt, Bruce, and Abraham left a party at a private residence and took the Lincoln to "get more dope." Amanda and Abraham were introduced to Witt approximately a half hour before leaving with him in the Lincoln. While in the Lincoln, they drove past a police cruiser driven by Omaha police officer Thomas Deignan. Officer Deignan began to follow the Lincoln, but he did not turn on the cruiser's lights or sirens. Officer Deignan admitted that no traffic violations were committed, but he thought it was strange that young people would be out in an expensive car at 4 o'clock in the morning. Officer Deignan called the police dispatcher to check the Lincoln's license plates, and the dispatcher informed Officer Deignan that the Lincoln was reported stolen. The Lincoln "started to take off," and Officer Deignan declared "pursuit" and turned on the cruiser's lights and sirens. Officer Deignan also radioed for other officers to help in the pursuit. During the pursuit, the Lincoln missed a curve, went over an embankment, and crashed into a tree. Amanda and Abraham died as a result of their injuries. Additional facts will be set forth as necessary in our analysis.
PROCEDURAL BACKGROUND
Jura filed a complaint on August 14, 2003. The parties stipulated that Jura satisfied the requirements of the Political Subdivisions Tort Claims Act. Jura's complaint alleged that Amanda was a passenger in the Lincoln driven by Witt; that Witt was attempting to evade vehicular pursuit by one of the City's law enforcement officers; that as a result of Witt's attempt to avoid vehicular pursuit, he lost control of the Lincoln and struck a tree, causing Amanda personal injuries and ultimately her death and resulting in both *738 special and general damages. The complaint alleges that the City was liable under § 13-911, the strict liability statute for injuries or death to innocent third parties caused by police motor vehicle pursuits.
The City's answer denied that Amanda was an innocent third party under § 13-911. The City alleged contributory negligence and assumption of the risk as affirmative defensesmatters we need not discuss because the case is determined by Amanda's status.
The district court granted the City's motion to bifurcate the issues of liability and damages. A trial was held on October 13 and 19, 2004, regarding the liability issue. At such trial, Jura's case was consolidated with cases brought by or on behalf of the other two passengers. Abraham was found not to be an innocent third party by the trial court, a decision we have previously affirmed. See Reed v. City of Omaha, 15 Neb.App. 234, 724 N.W.2d 834 (2006).
In an order filed January 19, 2005, the trial court found that Amanda was not an "`innocent third part[y]' within the contemplation of . . . § 13-911(1)." The trial court found that on the evening of December 7, 2004, Amanda and Abraham appeared at Bruce's house, where Witt was present; that the four individuals smoked methamphetamine and marijuana and collectively decided that they were going out to buy more drugs; that they left Bruce's house with Witt driving the stolen Lincoln; that Officer Deignan ran a check on the Lincoln's license plates and found there were no warrants, but that the Lincoln was stolen; that Witt started to "`take off'" and Officer Deignan began a pursuit; and that the high speed pursuit led to its terminus in a park in Omaha.
The trial court also found that Witt gave inconsistent accounts of the chase. Witt's first statement (and a letter he wrote to Bruce) made no mention of the passengers' requesting him to stop, but, rather, Witt said that someone tried to give him directions not to hit a curb. Witt further stated that the passengers made comments regarding the license plate check and outstanding warrants. Witt told investigators that Abraham said: "[H]urry up and get away from `em `cause I got a warrant, I got a warrant in Sarpy County, and I got a warrant somewhere else." Witt's later testimony, as well as Bruce's testimony, was that after the police started the pursuit, the passengers all sought to dissuade Witt from fleeing. The district court said:
To the extent that their accounts are inconsistent, the Court concludes that Witt's custodial statement is the most credible version of these events. It was given within hours of the events themselves. It was given by a person who did not know or wasn't focusing on the civil aspects of the case. It was given to interrogators who were concentrating on the criminal side of the case. In sum, it was the most candid, reliable account of those few minutes.
The district court found that Abraham was the passenger who told Witt that she had an arrest warrant outstanding.
As to Amanda, the district court said:
Amanda Jura comes as close as any of the three to an `innocent third party.' She may not have been subjectively aware that Witt was driving a stolen vehicle, although a young man without a job behind the wheel of such an expensive car would prompt questions for most people. [Amanda] did not have any outstanding warrants, and she may not have been carrying drugs. Nevertheless, at 4:00 A.M. when this journey began, the four had agreed to drive Witt from the house at which they were smoking methamphetamine to another *739 location, and to continue their drug use or to purchase additional drugs. All were aware that the group possessed controlled substances, and were subject to arrest if stopped and searched. They were all aware, including [Amanda], that they were taking a circuitous route to their destination, to avoid encountering police in the early morning hours. The confluence of all of these facts exceeds acquiescence. [Amanda], together with her friends Bruce and Abraham, promoted or advocated Witt's flight, at the time when they all became aware of and discussed the first officer's data check on their license plates, and the arrest warrant.
None of these girls consented to, or encouraged Witt to drive erratically, or to crash. They just wanted him to get away. They knew that it would be better for them if he did elude police.
Furthermore, the district court held that Amanda fell within the category of individuals "`sought to be apprehended in the fleeing vehicle'" and, thus, was not an innocent third party entitled to recovery under § 13-911(1). The district court dismissed Jura's case with prejudice.
Jura timely appeals the order of the district court.
ASSIGNMENT OF ERROR
Jura asserts that the district court erred in finding that Amanda was not an innocent third party under the terms of § 13-911.
STANDARD OF REVIEW
In actions brought under the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the verdict, it must be considered in the light most favorable to the successful party. Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).
When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. City of Gordon v. Ruse, 268 Neb. 686, 687 N.W.2d 182 (2004).
ANALYSIS
Jura argues that the district court erred in finding that Amanda was not an innocent third party pursuant to § 13-911(1), which states: "In case of death, injury, or property damage to any innocent third party proximately caused by the action of a law enforcement officer employed by a political subdivision during vehicular pursuit, damages shall be paid to such third party by the political subdivision employing the officer." For a passenger to be an innocent third party, the passenger (1) must not have promoted, provoked, or persuaded the driver to engage in flight from law enforcement personnel and (2) must not be one who is sought to be apprehended in the fleeing vehicle. Reed v. City of Omaha, 15 Neb.App. 234, 724 N.W.2d 834 (2006). See, also, Henery v. City of Omaha, 263 Neb. 700, 641 N.W.2d 644 (2002). Either circumstance prevents a finding that a claimant in a police pursuit case was an innocent third party. Reed v. City of Omaha, supra. As a result, we need not analyze both disqualifying circumstances, and after our study of the record in this case, we conclude that the disqualifying factor of "sought to be apprehended" lends itself to the most straightforward analysis and resolution. Therefore, we do not address the district court's conclusion that Amanda promoted Witt's flight.
Whether Amanda was a person "sought to be apprehended in the fleeing vehicle" is *740 a mixed question of fact and law, and given that the facts surrounding the question of "apprehension" are largely undisputed, we reach our own independent conclusion as to whether Amanda was a person "sought to be apprehended." See State v. Rathjen, 266 Neb. 62, 662 N.W.2d 591 (2003). Black's Law Dictionary 110 (8th ed. 2004) defines "apprehension" as "[s]eizure in the name of the law; arrest . . . ." But apprehend can also mean to "catch," see Reyes-Sanchez v. U.S. Atty. Gen., 369 F.3d 1239, 1243 (11th Cir.2004), or "detain," see United States v. Moderacki, 280 F. Supp. 633, 638 (D.Del.1968).
Part of the district court's rationale for its conclusion on the issue of apprehension was that "[a]ll were aware that the group possessed controlled substances, and were subject to arrest if stopped and searched." To the extent that the district court meant that everyone in the group was subject to arrest for the drugs in Bruce's purse, we reject that conclusion. All of the passengers knew that Bruce had drugs in her purse, but such fact did not make Amanda necessarily subject to arrest, because the purse was not her property and she was not in possession of the drugs. Evidence that the accused had physical or constructive possession of a drug with knowledge of its presence and its character as a controlled substance is sufficient to support a finding of possession. State v. Sotelo, 197 Neb. 334, 248 N.W.2d 767 (1977). There was no evidence to show actual or constructive possession of the drugs by Amanda. However, of greater significance is the simple fact that possession of drugs was not the officer's basis for starting or continuing the pursuit, and seeking to apprehend the vehicle's occupants, because he had no knowledge of such circumstance until after the pursuit ended.
Officer Deignan started the pursuit of the Lincoln once he became aware that the vehicle was stolen. The evidence does not establish that Amanda knew the Lincoln was stolen, but as the trial court reasoned, an inference of such knowledge may be permissible. However, Officer Deignan testified as follows:
Q. [By Bruce's counsel:] Are you aware, with your training as a police officer, as to whether there's such a crime as riding in a stolen vehicle?
A. As far as being a passenger?
Q. Yes.
A. There is a charge. I believe it's 28511, unlawful occupancy. Something similar to that.
Q. Have you ever charged anyone with that?
A. I have not, no.
Q. Would it be accurate to say that you were most interested in stopping the vehicle so that you could apprehend the driver of the stolen vehicle?
A. Not at that time, no.
Q. Didn't matter to you, driver versus passenger?
A. I wanted everybody inside the vehicle.
Officer Deignan also testified: "When you have a stolen vehicle with multiple occupants, you don't know who stole the vehicle, where it was taken from, who might have been driving it earlier. You don't have that information before you stop the vehicle and question the occupants." Also, two other Omaha police officers testified that in a situation involving a stolen vehicle, proper police procedure requires the officer to "catch" all occupants in the car, because not knowing when the vehicle was stolen, it is possible that everyone in the vehicle could have been involved in the auto theft.
Given the testimony of the police officers, we find that Amanda was a person sought to be apprehended in the fleeing vehicle. A police officer's grounds for seeking to apprehend occupants in a vehicular *741 chase situation must have a reasonable basis in the law and facts. Such a basis clearly exists in this case, because the vehicle was a stolen vehicle, as opposed to, for example, a chase starting with a traffic violation. Thus, Amanda was not an innocent third party and her estate is barred from recovering under § 13-911. It follows that we need not address whether Amanda promoted, provoked, or persuaded the driver to engage in flight from law enforcement personnel. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it. Brockhaus v. Lambert, 259 Neb. 160, 608 N.W.2d 588 (2000).
AFFIRMED.
INBODY, Chief Judge, not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567640/ | 86 F.2d 318 (1936)
WEST
v.
FRADENBURG, WEBB, BEBER, KLUTZNICK & KELLEY.
No. 10594.
Circuit Court of Appeals, Eighth Circuit.
November 19, 1936.
Clinton Brome, of Omaha, Neb., for appellant.
Robert J. Webb, of Omaha, Neb., for appellee.
Before GARDNER, SANBORN, and FARIS, Circuit Judges.
FARIS, Circuit Judge.
This is an appeal from an order of the trial court allowing appellee, a partnership of attorneys, the sum of $1,000 for legal services alleged by appellee to have been rendered by it in and about the reorganization of the Fred Krug Brewing Company, debtor, under the provisions of section 77B of the Bankruptcy Act (11 U. S.C.A. § 207). From this order of allowance the trustee appealed in the customary manner.
Appellee firm was employed by certain so-called rescinding stockholders of the debtor. These client stockholders, some eighteen in all, owned together 10,465 shares of debtor's stock (out of a total of 459,000 of which the holders of 258,000 shares are referred to as rescinding stockholders) for which they had originally paid about $18,000. The holders of the remaining shares of stock, some 448,535, in all, were represented by numerous other attorneys or firms of lawyers; none of whom, that is, attorneys for rescinding stockholders, it may be said in passing, either asked for, or was granted, compensation. True, a fee of $1,000 was allowed to one O'Brien who represented the so-called nonrescinding stockholders. But the allowance to O'Brien was agreed to out of court by the new company, which was obligated to pay such allowances as should be made to counsel.
We have met the very greatest difficulty in ascertaining from a record, peculiarly dark in many aspects, the precise nature of the claims of the so-called rescinding stockholders, some eighteen of whom as said were represented by the appellee firm. We read the record vainly in an effort to ascertain the precise nature of the claims of these rescinding stockholders. In the only written document or pleading ever filed in the proceeding by the appellee firm, so far as the record shows, they are *319 designated "as creditors or stockholders of the said debtor." So we assume that a rescinding stockholder was one who from the nature of his contract was in doubt as to his status, and who was willing to be either a creditor or a stockholder, as his interest should dictate. In the above pleading, they aver that they "join with the stockholders who have filed objections to the said plan of reorganization for the same reasons as are set forth in the objections filed by said stockholders herein on the ____ day of August, 1935." For relief they asked that their status (seemingly, whether as creditors or stockholders) be adjudicated and determined before any plan of reorganization should be voted upon by either creditors or stockholders; adopting fully in this, as they state, the objections made and the relief theretofore asked by others in like situation.
Beyond the filing of this above-mentioned document, which obviously concerned its clients only, the only other services rendered by appellee firm were (1) an objection, made informally, and in which various other creditors and stockholders joined, to a lease made by the temporary trustee to the Falstaff Brewing Company, with the result that ultimately another lease was made by appellant as trustee, and (2) an objection to the plan of reorganization as to the arrangement proposed for creditors, rescinding stockholders, and nonrescinding stockholders. In the plan first proposed, and afterwards changed upon objections by appellee firm and many others, the creditors were to get five-year debentures, and the stockholders preferred stock in the proposed new company; whereas in the final plan there were elections or options provided for as between cash and debentures and stock or cash for the above three classes.
As said already, the application for the allowance of a fee for legal services was made by appellee, for that, while it had represented a small group of rescinding stockholders, yet in the course of such representation it had performed services which also and incidentally benefited the estate of the debtor. The nature and extent of these services have already been set out. The trial court found that appellee firm had rendered services which were "of a beneficial character to this estate," and specified as such the two items of services we have recounted above.
The applicable language of the statute which provides for allowance of compensation to attorneys and others in a reorganization proceeding under section 77B of the Bankruptcy Act is found in subsection (c) (9), 11 U.S.C.A. § 207(c) (9), and reads thus: "The judge, in addition to the jurisdiction and powers elsewhere in this section conferred upon him, * * * (9) may allow a reasonable compensation for the services rendered and reimbursement for the actual and necessary expenses incurred in connection with the proceeding and the plan by officers, parties in interest, depositaries, reorganization managers and committees or other representatives of creditors or stockholders, and the attorneys or agents of any of the foregoing and of the debtor."
Obviously, the quoted language has the effect to confer on the administrative judge a discretion which will not be disturbed by an appellate court, unless that discretion has been abused, and so it has been held. In re National Lock Co. (C.C.A.) 82 F.(2d) 600; Kargman v. Grocery Center, Inc. (C.C.A.) 83 F.(2d) 617. It is also obvious from this statute that it is difficult, if not impossible, to lay down any general rule which will apply in a thoroughgoing manner to every situation which may arise in a case affecting those named specifically in the above statute, however confidently such a rule may be laid down as to those not mentioned in the statute as possible beneficiaries of the administrative judge's bounty. In other words, it seems fairly plain that under the statute, and so far as concerns the parties, officers, and entities named therein, each case must depend on its own particular facts, and so it has been held. In re Herz, Inc. (C.C.A.) 81 F.(2d) 511. In the case last above cited, the court on the latter point and others pertinent, at page 513, said: "The statute defines the groups that may be compensated, but this in no sense is to be construed as meaning shall be compensated. It is not every service that may in some remote degree contribute to the general welfare of the proceeding that the court is bound to compensate under this section of the statute. If it were, the very purpose of the statute would in many cases be frustrated. Every case must stand upon its own bottom and is subject to the exercise of a sound judicial discretion by the trial court, subject to review in the event of abuse."
It is plain from even a casual reading of the statute under discussion that it is not made clear that the court may even *320 exercise a discretion in the matter of an allowance to an attorney for a single creditor, or stockholder, or small isolated, independent, and unorganized group of creditors, or stockholders, as in the case at bar. This for the reason that the applicable language is, that an allowance may be made to "committees or other representatives of creditors or stockholders" and the attorneys or agents of such. (Our Italics.) It is fairly clear that this means a creditors' committee and a stockholders' committee, or stockholders' protective committee, and the attorneys and agents of such. But does it mean and include the attorney of a single creditor, or a single stockholder, or a small, independent unorganized group of either? It nowhere says that a fee may be allowed to the attorney of a single creditor or a single stockholder, but, using the plural, it may well mean that compensation may be allowed only to the attorney of a "committee of creditors, or stockholders," and then only in cases where the services rendered contributed to the solution of the debtor's difficulties and aided the process of rehabilitation.
The doubt expressed and the query suggested, touching whether the statute quoted applies at all to an attorney for a single creditor, or stockholder, or to small, unorganized groups of either, are bottomed, not alone on the quoted language used by the Congress in writing the statute, but also on numerous apposite utterances of the Supreme Court. See Continental Illinois National Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 685, 55 S. Ct. 595, 610, 79 L. Ed. 1110; Callaghan v. Reconstruction Finance Corporation, 297 U.S. 464, 469, 56 S. Ct. 519, 521, 80 L. Ed. 804; Realty Corporation v. O'Connor, 295 U.S. 295, 299, 55 S. Ct. 663, 664, 79 L. Ed. 1446.
In the Callaghan Case, supra, 297 U.S. 464, at page 469, 56 S. Ct. 519, 521, 80 L. Ed. 804, the Supreme Court said: "One of the controlling reasons for the enactment of section 77 B was the desire to reduce the cost of reorganization." And in the O'Connor Case, supra, authority is given for a strict construction of the language of the Congress. For at page 299 of 295 U.S., at page 665 of 55 S.Ct., the Supreme Court said: "Extravagant costs of administration in the winding up of estates in bankruptcy have been denounced as crying evils. * * * Congress meant to hit the evil of extravagance, and * * * the meaning of its words, if doubtful, must be adapted to its aim."
That the statute does put an allowance to the attorney for a committee of creditors or stockholders, within the discretion of the administrative judge, so that abuse thereof in refusing compensation will be corrected by an appellate court, has been held in a number of cases in which the question has been up for judgment. In re Paramount Publix Corporation (C.C.A.) 83 F.(2d) 408; Kargman v. Grocery Center, Inc. (C.C.A.) 83 F.(2d) 617; In re Milwaukee Lodge, etc. (C.C.A.) 83 F.(2d) 662. But we have found but one case, In re Consolidated Motor Parts, Inc. (C.C.A.) 85 F.(2d) 579, nor has the diligence of counsel pointed out any other to us, wherein a fee has been allowed to an attorney for a single creditor, a single bondholder, or a small, independent unorganized group of bondholders, or creditors. However, in view of the seeming trend of the law in this court, Teasdale v. Sefton, etc., Co., 85 F. (2d) 379, and one other, In re Consolidated Motor Parts, Inc., 85 F.(2d) 579, towards the rule that services to the estate, vel non, largely govern the exercise of administrative discretion, we hesitate, till we meet the point face to face, to hold categorically that the statute does not under any situation warrant an allowance to the attorney of a single creditor, or stockholder, or a small independent unorganized group of such. But, if services by such attorneys are to be compensated from the funds of the debtor, the record should clearly indicate that the services rendered were of obvious and outstanding value to the estate, and that they were not mere duplications of the services of other attorneys, within whose duty rendition lay. In re Consolidated Motor Parts, Inc., supra; In re New York Investors, Inc. (C.C.A.) 79 F.(2d) 179; In re Paramount Publix Corporation (C.C.A.) 85 F. (2d) 588. For it is too plain to render exposition necessary, that the allowance of compensation to every attorney who, representing an infinitesimal interest in a pending matter, chooses to inject himself into hearings and matters, without authority or contract, and where such matters are already being given attention by attorneys whose plain duty it is to look after them, would have the effect to parcel out the debtor's assets, among the attorneys for creditors and stockholders, without *321 even the formality of casting lots, as even the Roman soldiers did at Golgotha. It is trite to say that section 77B of the Bankruptcy Act (11 U.S.C.A. § 207) was passed for the benefit of ailing business, and not entirely for the benefit of the Bar. Teasdale v. Sefton, etc., Co., supra; In re Herz, Inc., supra.
However, without a dogmatic construction of nonapplicability of a somewhat ambiguous statute, we think the case at bar may be ruled alone on the plain facts in the record. Here appellee firm had, we may assume, a contract to represent about 1/46 of the whole number of stockholders and about 1/26 of the so-called rescinding stockholders; they filed in the case but one paper, and that, as already said, was wholly in the interests of their own clients; they protested (orally, so far as the record discloses) against a certain proposed lease, as also did the trustee and others, and the lease was not made; they objected, as did others, to the first proposed reorganization plan, because no provision was made therein for the payment of any sum in cash to creditors or stockholders. Thereupon the second plan was made to provide an option, or election to creditors to take cash, or debentures in the new company and for the stockholders, if they so desired, to sell their stock for cash. But of this provision a member of appellee firm and the only witness who testified for appellee said: "As far as I know our office did not participate in any way, in any negotiations that brought about the plan of the cash offer to stockholders." Indeed, it was said by a witness for appellant, and not denied, that the member of appellee firm most active in the case had stated that he had never read the second or final plan. This plan, as the record clearly shows, differed, as said already, in no material way from the plan discarded, save as to the matter of an option to creditors and stockholders to take cash in lieu of new stock or debentures, and in this change appellee firm had no part. The appellant, as trustee, was ordered to investigate the first lease, and he did so, with the result that a new lease was made. And so what has been said already as to duplication of legal services is applicable.
It follows that we are unable to find in the record any substantial evidence that appellee firm did anything, or rendered any legal services, which so far redounded to the benefit of the estate as to warrant an allowance in its favor.
It follows from what has been said that the case should be reversed and remanded, with directions to enter an order denying compensation to appellee from the estate of the debtor. Let judgment be entered accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567641/ | 10 So. 3d 717 (2009)
STATE ex rel. Antoinette FRANK
v.
Burl CAIN, Warden, Louisiana State Penitentiary, Angola, Louisiana.
No. 2008-KP-2393.
Supreme Court of Louisiana.
May 20, 2009.
ORDER
Considering that on October 1, 2008, relator filed an application for supervisory writ and moved this court to extend the deadline for filing her supplemental application for post-conviction relief; and considering that on November 24, 2008, this Court vacated the warrant of execution issued by the trial judge and stayed further proceedings below pending our consideration of relator's motion;
IT IS ORDERED, ADJUDGED, AND DECREED that the motion to extend the deadline for the filing of relator's supplemental application for post-conviction relief is herewith granted. Relator may file her supplemental application for post-conviction relief in the district court on or before 5:00 p.m., July 1, 2009, and must do so without further extensions of time.
/s/ Catherine D. Kimball
Justice
TRAYLOR, J., dissents and assigns reasons.
KNOLL, J., dissents for the reasons assigned by TRAYLOR, J.
TRAYLOR, Justice, dissenting from the granting of the writ.
Relator filed an application with this court seeking to overturn the denial of her "shell" application by the trial court and to vacate the warrant signed by the trial court setting an execution date of December 8, 2008. The application also asks this court to grant relator a reasonable time in which to prepare a supplemental application for post-conviction relief.
This court has previously, on May 16, 2008, issued an order setting aside an earlier warrant of execution, and ordering the trial court to provide relator an addition 90 days in which to file a supplemental application setting forth specific substantive claims for relief. On the last day of the extension of time already granted by this court, counsel for relator filed another motion for an extension of time in which to file a supplemental application.
Although counsel for relator, the Capital Post Conviction Project of Louisiana (CPCPL), maintains that it must launch a reinvestigation of the entire case under current American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines"),[1] I note that many of the guidelines are addressed to trial counsel, and that, with respect to postconviction proceedings, the ABA Guidelines are merely precatory. Indeed, I do not believe the law requires that counsel reinvestigate the entire case, as though the case had never been investigated, brought to trial, and affirmed on appeal:
"[t]here is no constitutional right to an attorney in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L.Ed.2d 1(1989) (applying the rule to capital cases). Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. See Wainwright *718 v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance)."
Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991). Instead of precatory guidelines, I believe counsel for relator should focus on a review of the record consistent with the rules for post conviction relief addressed in our state's law, i.e. La.C.Cr.P. art. 924 et seq.
CPCPL asserts that relator in the present case is fourteenth in line on its list of death row inmates awaiting the filing of post conviction applications, as though their priority system outweighs orders from this court. The CPCPL's priority system is one of the reasons that it claims it is unable to comply with our earlier order or to expeditiously file an application for post conviction relief. I believe the solution to that problem is simple. I would relieve CPCPL of its appointment, set a rule to determine whether its behavior is sanctionable, and direct that the district court appoint outside counsel for this death row inmate.
For the foregoing reasons, I respectfully dissent from the granting of this writ or in providing even more time to CPCPL in which to file a supplement to its application for post conviction relief.
NOTES
[1] 31 Hofstra L.Rev. 913 (2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567679/ | 170 F.2d 294 (1948)
STIDHAM
v.
UNITED STATES.
No. 13765.
United States Court of Appeals Eighth Circuit.
November 2, 1948.
James William Stidham, pro se.
Sam M. Wear, U. S. Atty. and David A. Thompson, Asst. U. S. Atty., both of Kansas City, Mo., for appellee.
*295 Before THOMAS and JOHNSEN, Circuit Judges.
PER CURIAM.
This is an appeal in forma pauperis from an order denying a motion to vacate a judgment sentencing James William Stidham to a term of five years imprisonment upon his plea of guilty to an indictment pending against him in the Western District of Missouri, and to grant him leave to withdraw his plea of guilty thereto.
The indictment in the case was returned May 21, 1947. It charged that on or about May 10, 1947, James William Stidham transported a stolen motor vehicle, to-wit, a 1946 Cadillac sedan, from Birmingham, Alabama, to Kansas City, Missouri, and that he then knew the motor vehicle to have been stolen, in violation of the National Motor Vehicle Theft Act (The Dyer Act), 18 U.S.C.A. § 408.[1]
The case came on for hearing before Judge John C. Collet, then district judge, on July 1, 1947, when the following proceedings were had:
"The Court: The case of the United States v. Stidham, is that for disposition this morning? Mr. Thompson: Yes.
"Do you have an attorney? The Defendant: No, sir.
"Mr. Thompson: Do you want the Court to appoint you one? The Defendant: Well, I would like to hear the warrant, if I may.
"The Court: What did he say? Mr. Thompson: He said he wanted to hear the warrant. I will read the indictment:
"The Grand Jury charges that on or about the 10th day of May, 1947, James William Stidham transported a stolen motor vehicle, to wit, a 1946 Cadillac sedan, Motor No. 640453, from Birmingham, State of Alabama, to Kansas City, Missouri, in the Western District of Missouri, and he well knew that said car had been stolen."
The Defendant: I don't want an attorney from the Court.
"The Court: You do not want one? The Defendant: No, sir.
"The Court: You understand fully what the charge is? The Defendant: Yes, sir.
"The Court: Do you know what the punishment provided by the statute could be? The Defendant: No, sir.
"The Court: How many counts are there? Mr. Thompson: One.
"The Court: One count, it could be five years in the penitentiary, or anything less than that. That is the maximum punishment. The Defendant: Your Honor, I just came out of the penitentiary and I had only been out for forty days when I stole this automobile, and I went in when I was a real young guy, and I went to Birmingham and stayed down there for all the time and tried to get a job and it was impossible to get a job down there. I registered at all the employment offices and tried every place to get a job.
"Well, I was drunk when this car and didn't know I was stealing, and tried to get a car and leave the car some place, and I came up here and I was going to send it back.
"I would like to have the mercy of the Court. To go back to the penitentiary for a long time, I don't think it would do any good.
"I have never had any trouble before. The only trouble I have been having a spree. I never had a break. My people are poor and I am poor. And they told me if I would come up here I could get a job and make a living, and that is what I want to do.
"The Court: The reason for my statement was that in order to be sure that you understood the nature of the charge, the extent of possible punishment, as a preliminary to asking you whether or not you are ready to and have made up your mind as to what plea you want to enter to this charge, whether you want to plead guilty or not guilty. Have you made up your mind? The Defendant: Yes, sir.
"The Court: What plea do you want to enter, a plea of guilty or not guilty? The Defendant: I will enter a plea of guilty."
Statements were then made by the assistant district attorney, David A. Thompson, *296 and the district attorney, Sam M. Wear, with further statements and explanations by the defendant. Mr. Thompson read a written statement signed by the defendant, which recited the details of the stealing of the automobile and driving it from Birmingham to Kansas City. Then followed:
"The Court: You will be sentenced to imprisonment in an institution to be designated by the Attorney General for a period of four years. The Defendant: May I say something else, your Honor?
"The Court: Yes. The Defendant: I would like to withdraw my plea of guilty on the car. It says that the car was stolen in Birmingham and the car was stolen in New Orleans. I would like to withdraw my plea of guilty and enter a plea of not guilty. I would like to stand a jury trial. The warrant says the car was stolen in Birmingham and the car was stolen in New Orleans.
"The Court: The request to withdraw the plea of guilty is denied under the circumstances. It is obvious that you make it only after the sentence has been pronounced. The Defendant: Well, I will appreciate it if you will give me time to file a writ of habeas corpus, because I don't see where I asked mercy from the Court and I don't see where I got much.
"The Court: All right, you may have time to file your application for a writ of habeas corpus. The Defendant: Will the Court appoint an attorney to help me out on that?
"The Court: Do you have any money? The Defendant: No, sir.
"The Court: Do you have any means at all? The Defendant: No, sir.
"The Court: Upon what ground do you want to file an application for a habeas corpus? The Defendant: Your Honor, it says there the car was stolen in Birmingham and the car was stolen in New Orleans, and the car was a '47 Cadillac and I am charged with stealing a '46 Cadillac.
"The Court: Was the car stolen? The Defendant: Yes, sir.
"The Court: Was it transported to Kansas City, Missouri? The Defendant: Yes.
"The Court: All right, you have no grounds for habeas corpus. The Defendant: But I should file a motion
"The Court (Interrupting): I shall not appoint a lawyer for you to help you to search for some imaginary reason to file a habeas corpus.
"Let the record show the sentence heretofore imposed is set aside and that this defendant is sentenced to an institution to be designated by the Attorney General for a period of five years from today."
On April 21, 1948, the defendant filed his verified motion from the denial of which this appeal was taken. The motion captioned "(Motion for Relief From Judgment)", recites that "Pursuant to the provisions of Rule 32(d) of the New Federal Rules of Criminal Procedure [18 U.S.C.A.] * * * the defendant * * * moves the * * * Court to vacate the judgment and sentence imposed on the indictment herein and to grant the defendant * * * leave to withdraw the plea of guilty heretofore entered to said indictment * * *"
As grounds for the motion the defendant alleged that he did not commit the offense charged; that he was denied the right to have the aid and advice of counsel and the right to withdraw the plea of guilty in violation of the Fifth and Sixth Amendments to the Constitution; that his plea of guilty was coerced through the deceit and trickery of counsel for the United States prior to the plea of guilty; that he had prepared a notice of appeal and mailed the same to the United States Attorney who withheld the same from the court; that his plea of guilty and failure to appeal were thus due to excusable neglect; and that as a result he has been deprived of his liberty without due process of law.
Affidavits in opposition to the motion denying the charges of deceit and trickery were filed by the United States Marshal, by a deputy United States Marshal, and by the Assistant United States Attorney who had charge of the prosecution.
The motion was submitted to Judge R. M. Duncan on April 30, 1948, and after due consideration was denied. Judge Duncan in a lengthy opinion reviewed the record, *297 the defendant's written confession and the affidavits and found that defendant's statements in his motion were not founded upon facts; that all persons in the district attorney's office who had any connection with the case had filed affidavits which set forth that they made no such representations to the defendant as he charged in his motion.
The appeal has been submitted on elaborate briefs. In substance the defendant contends here, as he did in the district court, that Judge Duncan erred in overruling his motion, first, because the judgment sentencing him is void in that upon arraignment he was denied his constitutional rights in two respects: (a) he was denied the aid and advice of counsel; and (b) his plea of guilty was induced by the deceit and trickery of the assistant district attorney; and, second, because Judge Collet abused his discretion in refusing to permit him to withdraw his plea of guilty.
As to his right to the aid and advice of counsel, Rule 44 of the Rules of Criminal Procedure provides "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or he is able to obtain counsel." The extent of the right to counsel has been recently defined by the Supreme Court in Von Moltke v. Gillies, etc., 332 U.S. 708, 68 S. Ct. 316, and cases cited therein.
The defendant makes no claim that he was not advised of his rights by the court at the time of his arraignment or that he did not in the first instance "elect to proceed without counsel." The claim is that after the court had pronounced sentence he was denied the assistance of counsel to aid him in preparing a petition for a writ of habeas corpus. The record shows that this request was denied. In this connection it should be borne in mind that an application for writ of habeas corpus is not a criminal proceeding but a civil one, and the court was not required by the Constitution or by statute to furnish the defendant counsel to prepare a petition for the writ. White v. Pescor, 8 Cir., 155 F.2d 902; Ex parte Tom Tong, 108 U.S. 556, 2 S. Ct. 871, 27 L. Ed. 826; Price v. Johnston, 9 Cir., 159 F.2d 234, 236; Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 877.
It must be observed here, also, that this proceeding on defendant's motion is not a criminal proceeding but a civil one; that it calls for only "a thorough judicial investigation to ascertain whether there [has] been a denial of constitutional right", Murrey v. United States, 8 Cir., 138 F.2d 94, 96, and the burden is on the defendant to sustain the allegations of his motion.
The contention that he was tricked into pleading guilty is without merit. The evidence and the record before Judge Duncan abundantly support his findings that the allegations of the motion as to defendant's guilt and as to the alleged trickery and deceit of the Assistant United States Attorney are unfounded in fact.
The second contention of the defendant is that Judge Collet abused his discretion by refusing to permit him to withdraw his plea of guilty after sentence was pronounced. This is based on the assertion that the judge had no right to set aside the four-year sentence which he first pronounced and to impose a five-year sentence. This was done while the defendant was still at the bar and before the sentence was recorded. A similar situation was presented to this court in the case of Nichols v. United States, 8 Cir., 106 F. 672, 678, and there the court said: "The first sentence was not recorded. The defendant had not yet left the bar, and had not satisfied or suffered any part of the punishment thereunder, when it was set aside and the second sentence imposed. Under these conditions, it was competent for the court to reconsider its sentence and impose a different one." See, also, Oxman v. United States, 8 Cir., 148 F.2d 750, 159 A.L.R. 155, certiorari denied, 325 U.S. 887, 65 S. Ct. 1569, 89 L. Ed. 2001, rehearing denied 326 U.S. 804, 66 S. Ct. 14, 90 L. Ed. 490, second petition for rehearing denied, 326 U.S. 807, 66 S. Ct. 133, 90 L. Ed. 492.
Further, the granting or the denial of leave to withdraw a plea of guilty is a matter of discretion of the trial court and not a matter of right, and upon review *298 of such denial the only question for the appellate court is whether that discretion was abused. A mere showing of the denial of the motion is not sufficient to show abuse. Bergen v. United States, 8 Cir., 145 F.2d 181, 186. A defendant's contention that he did not know that he would be subjected to a severe sentence when he entered his plea of "guilty" is not sufficient grounds for reversing the trial court's refusal to permit withdrawal of the plea. United States v. Colonna, 3 Cir., 142 F.2d 210. It was incumbent upon the defendant to state to the court at the time leave to withdraw the plea was made some reason why the judgment should not stand against him, and "that reason must amount to a fraud or an imposition upon him, or a misapprehension of his legal right." Rachel v. United States, 8 Cir., 61 F.2d 360, 362. The record shows that the only reason assigned was that he was not guilty of the offense charged because he stole the automobile in New Orleans and not in Birmingham. The indictment does not say where the car was stolen. He was not charged with theft of the car but with transporting the car from Birmingham to Kansas City in violation of the Dyer Act. He admitted over and over both that he stole the car and that he transported it as charged. There is no merit in this contention.
Other contentions argued by defendant are trivial and without merit. The findings and decision of Judge Duncan are abundantly supported by the record. The order appealed from is accordingly
Affirmed.
NOTES
[1] In 1948 Revision, 18 U.S.C.A. §§ 2311-2313. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567677/ | 10 So. 3d 927 (2009)
Charles P. LEPINE, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-KA-02197-COA.
Court of Appeals of Mississippi.
February 17, 2009.
Rehearing Denied June 16, 2009.
*932 George T. Holmes, Jackson, attorney for appellant.
Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.
EN BANC.
LEE, P.J., for the Court.
PROCEDURAL HISTORY
¶ 1. Charles Lepine was convicted in the Circuit Court of Pearl River County of aggravated driving under the influence (DUI) and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended. Lepine appeals his conviction and sentence alleging the following errors: (1) the amendment of the indictment was erroneous; (2) the trial court erred by denying a continuance after receiving late discovery from the State; (3) an evidentiary foundation was not laid for the blood-alcohol-content test results; (4) the trial court erred in allowing opinion evidence from the State's witness; (5) the trial court erred by failing to qualify the defense witness as an expert; (6) the trial court erred by denying the motion for a mistrial following the State's disregard of the trial court's ruling on the inflammatory argument; (7) the State failed to present sufficient evidence on all elements of aggravated DUI, and the verdict was not supported by the weight of the evidence; and (8) the trial court gave an erroneous jury instruction misstating the law on the duty of motor vehicle operators.
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. On February 22, 2003, Lepine drove some family members and friends to a Mardi Gras parade in Terrytown, Louisiana. The group, which traveled in Lepine's 1985 Buick station wagon, consisted of Lepine and the following nine passengers: Lepine's wife, Ellen; his two sons, Adam (age sixteen) and Lance (age seven months); his daughter, Rachael; his grandson, Chandler Hill; and his friends: Kenneth Verrett, Sr.; Kenneth Verrett, Jr. (age one month); Frank Verrett; and Gina Stockstill.
¶ 4. Lepine ingested alcohol during the afternoon and then began driving the group home to Hancock County, traveling on U.S. Highway 43 South. At about 7:30 p.m., while navigating a curve in Pearl River County, Lepine lost control of the vehicle. The station wagon left the roadway, hit a culvert, flipped, and landed 379 feet away from the point at which it left the road. Four people died as a result of *933 the accident, including Kenneth Verrett, Sr.; Frank Verrett; and babiesKenneth Verret, Jr. and Lance Lepine.
¶ 5. Lepine appeared to be visibly intoxicated to the officers who responded to the accident. Officer Roy Jacobson testified that he was the first officer at the scene. When he arrived, emergency medical personnel requested that he remove Lepine from the scene because he was causing a disturbance. Officer Jacobson testified that Lepine refused to leave, and when Officer Jacobson placed his hands on him, Lepine broke away and struck him in the face, neck, and shoulder. With assistance, Officer Jacobson was able to place Lepine under arrest. Officer Jacobson testified that Lepine appeared to be under the influence of alcohol because an odor of alcohol emanated from him.
¶ 6. Officer Joe Johnson testified from his observations at the scene that Lepine had an odor of an alcoholic beverage coming from him, had slurred speech, and glassy eyes, and after being read his Miranda rights, Lepine stated: "I have been drinking and now I've killed my baby." Police recovered a beer can from the floor of the station wagon. The results of a blood-alcohol-content test performed two hours after the accident showed that Lepine's blood-alcohol content (BAC) was .09 percent, which is over the legal limit. Officer Jacobson testified that Lepine had nothing to eat or drink between the time of the accident and the time of the blood test.
¶ 7. Lepine testified. He claimed that he had consumed three beers over the course of the afternoon in Terrytown, but he had stopped drinking at 3:30 p.m. Lepine said that he began the return trip two hours after consuming the last beer. During the return trip, he ate two hot dogs. Lepine testified that he was traveling at about fifty-five or sixty miles per hour before the accident. Lepine said that he lost control of the car after swerving to miss an approaching car that had crossed the center line. He denied that he had been driving drunk, and he denied that he had assaulted Officer Jacobson.
¶ 8. Edith Meaux testified that she was traveling north on U.S. Highway 43 when she witnessed the accident. She saw Lepine's oncoming car veer off the road, hit a culvert, go airborne, and flip over. Meaux testified that there were no other cars on the road at the time.
¶ 9. The jury convicted Lepine of aggravated DUI, but it acquitted him of simple assault of a law enforcement officer.
DISCUSSION
I. WHETHER THE AMENDMENT OF THE INDICTMENT WAS ERRONEOUS.
¶ 10. Lepine contends that the trial court erred by allowing the amendment of his indictment. Lepine originally was indicted on four counts of aggravated DUI, one count for each victim's death. However, it was pointed out to the trial judge that the accident had occurred prior to the 2004 amendment to Mississippi Code Annotated section 63-11-30(5) which allowed for a separate conviction for each death caused by the drunk driving. At the time of Lepine's offense, the aggravated DUI statute had been interpreted by the supreme court to criminalize the act of drunk driving rather than the act of killing. Mayfield v. State, 612 So. 2d 1120, 1128 (Miss.1992). Therefore, Lepine could only be convicted of a single count of aggravated DUI although he had killed four people. Id. The trial court permitted an amendment to Lepine's indictment to reflect the law that was in existence at the time of the crime and to charge Lepine with one count *934 of aggravated DUI for the deaths of all four victims.
¶ 11. On appeal, Lepine argues that the amendment was impermissible because it was one of substance and not one of form. "In Mississippi, issues of law are reviewed de novo by appellate courts." Cridiso v. State, 956 So. 2d 281, 285(¶ 8) (Miss.Ct.App.2006) (citing Jones v. State, 912 So. 2d 973, 975(¶ 8) (Miss.2005)). "Because a determination of whether an amendment is one of form or one of substance is a question of law, a court's decision to allow the amendment of an indictment `deserves a relatively broad standard of review.'" Id. An amendment is permissible if it "does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Wilson v. State, 935 So. 2d 945, 948(¶ 9) (Miss.2006) (quoting Miller v. State, 740 So. 2d 858, 862(¶ 13) (Miss.1999)). Uniform Rule of Circuit and County Court 7.09 states, in pertinent part, that an indictment can only be amended "if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised." Lepine contends that he was unable to defend against count one of the amended indictment, which charged him with all four deaths, because it could not be determined whether the jury found him guilty of one death or for the aggregate of all four deaths. Lepine claims that this was impermissible under the statute.
¶ 12. Contrary to Lepine's argument, the jury could have found him guilty of the single count of aggravated DUI if it believed him responsible for only one of the deaths or for all four deaths. Mayfield, 612 So.2d at 1127. Lepine's defense was that he had not been driving under the influence of alcohol; he testified that he had consumed only three beers hours earlier, and he testified that he had not negligently operated the vehicle. However, Lepine never disputed that he caused the deaths of his passengers; at the trial, it was undisputed that the wreck was the cause of the death of all four victims. Therefore, the amendment did not materially alter Lepine's defense.
¶ 13. Lepine also argues that the indictment was both multiplicitous and violated double jeopardy because it charged all four deaths in one count. There is duplicity in criminal pleadings when there is joinder of two or more distinct and separate offenses in the same count. United States v. Robin, 693 F.2d 376, 378 (5th Cir.1982) (citing C. Wright, Federal Practice and Procedure: Criminal § 142 at 469). Under the statute in effect at the time of the accident, a defendant is guilty of aggravated DUI, whether he caused one death or many, based upon the single act of causing death by negligently operating a vehicle while intoxicated. Miss.Code Ann. § 63-11-30(5) (Rev. 2002); Mayfield, 612 So.2d at 1127. Therefore, the indictment was proper under the law as it existed at the time of the offense. This issue is without merit.
II. WHETHER THE TRIAL COURT ERRED IN DENYING A CONTINUANCE AFTER RECEIVING LATE DISCOVERY FROM THE STATE.
¶ 14. Lepine avers that he was not advised until a few days before the trial that the State's toxicology expert was going to offer an opinion on retrograde extrapolation, which refers to the estimation of the BAC of an individual at a given time based on rates of absorption and dissipation over a period of time.[1] At a hearing *935 on pretrial motions, Lepine requested that the retrograde extrapolation testimony be excluded or, alternatively, a continuance. The court denied the motion to suppress and the motion for a continuance, but it allowed the defense the opportunity to voir dire the State's expert outside the presence of the jury. The trial court previously had granted Lepine's request for funds with which to consult a toxicology expert.
¶ 15. Lepine's argument that he should have received a continuance after the trial judge denied his motion to suppress is without merit. Lepine was given notice of the retrograde extrapolation testimony on May 25, 2005, and the trial was scheduled for May 29, 2005. However, the trial did not occur until August 22, 2005. Therefore, Lepine was not prejudiced because he actually had three months before the trial to consult a toxicologist to prepare for cross-examination of the State's toxicology expert. "To warrant reversal on an issue, a party must show both error and a resulting injury." Vardaman v. State, 966 So. 2d 885, 891(¶ 25) (Miss.Ct. App.2007). Lepine cannot show any injury that resulted from the denial of his motion for a continuance. Thus, this issue is without merit.
III. WHETHER AN EVIDENTIARY FOUNDATION WAS LAID FOR THE BLOOD-ALCOHOL-CONTENT TEST RESULTS.
¶ 16. Lepine argues that no proper predicate was laid for the introduction of the blood-alcohol-content test results showing that approximately two hours after the accident, he had a blood-alcohol concentration of .09 percent. He contends that, under Johnston v. State, 567 So. 2d 237, 238 (Miss.1990), the following three-part evidentiary predicate must be laid for the admission of BAC tests: (1) the statutory procedures of Mississippi Code Annotated section 63-11-19 were followed; (2) the operator of the machinery used was certified to conduct the testing procedures; and (3) the accuracy of the machine used was quarterly calibrated and certified. In Johnston, the supreme court reversed because there was no evidence that the Intoxilyzer machine was certified. Johnston, 567 So.2d at 239. Lepine argues that the BAC test results were inadmissible because this three-part evidentiary predicate was not established.
¶ 17. Lepine's reliance on Johnston is misplaced. In Jones v. State, 881 So. 2d 209, 216(¶ 25) (Miss.Ct.App.2002), this Court distinguished Johnston, which involved Intoxilyzer tests, from other testing methods such as a blood analysis, holding that "the procedures used in the analysis must pass a test of reasonableness." No Intoxilyzer test was used in Lepine's case. Instead, hospital personnel drew Lepine's blood and submitted it for blood testing by the Mississippi Crime Laboratory. The results were admitted into evidence at trial through the forensic toxicologist who tested the sample. There was extensive testimony about the forensic toxicologist's qualifications to perform the tests and about the lab's procedures and protocols. The three-part Johnston predicate was not required for the admission into evidence of Lepine's BAC test results. The only requirement was one of proof that the procedure was reasonable, and we find that it was adequately established through the trial testimony. Therefore, this issue is without merit.
IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING *936 OPINION EVIDENCE FROM THE STATE'S WITNESS.
¶ 18. The trial court accepted the State's expert, Wendy Hathcock, as an expert in the field of forensic toxicology with expertise in the interpretation and analysis of the effect of alcohol on the body. Hathcock worked for the Mississippi Crime Laboratory as a forensic toxicologist. She testified that she had performed over two thousand tests on blood samples to determine BAC, and she had been qualified as an expert in that field about ten times. Hathcock testified that she performed an alcohol-analysis test on two samples of Lepine's blood taken approximately two hours after the accident, one taken at 9:35 p.m. and one taken at 9:55 p.m. She tested each sample twice. The 9:35 sample tested at .0972 and .0979. The 9:55 sample tested at .0948 and .0915. Hathcock testified that she arrived at a blood-alcohol concentration of .09 for both the 9:35 and 9:55 samples by rounding the results for each to .09 percent.[2] The legal limit was .08 percent. Miss.Code Ann. § 63-11-30(1) (Rev.2002).
¶ 19. Hathcock further testified that the two samples indicated that Lepine was in the "elimination phase."[3] This was because the sample taken at 9:35 p.m. had a higher blood-alcohol concentration than the sample taken twenty minutes later. At this point, Lepine objected on the basis of foundation to the opinion testimony that he was in the elimination phase. The State attempted to lay a foundation by eliciting testimony about Hathcock's qualifications to testify about alcohol absorption and elimination. The trial court overruled the objection to foundation. Then, Hathcock opined that it was "possible" that Lepine was in the elimination phase between 9:35 and 9:55. Lepine objected to this testimony on the basis of foundation, and the trial court overruled the objection.
¶ 20. Then, Hathcock testified that based upon her education and experience at the Mississippi Crime Laboratory, the average elimination rate for alcohol for a person is .015 to .020. Based upon that elimination rate and Lepine's BAC approximately two hours after the accident, Hathcock testified to a reasonable degree of certainty that Lepine had a BAC of .08 or higher at the time of the accident. Lepine objected to this testimony as improper because Hathcock had not been certified as an expert in the field of retrograde extrapolation. The trial court overruled the objection because the prosecution had not asked Hathcock to calculate Lepine's blood-alcohol concentration at the time of the accident. On cross-examination, Hathcock testified that she could only assume from the numbers that Lepine was in the elimination phase, because that conclusion would be affected by any food or beverage he might have consumed after the accident. She testified with scientific certainty that the average person is in the elimination phase within forty-five minutes after their last alcoholic drink.
*937 ¶ 21. On appeal, Lepine argues that Hathcock's testimony that it was "possible" that Lepine was in the elimination phase at the time his blood was drawn was irrelevant and inadmissible under Mississippi Rule of Evidence 702. He also argues that the testimony was unreliable because the testimony that it was "possible" Lepine was in the elimination phase shows that Hathcock did not apply scientific principles and methods reliably to the facts of the case. Lepine avers that this testimony was speculative.
¶ 22. This Court will not disturb a trial court's ruling on the admissibility of evidence absent an abuse of discretion. Ford v. State, 975 So. 2d 859, 865(¶ 16) (Miss.2008). "This Court must first determine if the proper legal standards were applied." Id. (citing Peterson v. State, 671 So. 2d 647, 655-56 (Miss.1996) (superceded by statute)). "If the trial court applied an improper legal standard, resulting in prejudice to the accused, then a reversal is warranted." Id. (citing Peterson, 671 So.2d at 656). The admissibility of expert testimony is governed by Rule 702 of the Mississippi Rules of Evidence. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
In Mississippi Transportation Commission v. McLemore, 863 So. 2d 31, 39(¶ 23) (Miss.2003), our supreme court adopted a "modified Daubert" standard for the admission of expert testimony. The supreme court stated that, for the admission of expert testimony, (1) "the witness must be qualified by virtue of his or her knowledge, skill, experience or education," and (2) "the witness's scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue." Id. at 35(¶ 7). "The trial court is vested with a `gatekeeping responsibility'" when it reviews scientific evidence. Id. at 36(¶ 11). To exercise this responsibility, the trial court must determine whether the expert testimony meets a two-pronged inquiry for admissibility: the testimony must be both relevant and reliable. Id. "The trial court must make a `preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.'" Id. (quoting Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 593, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). To meet the relevance prong, the evidence must assist the trier of fact. Id. at 38(¶ 16). In assessing the reliability prong, the trial court must focus "solely on principles and methodology, not on the conclusions they generate." Id. at 36-37(¶ 13) (quoting Daubert, 509 U.S. at 595, 113 S. Ct. 2786). Reliability is to be determined with reference to "a non-exhaustive, illustrative list of reliability factors for determining the admissibility of expert witness testimony," including:
whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.
*938 Id. The reliability inquiry is a flexible one, with the applicability of the factors being dependent upon "the nature of the issue, the expert's particular expertise, and the subject of the testimony." Id.
¶ 23. In Smith, this Court approved the admission, under the modified Daubert standard, of forensic toxicology testimony about retrograde extrapolation. Smith, 942 So.2d at 318(¶ 26). In Smith, the defendant's BAC four hours after the accident was determined to be .13; at the time, the legal limit was .10. Id. at 312(¶ 8). Experts for the State and the defense offered opinions on retrograde extrapolation. Id. at 316(¶ 21). The State's expert testified that Smith's BAC would have been higher at the time of the accident:
Jochimsen [a state crime lab forensic toxicologist] explained that she applied the known value (Smith's BAC at 1:00 a.m. on December 2, 2001) to a formula, using average values of human anatomy, physiology, alcohol absorption and elimination rates, and mathematical statistics, to estimate an unknown value (Smith's BAC at the time of the accident, approximately 9:00 p.m. on December 1, 2001). This calculation formed the basis of her opinion that Smith's BAC would have been higher at the time of the accident than it was at the time his blood was drawn.
Id. at 317(¶ 21). The trial court allowed the State's expert to testify that Smith's BAC would have been higher at the time of the accident, but the court did not permit testimony estimating the percentage at the time of the accident. Id. at 317(¶ 24). The trial court also permitted competing testimony from a defense expert. Id. We found that the trial court properly exercised its gatekeeping function in the admission of the testimony by finding that the testimony was relevant, and it was based upon scientifically reliable facts, data, and methods. Id. at 318(¶ 26).
¶ 24. We find that there was no abuse of discretion in the admission of Hathcock's opinion that Lepine "possibly" was in the elimination phase. The fact that Hathcock testified to a "possibility" that Lepine was in the elimination phase did not render her testimony irrelevant and unreliable. Hathcock testified that based upon the two BAC values taken at 9:35 p.m. and 9:55 p.m., Lepine's body had begun eliminating alcohol. Hathcock qualified her opinion with the testimony that whether or not Lepine was in the elimination phase depended on whether he had eaten or drunk anything before his blood was drawn. Other trial testimony established that he had not consumed any food or beverage after the accident. Hathcock's testimony assisted the trier of fact in assessing the likelihood that Lepine's BAC was over the legal limit at the time of the accident. The "possibility" language did not render the conclusion unreliable. There was evidence supporting the trial court's finding that Hathcock's testimony was based upon sufficient scientific facts or data, which included: (1) the time of the accident, (2) the time of the two blood draws, and (3) the blood-alcohol levels of the two blood draws. Hathcock testified that this information, along with reasonable assumptions based upon the average man, was all that was needed to formulate her opinion that Lepine was in the elimination phase, depending on whether he had consumed food or had drunk anything after the accident.
¶ 25. Finally, we note that Hathcock's testimony that Lepine was in the elimination phase at the time of the blood draws was not substantially prejudicial in light of the fact that Lepine's BAC two hours after the accident was over the legal limit, and Lepine testified that he had not ingested *939 any alcohol since consuming beer that afternoon. Thus, there was evidence supporting the intoxication element of aggravated DUI even without the inference from the retrograde extrapolation testimony that his BAC was even higher at the time of the accident. This issue is without merit.
V. WHETHER THE TRIAL COURT ERRED IN FAILING TO QUALIFY A DEFENSE EXPERT.
¶ 26. The trial court found defense expert, Dr. Olen Brown, to be qualified in the area of toxicology, but unqualified to render an opinion about retrograde extrapolation. The ruling prevented Dr. Brown from testifying that Hathcock's calculations and opinions were unreliable and not scientifically sound. Lepine argues that the exclusion of Dr. Brown's testimony was error because he was, in fact, qualified. Lepine points to Dr. Brown's multiple certifications in toxicology from accrediting boards, to his publications, and to his testimony that he was familiar with the mechanism, process, and factors that go into retrograde extrapolation.
¶ 27. "The general standard of review for the admissibility of qualifications of an expert to testify to areas of scientific knowledge is abuse of discretion." Holland v. State, 705 So. 2d 307, 341 (¶ 127) (Miss.1997) (citing Hall v. State, 611 So. 2d 915, 918 (Miss.1992)). "The threshold question of whether a proposed expert witness has the requisite credentials to offer opinion evidence helpful to the jury, whether obtained through education or experience, lies with the trial court." Langdon v. State, 798 So. 2d 550, 555(¶ 10) (Miss.Ct.App.2001) (citing McBeath v. State, 739 So. 2d 451, 453-54 (¶ 9) (Miss.Ct.App.1999)).
¶ 28. During Dr. Brown's voir dire, he testified that he was a toxicologist who specialized in the effects of drugs, alcohol, chemicals, and diseases on the body. Dr. Brown had received three degrees from the University of Oklahoma: a bachelor's degree in laboratory technology, a master's degree in bacteriology, and a Ph.D. in microbiology. At the time of the trial, Dr. Brown had current certifications in toxicology from the American Board of Toxicology, in chemistry and chemical engineering from the American Institute of Chemists, and he had previously been certified in forensics by the American Board of Forensic Examiners. Dr. Brown had taught at the University of Missouri for over thirty years in various capacities, including the medical college, the veterinary college, the graduate school, and the cardiovascular research center.
¶ 29. Although Dr. Brown had never worked in a forensic laboratory specializing specifically in alcohol analysis nor testified in court as to retrograde extrapolation, he had been in charge, as a professor at the University of Missouri, of the chromatography laboratory, which is the type of laboratory that conducts the analysis of blood-alcohol samples. The trial court determined that Dr. Brown was not qualified because he had no "specificity in alcohol analysis.... He also stated that he has never analyzed blood-alcohol samples." The trial court recognized that he was board certified in "toxicology" but not in "forensic toxicology." The trial court refused to allow Dr. Brown to testify as to retrograde extrapolation of alcohol.
¶ 30. Reiterating Rule 702, a witness is "qualified as an expert by knowledge, skill, experience, training, or education" and may offer opinions if his or her "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue." However, the expert witness must limit such opinion testimony "to *940 matters within his demonstrated area of expertise." Cowart v. State, 910 So. 2d 726, 730(¶ 16) (Miss.Ct.App.2005) (quoting Gen. Motors Acceptance Corp. v. Baymon, 732 So. 2d 262, 272(¶ 49) (Miss.1999)). The content of the testimony must be relevant and reliable under the modified Daubert standard. See id. at 730(¶ 17).
¶ 31. Dr. Brown was clearly qualified to testify as an expert in the area of toxicology, including retrograde extrapolation of alcohol. Dr. Brown testified that he was "familiar with the mechanism, the process, and the factors that go into retrograde extrapolation," and his "experience was with extrapolating the concentration of substance in the human body" and the effect of various concentrations of drugs, including alcohol, have on the body. Dr. Brown further explained that the interaction of drugs in the human body varies with concentration and elimination from metabolism, absorption, and distribution which also make up the general principles of toxicology and are applicable to alcohol. The content of Dr. Brown's testimony would be reliable and relevant so as to meet the Daubert standard.
¶ 32. Although we find error in the trial court's exclusion of Dr. Brown's testimony, we must now determine whether this exclusion was reversible error or harmless error. To find reversible error, we must not only find that the trial court abused its discretion, but also that the exclusion of Dr. Brown's expert testimony caused Lepine prejudice or adversely affected Lepine's substantial rights. Fortune v. State, 766 So. 2d 827, 829(¶ 6) (Miss. Ct.App.2000). "An error is harmless only when it is apparent on the face of the record that a fair[-]minded jury could have arrived at no other verdict than that of guilty." Id. (quoting Bishop v. State, 761 So. 2d 894, 898(¶ 12) (Miss.Ct.App.2000)).
¶ 33. After a careful review of Dr. Brown's proffered testimony, it is apparent that, even if the trial court had allowed Dr. Brown to testify as an expert, Dr. Brown's expert testimony did not tend to exculpate Lepine. Dr. Brown essentially testified that it was "scientifically unreliable" to apply retrograde extrapolation to arrive at Lepine's precise BAC at the time Lepine lost control of his vehicle. Dr. Brown explained that the elimination rate or "the rate at which alcohol decreases in a body, in a person, can vary by as much as 400 percent." In other words, Dr. Brown testified that one could not reliably determine Lepine's BAC at the time of the incident without first determining a benchmark of the rate at which Lepine metabolizes alcohol. The exclusion of Dr. Brown's expert testimony would have prejudiced Lepine only if it tended to exculpate Lepine by demonstrating that his BAC was less than the legal limit at the time of the wreck.
¶ 34. Lepine took the stand after Dr. Brown's proffer and his testimony effectively rendered the exclusion of Dr. Brown's testimony harmless. Lepine claimed he had consumed three beers, but he had stopped drinking at approximately 3:30 p.m., two hours before Lepine began his return trip. Lepine testified that, during the return trip, he ate two hot dogs.
¶ 35. Lepine's blood was first drawn at 9:35 p.m.approximately two hours after he lost control of his vehicle and at least five hours after Lepine claimed to have consumed his last beer. Hathcock performed a BAC on that blood sample, and the results were .0972 and .0979. Lepine's blood was drawn twenty minutes later at 9:55. Hathcock performed a BAC test on the sample and the results were .0948 and.0915. According to Hathcock, an average person is in the "elimination phase" by the time his blood is drawn, meaning that Lepine was metabolizing alcohol or voiding it *941 through urine elimination, sweat, or breath. Hathcock stated that the BAC of a person in the elimination stage is lower than one's BAC at the time he stops drinking. Hathcock also testified that, to a scientific certainty, the average person is in the elimination phase within forty-five minutes of their last alcoholic drink.
¶ 36. Dr. Brown's proffered testimony tends to attack the credibility of Hathcock's retrograde extrapolation methodology, but it does not in any manner indicate that Lepine's BAC was below .08 at the time of the accident. The jury could only conclude that Lepine's BAC at the time of the wreck was greater than .08 because: (1) two hours after the incident, Lepine's BAC was greater than .09; (2) Lepine testified that he did not drink any alcohol within an hour or two before he began the return trip home; and (3) Lepine testified that he did not drink anything between the time of the accident and the time the blood samples were drawn. Based on Lepine's testimony that he did not consume any alcohol after approximately 3:30 p.m., no portion of Dr. Brown's testimony tended to infer that Lepine's BAC would have been below the legal limit of .08 at the time he lost control of his vehicle. Consequently, although the trial court erred in failing to qualify Dr. Brown as an expert, the error is harmless because Dr. Brown's proffered testimony did not prejudice Lepine or adversely affect his substantial rights.
VI. WHETHER THE TRIAL COURT ERRED IN DENYING LEPINE'S MOTION FOR A MISTRIAL FOLLOWING THE STATE'S DISREGARD OF THE TRIAL COURT'S RULING ON THE INADMISSIBLE ARGUMENT.
¶ 37. This issue concerns Lepine's motion for a mistrial. The issue arose when the State asked its accident reconstructionist, Sergeant James Kelly, if he was able to formulate the speed that Lepine was traveling at the time of the accident to a reasonable degree of certainty. Lepine objected arguing that the information was not contained in the officer's report that was disclosed to the defense.
¶ 38. The court discussed the matter in the presence of the jury. During the discussion, Sergeant Kelly informed the court that there were too many variables to make an accurate calculation of a particular speed. The prosecutor contended that Sergeant Kelly was only expected to testify as to whether Lepine exceeded the speed limit based on the distances the vehicle traveled in the accident, and he noted that these distances had been provided to Lepine in discovery. At this point, Lepine asked that the jury be excused and requested a mistrial based on the prosecutor's statement. The trial court concluded that because the testimony on speed was not in the report, it was inadmissible. The trial court denied the requested mistrial. Lepine waived admonishment of the jury to ignore the statements.
¶ 39. This Court will reverse the denial of a mistrial if there has been an abuse of discretion by the trial judge. Rollins v. State, 970 So. 2d 716, 720(¶ 10) (Miss.2007). A mistrial is not warranted every time the jury is exposed to inadmissible evidence. Reed v. State, 764 So. 2d 511, 514(¶ 12) (Miss.Ct.App.2000). The trial court may only grant a mistrial "when the harm done would render the defendant without hope of receiving a fair trial." Id. at 513(¶ 7). A mistrial is appropriate when misconduct by a party creates "substantial and irreparable prejudice." URCCC 3.12.
¶ 40. Lepine argues that he was entitled to a mistrial because the prosecutor's remark about distances insinuated to the jury that the State had proper evidence, but the defense sought to hide it from the *942 jury. In support of his argument, Lepine cites to Williams v. State, 539 So. 2d 1049, 1051 (Miss.1989), in which the trial court excluded a videotape that the State had neglected to provide to the defense in discovery. The prosecutor continued to move for introduction of the videotape in disregard of the trial court's ruling. Id. The supreme court found that the prosecutor's repeated references to the videotape were prejudicial and reversed and remanded for a new trial. Id. at 1052.
¶ 41. Williams is distinguishable from the instant case. In Williams, the State made repeated references to the already excluded evidence. Id. It was the State's repeated disregard for the trial court's ruling that led the supreme court to find that Williams was denied a fair trial. Id. In this case, the prosecutor made a single argument seeking to admit the testimony on the general speed of the vehicle. The supreme court in Williams stated that the prosecutor is allowed to argue the admissibility of proposed evidence without denying the defendant a fair trial. Id. at 1051. In this case, we find that the statement by the prosecutor was not so prejudicial that the trial court abused its discretion by denying a mistrial. Therefore, this issue is without merit.
VII. WHETHER THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE ON ALL OF THE ELEMENTS OF THE AGGRAVATED DUI, AND WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
¶ 42. Lepine challenges the weight and sufficiency of the evidence supporting his guilt of aggravated DUI under Mississippi Code Annotated section 63-11-30(5). In determining whether the evidence is sufficient to sustain a conviction, "the critical inquiry is whether the evidence shows `beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.'" Bush v. State, 895 So. 2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of a motion for a judgment notwithstanding the verdict. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). But if the facts and inferences, so considered, point in favor of the defendant on any element of the offense with sufficient force that no reasonable juror could have found guilt beyond a reasonable doubt, then we must reverse and render. Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss.1985)).
¶ 43. On review of the weight of the evidence, "we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. at 844(¶ 18). This Court takes the position of the thirteenth juror, meaning that we will reverse if, weighing the evidence in the light most favorable to the verdict, we "disagree[] with the jury's resolution of the conflicting testimony." Id. However, we will grant a new trial "only in exceptional cases in which the evidence preponderates heavily against the verdict." Id. (quoting Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 947(¶ 18) (Miss.2000)).
¶ 44. The statute proscribing aggravated DUI in effect at the time of Lepine's offense stated:
(5) Every person who operates any motor vehicle in violation of the provision of *943 subsection (1) of this section and who in a negligent manner causes the death of another ... shall, upon conviction, be guilty of a felony and shall be committed to the custody of the State Department of Corrections and for a period of time not less than five (5) years and not to exceed twenty-five (25) years.
Miss.Code Ann. § 63-11-30(5) (Rev.2002). Lepine argues that the State presented no evidence that he operated a motor vehicle in a negligent manner.
¶ 45. "[T]he State must prove that [a defendant] not only consumed alcohol prior to the accident, but that he performed a negligent act that caused the death of another." Joiner v. State, 835 So. 2d 42, 43-44(¶ 5) (Miss.2003) (citing Hedrick v. State, 637 So. 2d 834, 837-38 (Miss.1994)). "It has been made clear that § 63-11-30(5) `contains no requirement that the negligence has to be caused by the alcohol.'" Id. at 44(¶ 5) (citing Ware v. State, 790 So. 2d 201, 216(¶ 52) (Miss.Ct. App.2001)). Mississippi Code Annotated section 63-11-30(5) only requires simple negligencenot gross or culpable negligence. Holloman v. State, 656 So. 2d 1134, 1140 (Miss.1995). It is elementary in tort law that a person is negligent for failing to maintain control over the vehicle he is driving. Robertson v. Welch, 242 Miss. 110, 117, 134 So. 2d 491, 493 (1961).
¶ 46. Meaux testified that she saw Lepine's vehicle veer off the road, and she saw no other vehicles on the road in that area at the time of the accident. Viewing these facts in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Lepine operated his vehicle in a negligent manner. Furthermore, the evidence did not preponderate so heavily against the verdict that allowing the verdict to stand would sanction an unconscionable injustice. The evidence is also of such a nature that a reasonable trier of fact could have found, beyond a reasonable doubt, that all of the essential elements of the crime existed. Accordingly, the evidence, when viewed in the light most favorable to the State, was legally sufficient. This issue is without merit.
VIII. WHETHER THE TRIAL COURT GAVE AN ERRONEOUS JURY INSTRUCTION ON THE DUTY OF MOTOR VEHICLE OPERATORS.
¶ 47. In his final issue, Lepine argues that the trial court gave an erroneous jury instruction that misstated the law concerning the duty of motor vehicle operators. The jury instruction, S-5, stated: "The court instructs the jury that at all times a driver of a vehicle is required to maintain easy and reasonable control of his vehicle." Lepine argues that the instruction misstated the law because requiring that the operator maintain "easy" control results in someone being negligent when maintaining control of a vehicle, though with difficulty, as when traveling over an icy road. In other words, Lepine contends that including the word "easy" in the jury instruction would make it negligent for someone to have difficulty maintaining control over his vehicle, even if the difficulty was through no fault of his own.
¶ 48. The State contends that Lepine failed to preserve this issue for appeal. At the jury instruction conference, Lepine remained silent during the granting of the State's instructions. After two defense instructions were refused, Lepine's counsel stated:
I need to make some objections to the ones [jury instructions] that were granted on the State's behalf. Well, the defendant would object to the submission of any of the instructions provided by the State that referred to negligent acts *944 on his behalf, as there were no negligent acts proved.
This objection was a general objection to any of the State's jury instructions which referred to negligence. Lepine's ground for the objection to the negligence instructions was that they lacked evidentiary support because there was no proof that Lepine had committed any negligent acts. The law pertaining to objections to jury instructions is as follows:
Generally, when a jury instruction is offered at trial, it is the duty of the opposing party, in order to preserve the point for appeal, to state a contemporaneous objection in specific terms. Nunnally v. R.J. Reynolds Tobacco Co., 869 So. 2d 373, 378 (Miss.2004); Young v. Robinson, 538 So. 2d 781, 783 (Miss. 1989); see also Holifield v. State, 431 So. 2d 929, 930 (Miss.1983) (general objection to jury instruction does not suffice to preserve issue for appeal). Furthermore, on appeal a party may not argue that an instruction was erroneous for a reason other than the reason assigned on objection to the instruction at trial. Young, 538 So.2d at 783.
Irby v. State, 893 So. 2d 1042, 1047(¶ 17) (Miss.2004). Based on this precedent, we find this issue is procedurally barred.
¶ 49. Notwithstanding the procedural bar, we find that the jury instructions fairly and adequately state the law of negligence. On review of a challenge to a jury instruction, "[w]e will not find reversible error where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice." Ford, 975 So.2d at 864(¶ 11) (quoting Adkins v. Sanders, 871 So. 2d 732, 736(¶ 9) (Miss. 2004)). In Comby v. State, 901 So. 2d 1282, 1288(¶ 14) (Miss.Ct.App.2004), the trial court granted a jury instruction on negligence that contained the "easy and reasonable control" language. Comby challenged the instruction, claiming that it placed a higher standard of care on him by requiring him to maintain easy and reasonable control of his vehicle at all times. Id. at (¶ 15). We found no error in the granting of the instruction, stating:
Defects in specific instructions do not require reversal where all instructions taken as a whole fairlyalthough not perfectlyannounce the applicable primary rules of law. When taken as a whole, the instructions did not place a higher standard of care on Comby as a driver. The jury was adequately and properly instructed as to Comby's duty to drive in a reasonably safe manner.
Id. (internal citation and quotations omitted).
¶ 50. As in Comby, the jury instructions in this case, when read as a whole, show that the jury was adequately and properly instructed on the law of negligence. Besides the "easy and reasonable control" instruction, the jury was instructed that negligence was the failure to use reasonable care, defined as "that degree of care which a reasonably careful person would use under like or similar circumstances." The jury was further instructed that "negligence may consist either in doing something that a reasonably careful person would not do under like or similar circumstance or in failing to do something that a reasonably careful person would do under like or similar circumstance." We find that any defect in instruction S-5 created no error because the negligence instructions, when read as a whole, adequately instructed the jury on the standard of care applicable to Lepine. This issue is without merit.
¶ 51. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF AGGRAVATED DRIVING UNDER THE *945 INFLUENCE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED AND TO PAY $8,326 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ, CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.
NOTES
[1] In an earlier case, we described "retrograde extrapolation" as "the process of predicting an earlier unknown value by calculating a known later value with a series of generally used average values, and projecting that result back in time." Smith v. State, 942 So. 2d 308, 312(¶ 8) (Miss.Ct.App.2006).
[2] Mississippi Code Annotated 63-11-8(1) (Rev.2004) provides for a blood, breath, or urine test for determining drug or alcohol content to be performed on the operator of any motor vehicle involved in an accident that results in death. Any blood withdrawal should be performed within two hours after the accident, if possible. Id. No issue is raised on appeal concerning the timing of Lepine's blood withdrawal.
[3] Hathcock testified that a person is in the elimination phase when the person's body is metabolizing alcohol or voiding it through urine, sweat, or breath. Hathcock testified that the BAC of a person in the elimination phase would be lower than it had been at the time the person stopped drinking alcohol. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541577/ | 75 B.R. 322 (1987)
In re James D. MAIN and Sharon E. Main, Debtors.
James D. MAIN and Sharon E. Main, Plaintiffs,
v.
Carl F. BRIM and Ora Brim; and Continental Bank Trust Company, as Trustee of the Carl F. Brim Ira Rollover Trust, Defendants.
CONTINENTAL BANK TRUST COMPANY, Trustee of the Carl F. Brim Ira Rollover Trust, Movants,
v.
James D. MAIN and Sharon E. Main, Debtors-In-Possession, Respondents.
Bankruptcy No. B-86-1582-PHX-SSC, Adv. Nos. 86-406, B.
United States Bankruptcy Court, D. Arizona.
April 7, 1987.
*323 Mary K. Farrington-Lorch, Law Offices of James F. Kahn, Phoenix, Ariz., for debtors.
Paul Crane, Marvin Johnson, P.C., Phoenix, Ariz., for Continental Bank/Carl F. Brim, et al.
OPINION AND ORDER
SARAH SHARER CURLEY, Bankruptcy Judge.
On April 21, 1986, the Debtors in this consolidated adversary matter filed for relief under Title 11, United States Code, Chapter 11. On Schedule B-3 of their petition, the Debtors list an ownership interest in three parcels of real property having a reported aggregate value of $702,000. The subject properties are generally described as 5706 North Fourth Street, 315 East Montebello and 321 East Montebello, all located in Phoenix, Arizona. The first two properties are allegedly vacant land, while the latter property is alleged as the Debtors' residence. The only parties listed by the Debtors as having a security interest in the three parcels of real property are CARL F. BRIM ROLLOVER TRUST and CONTINENTAL BANK, the parties which are the Defendants/Movants to this consolidated adversary proceeding (the "Brim Entities"). On their statement of Affairs, Question 13, Debtors report that they owe the Brim Entities the sum of $450,000 on an installment basis.
On January 21, 1986, the Brim Entities executed a legal document entitled "Warranty Deed in Lieu of Foreclosure" which, by its terms, purported to convey all three parcels of the Debtors' real property to the Brim Entities. As stated above, the bankruptcy subsequently ensued. On July 29, 1986, the Brim Entities filed a motion for relief from the automatic stay to proceed in a forcible entry and detainer action against the Debtors. This stay relief motion was set up as an adversary action and designated Adversary "B."
On July 30, 1986, the Debtors filed a complaint against the Brim Entities to set aside the transfer and compel turnover of certain property. This complaint was designated Adversary Action 86-406-SSC. Upon motion of the Debtors, Adversary 86-406-SSC and Adversary "B" were consolidated by order dated October 21, 1986.
In Adversary "B," the Brim Entities contend that pursuant to the warranty deed executed between the parties dated January 21, 1986, the Debtors' continued possession of the residence located at 321 East Montebello, Phoenix, Arizona, is a wrongful possession of the Brim Entities' property. In Adversary Action 86-406-SSC, Debtors seek recovery of the property identified as 321 East Montebello, Phoenix, Arizona, under the alternative theories that the January 21 transfer by warranty deed is either a fraudulent conveyance pursuant to 11 U.S.C. § 548 or a preferential transfer pursuant to 11 U.S.C. § 547. The Debtors allege that the transfer of $702,000 worth of real property in exchange and extinguishment of a $450,000 debt allows the Brim Entities to receive more than they would have if the case were filed under *324 Chapter 7 of Title 11 (11 U.S.C. § 547). The Debtors additionally allege that they did not receive reasonably equivalent value for the transfer (11 U.S.C. § 548).
On September 2, 1986, the Brim Entities filed a motion to dismiss Adversary 86-406-SSC pursuant to Fed.R.Bankr.P. 7012(b) and Fed R.Civ.P. 12(b)(6) on the grounds that Debtors' complaint failed to state a claim upon which relief could be granted. Citing Madrid v. Lawyers Title Insurance Corp. (In re Madrid), 725 F.2d 1197 (9th Cir.), cert. denied, 469 U.S. 833, 105 S.Ct. 125, 83 L.Ed. 66 (1984), the Brim Entities affirmatively state that as a matter of law, this court must dismiss the instant adversary complaint. At oral argument on the motion to dismiss, all parties agreed that a decision on the motion could very well be dispositive of the motion to vacate the stay. All further proceedings in this consolidated adversary were held in abeyance pending a decision by this Court, except that the parties were permitted jointly or separately to market for sale the three parcels of real property and seek court approval of any potential offers.
At oral argument on the motion to dismiss and as alleged in all of the pleadings in this consolidated matter, a dispute exists between the parties as to what transpired at the time the Debtors executed their January 21 warranty deed in lieu of foreclosure. The Debtors stated that at the time of execution of the deed, they entered into an oral joint venture arrangement or agreement with the Brim Entities that provided the Debtors could continue to reside at 321 East Montebello and share in the profits to be derived from completing the construction of a home on each of the three parcels, and sale thereof, in exchange for the Debtors completing construction of the home on the 321 East Montebello parcel, developing the two vacant parcels with residences suitable for the area, marketing all three parcels for sale to the general public, and paying rent of $2,000 per month as to the 321 East Montebello residence for the period of the joint venture agreement, with the rent to be paid solely from the proceeds to be received from the sale of said residence. The Brim Entities, however, stated that there was no oral joint venture agreement or arrangement, that the Debtors were to remain at the 321 East Montebello residence for a limited period of time while the property was on the market for sale, and that the Debtors were to pay rent pursuant to an oral agreement in the sum of $2,000 per month at the beginning of each month that they continued to reside at the house.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(a) and 28 U.S.C. § 157(a). The Court finds that these consolidated adversary proceedings are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(E), (F), (G) and (H).
In ruling on this motion to dismiss, the Court shall address the following issues:
I. Whether a deed in lieu of foreclosure constitutes a "transfer" within the parameters of § 548 or § 547 of the Bankruptcy Code.
II. If this Court should determine that a "transfer" has occurred, by distinguishing the facts and law from the Madrid case, whether a deed in lieu of foreclosure constitutes "reasonably equivalent value" as a matter of law.
III. Whether the Debtors' complaint fails to state a claim that under any foreseeable set of facts would allow the relief requested, so that the motion to dismiss by the Brim Entities should be granted.
DISCUSSION
The threshold issue for consideration by this Court is whether the Debtors conveyed an interest in any property at the time that they conveyed the three parcels of real property to the Brim Entities pursuant to the January 21 warranty deed. The elements of a fraudulent transfer under Section 548 of the Bankruptcy Code require that such a "transfer" occur. In the Madrid decision of the Ninth Circuit, supra, the court held that the obtainment and perfection of a security interest under state law was the only "transfer" that occurred. The subsequent foreclosure of that security interest through a sale was not deemed a "transfer." Although the Ninth Circuit *325 reversed the Bankruptcy Appellate Panel decision in Madrid,[1] the Bankruptcy Appellate Panel essentially had attempted to go a step further by finding that although a transfer may have occurred for purposes of Section 548, another essential element of that Section required that the Debtor not receive "reasonably equivalent value." The Bankruptcy Appellate Panel found as a matter of law that a noncollusive, regularly conducted, nonjudicial foreclosure sale established reasonably equivalent value for purposes of Section 548. A number of courts subsequently followed the Ninth Circuit Madrid analysis, believing that the more narrow definition of transfer under Section 548 was appropriate. The courts generally held that the foreclosure sale was an involuntary conveyance triggered by the debtor's failure to comply with the terms and conditions of the underlying mortgage note or the agreement serving as security for said note, thereby resulting in the involuntary transfer back to the secured creditor of the debtor's interest in certain real property. Although the concept of "transfer" has arguably always been very broadly defined under Section 548, the courts following the Ninth Circuit Madrid decision have adopted the position that an involuntary transfer through a foreclosure sale is somehow not contemplated. See In re William, 39 B.R. 678 (D.Minn.1984); In re Strauser, 40 B.R. 868 (Bankr.N.D.Ohio 1984).
A dichotomy in the Circuits was created after the rendering of the Madrid decision. Previously in Durrett v. Washington Nat'l Ins. Co.,[2] the Fifth Circuit held that the definition of transfer under the prior Bankruptcy Law included voluntary and involuntary transfers of the debtor's interest in real property and that the debtor's loss or foreclosure of its equity of redemption on the eve of bankruptcy should be scrutinized as closely as any voluntary transfer. The Fifth Circuit continued to follow this concept of involuntary transfers as fraudulent conveyances in the subsequent decision of Abramson v. Lakewood Bank & Trust Co.[3] In Abramson, however, Judge Clark noted a vigorous dissent, recognizing that such decisions as Durrett and its progeny were beginning to cast a cloud upon the finality of all nonjudicial foreclosure sales, which might from a policy standpoint be inappropriate. Without finality, prices could be depressed further at foreclosure sale, and inhibit third parties from bidding at such sales.[4]
The Debtors in this proceeding, however, filed their Chapter 11 petition after the effective date of the Bankruptcy Amendments and Federal Judgeship Act of 1984 ("BAFJA"). Whether Congress acted intentionally or inadvertently to overrule the Ninth Circuit decision of Madrid is not dispositive of the issues now before this Court. The effect of BAFJA as to Sections 548 and 101(48) of the Code is to overrule Madrid.[5]In re Verna, 58 B.R. 246, 250-51 (Bankr.C.D.Cal.1986); In re Bundles, 61 B.R. 929 (Bankr.S.D.Ind.1986).
*326 This Court is not stating or implying that the initial obtainment and perfection of the security interest is now subject to avoidance under Section 548. The time and method of perfection of an interest in real property is determined pursuant to state law. Ninth Circuit Madrid decision, supra at 1200; Evans v. Valley West Shopping Ctr., Inc., 567 F.2d 358, 360 (9th Cir.1978). Under Arizona law, the Brim Entities obtained a lien on the subject real property initially as security for the repayment of the indebtedness due and owing by the Debtors. The Brim Entities utilized a deed of trust as the mechanism to obtain the lien. A.R.S. §§ 33-401, et seq.; A.R.S. §§ 33-801, et seq. However, with the revision of Sections 548 and 101(48), all transfers within the applicable time period must be examined by this Court. When the lien was obtained and perfected is not the only relevant transfer to be examined. This Court finds that the January 21 warranty deed is a "transfer" within the parameters of Section 548.
Whether the other elements under Section 548 have been met shall be left for an evidentiary hearing before this Court. At oral argument, the Brim Entities stated that the January 21 warranty deed should be considered a "deed in lieu of foreclosure," and an appropriate method to foreclose the Debtors' interest in the subject property under Arizona law.
Under Arizona law, a deed in lieu of foreclosure is not a creature of statute, but is an accord and satisfaction. Bickart v. Greater Arizona Savings & Loan Ass'n, 103 Ariz. 166, 438 P.2d 403 (1968); Martino v. Frumkin, 11 Ariz.App. 160, 462 P.2d 853, 857 (1969). An oral agreement is sufficient to satisfy a written obligation. Western Savings & Loan v. Diamond Lazy K Ranch, 18 Ariz.App. 256, 501 P.2d 432, 439 (1972). The Debtors have alleged that an oral agreement in the nature of a joint venture was entered into with the Brim Entities, whereby the Debtors would finish construction of the residence in which they lived, assist in the development of the two parcels of vacant land, and market all of the subject real property for sale. In return, at the time of sale, the Debtors allegedly were to pay, in one lump sum payment, rent for the period of time in which they resided in the residence and share in the net proceeds received from the sale of the real property after deduction of all expenses associated therewith, including the rent. An open issue is whether the Debtors may introduce evidence as to the oral joint venture agreement. The parol evidence rule would prohibit the introduction of such evidence, unless "an ambiguity exists on the face of the document or the language admits of differing interpretation . . ." Standage Ventures, Inc. v. State, 114 Ariz. 480, 562 P.2d 360, 362 (1977). However, the parties have not had an opportunity to brief this legal issue. Moreover, this Court should hold an evidentiary hearing on this matter at a minimum to determine whether the Debtors received reasonably equivalent value at the time they transferred the equity, if any, in the subject real property in satisfaction of the indebtedness due and owing by them to the Brim Entities.
To the extent that the Debtors have urged this Court to consider a potential claim against the Brim Entities pursuant to Section 547 of the Bankruptcy Code, such a matter will also be set for an evidentiary hearing. The enforcement of a lien by a fully secured creditor on the eve of bankruptcy has been held in numerous cases not to be a preferential transfer. e.g. In re Santoro Excavating, Inc., 10 B.C.D. 1369, 32 B.R. 947 (Bankr.S.D.N.Y. 1983); In re Hale, 8 B.C.D. 434, 15 B.R. 565 (Bankr.N.D.Ohio 1981); In re Conn, 9 B.R. 431 (Bankr.N.D.Ohio 1981). Although the Ninth Circuit Madrid court, in dicta, stated that Section 547 was inapplicable to foreclosure sales because no transfer had occurred, a review of the cases would indicate that it was because creditors with fully secured claims did not receive more than they would under a Chapter 7 liquidation if the transfer had not been made, and if such creditor had received payments pursuant to the provisions of Chapter 7. Santoro, supra; Hale, supra. The fully secured creditor would always retain its right to foreclose. However, it has also *327 been held that to the extent a creditor has a partially secured and unsecured claim and receives payments on that claim within the ninety-day period prior to the filing of the bankruptcy petition, any payment received by said creditor must first be charged to the unsecured portion of the claim. Such a procedure would probably dictate that a creditor in most cases would receive more than it would under Chapter 7 of the Code. Barash v. Public Finance Corp. (In re Barash), 658 F.2d 504 (7th Cir.1981). A motion to dismiss is not the appropriate procedure to determine whether the Brim Entities are a fully secured creditor. What is ironic is that the Brim Entities have argued that the subject real property does not have the value ascribed to it by the Debtors. That may very well be true. However, to the extent that the collateral is worth substantially less, it only gives merit to the Debtors' allegations that a preferential transfer has occurred. This Court finds that a transfer has occurred within the parameters of Section 547 of the Bankruptcy Code, and that an evidentiary hearing must be scheduled to determine whether the other elements of a preferential transfer have been met.
Another argument urged by the Brim Entities is that even if a transfer has occurred, the Debtors received reasonably equivalent value at the time of the January 21 warranty deed. This Court believes that it can summarily dispose of this issue at this time. Although not stated in the Ninth Circuit Madrid decision, this Court believes that the Ninth Circuit was concerned about setting aside a foreclosure sale to a third party concerning a valid lien that had already been enforced. Essentially the Court was asked to set aside the sale to a bona fide purchaser that had occurred prior to the commencement of the bankruptcy proceedings. Moreover, the Bankruptcy Appellate Panel Madrid decision was also concerned about the rights of third parties, which prompted that court to hold as a matter of law that regularly conducted, noncollusive foreclosure sales should be deemed reasonably equivalent value received by the debtor and, hence, not a fraudulent conveyance. In this proceeding, however, no third parties were given an opportunity to bid on the real property, and the Debtors were not afforded the opportunity to obtain the highest possible offer or bid for the real property. Without that opportunity to bid at a noncollusive, regularly conducted foreclose sale or an evidentiary hearing to determine the value of the property at the time of the transfer as a result of an evidentiary hearing, this Court will not conclude as a matter of law that reasonably equivalent value has been received by the Debtors. If the Debtors prove their allegations that a joint venture existed between the Debtors and the Brim Entities, the Brim Entities will have the responsibility to account to the Debtors for their actions and to maximize the sale of the subject real property, since as joint venturers, the Brim Entities will be deemed acting in a fiduciary capacity. In effect, this claim as to a joint venture may afford the Debtors an additional theory upon which to recover if that fiduciary duty to account or maximize the proceeds from the sale of the real property has been breached. Sparks v. Republic National Life Insurance Company, 132 Ariz. 529, 647 P.2d 1127, cert. denied 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed. 632 (1982).
Boddicker v. Arizona State Dental Ass'n, 549 F.2d 626, 632 (9th Cir.1977), dictates that a complaint not be dismissed for a failure to state a claim upon which relief may be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (Quoting Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976)). Based upon the foregoing analysis, it is possible at an evidentiary hearing that the Debtors will prove their case by a preponderance of the evidence. A motion to dismiss is, therefore, improvident.
IT IS, THEREFORE, ORDERED that the Brim Entities' motion to dismiss is denied.
Pursuant to Fed.R.Civ.P. 52, as adopted by Fed.R.Bankr.P. 7052, this Opinion and Order shall constitute findings of fact and *328 conclusions of law in support of this decision.
NOTES
[1] In re Madrid, 21 B.R. 424 (Bankr. 9th Cir. 1982).
[2] (In Re Durrett), 621 F.2d 201 (5th Cir.1980).
[3] 647 F.2d 547 (5th Cir.1981), cert. denied 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1982).
[4] This Court could discuss at length the case law that developed under the Bankruptcy Code in support of the Durrett analysis. Generally the courts held that Section 548(d)(1) defined transfer for purposes of when a transfer might occur. However, the concept of transfer was broad-based, and a debtor's interest in real property might involve a series of transfers. Prior to the effective date of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Section 548(a) had read "The trustee may avoid any transfer (emphasis added) of an interest of the debtor in property . . ." See Hulm v. First Federal Savings (In re Hulm), 738 F.2d 323, 325 (8th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 398, 83 L.Ed.2d 331 (1984).
[5] At oral argument on this matter, counsel for the Brim Entities relied on Matter of Winshall Settlor's Trust, 785 F.2d 1136 (6th Cir.1985) as further support for its argument that no transfer had occurred under Section 548. However, this Court believes that Section 548(d)(1) of the Code is not the dispositive provision as to whether a transfer has occurred; rather, Sections 101(48) and 548(a) of the Code must be analyzed. In any event, the Winshall court was primarily focusing on whether a regularly conducted, nonjudicial foreclosure sale should be set aside on the basis that reasonably equivalent value had not been received. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541589/ | 75 B.R. 121 (1987)
In re Remi E. MONFORTON and Betty Jo Monforton, Debtors.
Bankruptcy No. 87-20066.
United States Bankruptcy Court, D. Montana.
June 17, 1987.
*122 Daniel R. Sweeney, Butte, Mont., for debtors.
Malcolm Goodrich, Billings, Mont., for FLB.
Dunlap & Caughlan, Butte, Mont., Trustee.
ORDER
JOHN L. PETERSON, Bankruptcy Judge.
At Butte in said District this 17th day of June, 1987.
In this Chapter 12 case, The Federal Land Bank of Spokane (FLB-S) has filed a motion seeking an order of this court for relief of the automatic stay to allow the Sheriff of Jefferson County, Montana, to issue a sheriff's deed to real property sold at foreclosure sale on February 2, 1986, and purchased by FLB-S. In the same motion, Federal Land Bank of Minnesota (FLB-M) seeks dismissal of this Chapter 12 petition in the event the court rules favorably for FLB-S on the grounds the Debtors would not be family farmers as that term is defined in 11 U.S.C. 101(17). Both parties have filed briefs in support of their respective positions.
The facts are not in dispute. On February 4, 1986, FLB-S purchased at sheriff's sale real property of the Debtors located in portions of Sec. 19, T. 2 N., R 2 W and Sections 2, 3, 4, 5, 10, 11 and 12, T 2 N, R 3 W, P.P.M., Jefferson County, Montana. FLB-S had held the first mortgage on the property which went into default and resulted in a state court decree of foreclosure. Under Montana law, Section 25-13-802, MCA, Debtors have a year of right of redemption before the expiration of which time the Debtors may redeem the real property by paying the purchaser (FLB-S) the total amount of the purchase price plus interest and taxes. If no redemption is made within the one year period, the purchaser is then entitled to a sheriff's deed to the property. § 25-13-810 and 811, MCA. In the case sub judice, the expiration of the one year redemption period was intercepted by the filing of the present Chapter 12 case by the Debtors on February 6, 1987, two days before the period of redemption had expired. From this status, the Debtors now seek to restructure the FLB-S note and mortgage, thereby effectively annulling the foreclosure decree and sale, and keeping the Debtors in possession of the real property in the event of confirmation of the Chapter 12 Plan.
*123 While the Debtors argue to the contrary, the case of In re Liddle, 75 B.R. 41 4 Mont.B.R. 253 (Bankr.Mont.1987) governs the decision of this case. In Liddle, as in this case, the Debtors filed a Chapter 12 petition six days before expiration of the period of redemption. After discussing the various case authorities involving sections 108(b) and 362 of the Bankruptcy Code, on the tolling of the period of redemption, this court held:
"I conclude that the redemption right of the Debtors passed to the estate under § 541, and such right was extended 60 days from the date of the filing of the bankruptcy petition, namely to February 28, 1987, under section 108(b) of the Code. Performance under Montana law sufficient to redeem the property had to be made by the Debtors by February 28, 1987, and if not made, as is the case here, the conditional interest of the Debtors and their bankruptcy estate terminated on February 28, 1987. Accordingly, the FLB is entitled to relief from the automatic stay to conclude the foreclosure process."
I see no valid reason advanced by the Debtors to reverse or distinguish the Liddle holding in this case. Here, the period of redemption under Section 108(b) expired April 5, 1987, being the 60th day after the filing of the petition. By that date, a Chapter 12 plan had not been filed. Had a plan been promptly filed after the Chapter 12 petition, and a hearing on confirmation held by April 5. 1987, which would clearly be possible under the Code,[1] the Debtors could have been in position under section 1222(b)(2), (5) and (9) to propose a restructure of the FLB debt pursuant to § 1225(a)(5). Once the 60 day period expired, however, without this court having an opportunity to conduct a confirmation hearing on the plan before the end of the 60 day period, the Debtors lose all available rights to the property. In otherwords, the Debtors were charged with knowledge that their time to seek redress on their redemption right is governed by Section 108(b), and had the Debtors sought rehabilitation of that right through prompt filing of their plan and request for expedited action, their prospect of reorganization under Chapter 12 may have been possible. That is exactly what I held in Liddle, citing In re Ivory, 32 B.R. 788, (Bankr.Or.1983), when I stated that "I do not decide in this case the issue of the right to cure or modify a mortgage after foreclosure sale but before the expiration of the period of redemption as discussed in the Ivory case, supra." Id. at 43. Section 108(b) and Liddle govern the result in this case as the issues are framed by the parties.[2]
As to the motion of FLB-M to dismiss this proceeding, no evidentary hearing on that motion has been held, although the Debtors seem to indicate that an adverse ruling on the FLB-S motion would cause the Debtors to dismiss the case. Without an opportunity to a hearing on dismissal, *124 decision of the FLB-M motion is premature.
IT IS ORDERED the Motion of Federal Land Bank of Spokane for relief from the automatic stay to allow the Sheriff of Jefferson County, Montana, to issue a sheriff's deed is granted.
NOTES
[1] The plan in this case was filed May 4, 1987, and hearing on confirmation was set for June 2, 1987, or within 30 days of the plan filing.
[2] No issue was raised by the Debtors that the right of redemption is an executory contract (or an unexpired lease) as that term is used in section 365 of the Code. If indeed, the right of redemption somehow places the Debtors into section 365 (an issue I do not decide), then under Moody v. Amoco Oil Co., 734 F.2d 1200, 1212, 1215-16 (7th Cir., 1984), Section 108(b) would not be applicable. Moody holds:
"Section 365 of the Code only gives a Debtor the right to assume an executory contract. If a contract has been terminated pre-bankruptcy, there is nothing left for the Debtor to assume. However, termination must be complete and not subject to reversal, either under the terms of the contract or under state law. L. King, 2 Collier on Bankruptcy, § 365.03 (15th Ed., 1979); see In re Fontainbleau Hotel Corp., 515 F2d 913 (5th Cir., 1975).
* * * * * *
We hold, however, that Section 108(b) does not apply to curing defaults in executory contracts."
It is arguable that assumption of the contract to redeem the property as allowed by state law is permissible under Section 365(d)(2) by restructure of the debt under 1222(b)(2), (5) (6) and (9). Such issue has not been raised in this case, nor was it considered in cases cited in Liddle. Moody does apply § 365 to executory contract and thus distinguishes cases such Johnson v. First National Bank of Montevideo, 719 F.2d 270 (8th Cir. 983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245. See also In re Santa Fe Development Co., 16 B.R. 165 (BAP 9th Cir., 1981) (concurring opinion). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541602/ | 75 B.R. 774 (1987)
In re FREDERICK PETROLEUM CORPORATION, Debtor.
Bankruptcy No. 2-85-00741.
United States Bankruptcy Court, S.D. Ohio, E.D.
April 17, 1987.
*775 *776 James S. Huggins, Marietta, Ohio, for SEOR, Inc., trustee.
Ward D. Coffman, Zanesville, Ohio, for Paul V. Jones, trustee.
Thomas E. Lodge, Thompson, Hine and Flory, Columbus, Ohio, for Glenda Exploration and Development Corp.
John P. Brody, Emens, Hurd, Kegler & Ritter, Columbus, Ohio, for The Benatty Corp.
E. James Hopple, Schottenstein, Zox & Dunn, Columbus, Ohio, for Official Unsecured Creditors' Committee.
Thomas R. Lloyd, Cambridge, Ohio, for debtor.
H. Jeffrey Schwartzberg, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, for B & N Coal Co., Inc.
ORDER DENYING FIRST AMENDED JOINT MOTION OF PAUL V. JONES, TRUSTEE FOR FREDERICK PETROLEUM, AND SEOR, INC., TRUSTEE, TO REPLACE OPERATOR, EMPLOY SEOR, INC., TRUSTEE, AS A NEW OPERATOR, FOR MODIFICATION OF THE JUNE 5, 1985 CASH COLLATERAL ORDER, AND JULY 24, 1986 AMENDMENT THERETO, FOR APPROVAL OF TRANSFERS OF PROPERTY UNDER 11 U.S.C. § 363(C)(1), AND FOR RELATED RELIEF
B.J. SELLERS, Bankruptcy Judge.
This matter is before the Court upon a First Amended Joint Motion ("the Motion") filed by Paul V. Jones, the duly-appointed trustee in this Chapter 11 case ("the Trustee"), and SEOR, Inc., Trustee ("SEOR"). The Motion, which was opposed by B & N Coal, Inc. ("B & N"), Glenda Exploration & Development Corporation ("GEDCO"), and The Benatty Corporation ("Benatty"), seeks to replace Benatty as the operator of certain of the debtor's oil and gas wells, to have this Court authorize the employment of SEOR as an operator of all the debtor's oil and gas properties and its pipeline, to modify the cash collateral order entered on June 5, 1985 and amended on July 24, 1986, and to obtain approval for contemplated future transfers of property of this estate without additional notice and opportunity for hearing. The Motion was heard by the Court in Zanesville, Ohio on February 20, 1987 and, on a continued basis, on March 12, 1987.
At the continued hearing on March 12th, Benatty represented to the Court that a settlement had been reached relating to the portion of the motion seeking Benatty's removal. Essentially, Benatty and SEOR will be parties to an agreement with the Trustee which will permit Benatty to resign as operator without admission that *777 any cause for removal may exist. That agreement also will include certain safeguards for the Trustee and the estate. Once that agreement has been executed, the Trustee will notice its terms to all appropriate parties, and upon its approval by the Court as required by Bankruptcy Rule 9019, SEOR and the Trustee will withdraw the portion of the Motion relating to Benatty's removal. Accordingly, that requested relief will not be considered by the Court at this time.
Matters remaining for determination by the Court include SEOR's qualification to act as operator for the pipeline and wells for which this debtor has operational rights; certain legal issues emanating from that employment request, including those raised by objectors B & N and GEDCO; the appropriateness of the provisions sought to be included as modifications of the existing cash collateral order, and the notice required for certain "farm-out" transfers of property of this estate. For reasons stated below, the Court finds that SEOR's employment under the presently proposed terms and the proposed procedure for future "farm-out" arrangements are inconsistent with the requirements of the Bankruptcy Code.
The terms of SEOR's proposed employment are embodied in a Pipeline and Well Operating Agreement (the "Agreement"). Highlights of the Agreement provide that, as an independent contractor, SEOR, on behalf of the Trustee, shall:
1. have the right to operate the debtor's pipeline and all wells in which the debtor has operational rights either by virtue of ownership or agreement;
2. determine in SEOR's own discretion, subject to industry standards, how SEOR will perform and what actions it will take with regard to the operations, with liability only for negligence or breach of the Agreement;
3. report periodically to the Trustee and the Court regarding its operations;
4. request the advice and consent of the Trustee for significant issues and actions which are out of the ordinary;
5. refrain from certain actions upon request of the Trustee;
6. analyze and determine the economic feasibility of efforts needed to place wells into production or to improve production of currently marginal wells or the pipeline with the discretion to undertake projects requiring expenditures up to $3000;
7. have no obligation to advance monies for remedial measures or otherwise effect the operation of particular wells unless SEOR feels such expenses are justified;
8. have no right to plug and abandon wells;
9. formulate, negotiate, implement, and receive a 5% commission fee for "farm-out" or other asset transfer arrangements, including solicitation of investment funds from third parties other than affiliates of SEOR, subject only to approval by the Trustee;
10. receive compensation, in addition to the "farm-out" brokerage fee, of $225 from the proceeds of each well operated for each month of operation and $0.04 for each mcf of gas transported through the pipeline pursuant to gas transportation agreements;
11. collect its expenses not included in the monthly fee from the current and future revenue of the associated well or the pipeline, or in the case of well expenses, if insufficient, from the current and future net revenue of other wells having common individual working interest owners or, if a well has negative net revenue, from non-debtor interests in that well or from the debtor's surplus from interests in other wells or pipeline revenues;
12. have the right to assert an administrative priority expense claim for compensable expenses in excess of *778 total gross revenues credited to the debtor;
13. forward $35 each month to the Trustee from the proceeds of each well SEOR operates in which the estate has an interest and which has available net revenues, after payment of operating expenses; payments to other producers selling gas through the pipeline; severance, compression, and personal property taxes; and SEOR's compensation;
14. obtain defined risk insurance and comply with applicable laws and regulations for wells actually operated;
15. collect, record and distribute proceeds from sales of gas and oil in a predetermined order with the right to negotiate and otherwise contract for such sales; and
16. subcontract to others, including affiliates of SEOR, any activities required for well or pipeline operation.
The objections to SEOR's employment relate not to its ability or experience in the area of well and pipeline operations which the Court finds were established by uncontested evidence, but rather challenge the appropriateness of SEOR's employment given its status in this case, question the scope of the Agreement's delegation of the Trustee's functions to SEOR, and argue for additional protections for the estate should SEOR's employment be authorized.
SEOR's role in this case is multi-faceted. As assignee of the pre-petition claim and lien position of Texas American Bank ("TAB"), SEOR apparently holds the largest secured claim against this estate. The asserted security for its claim includes mortgages and security interests against various well and lease interests, pipelines, production royalties, equipment, fixtures, and other property of the estate. SEOR's lien claim also includes a purported interest in all production generated from the debtor's wells on and after December 1, 1986. Examination of SEOR's total claim, asserted in a principal amount of $6,350,196.89 as of March 15, 1985, and comparison of that amount claimed with the estimated value of $500,000 ascribed to the properties against which its liens relate, compel a finding that SEOR holds a substantial unsecured claim against this estate. Although the amount SEOR paid TAB for the assignment of its claim is not known, SEOR has conceded that the purchase price was deeply discounted from the face amount of the claim. SEOR also has expressed potential interest in proposing a plan of reorganization, if in its discretion, its operations of the estate properties indicate that acquisition of this company would be economically justified.
The Court also notes that this Chapter 11 case has been pending since March 15, 1985, a date now two years past. Although an operating Trustee was appointed on May 29, 1985, it is generally agreed that the Trustee is not experienced in oil and gas matters, and that he has not been able to generate unliened cash for development of the debtor's assets or expansion of its operations. Nor has he been able to locate an entity with a present interest in acquiring the debtor or otherwise proposing a plan of reorganization. Moreover, while the estate apparently has potential causes of action relating to transfers to and from insiders, there are many title inconsistencies clouding the estate's ownership of the various working interests in oil and gas leases which serve as the basis for the debtor's drilling and well operations.
The objectors first assert that SEOR is required to qualify as a "professional person" as that term is used in 11 U.S.C. § 327 before it can be employed as operator. The objectors contend that the scope of SEOR's responsibilities under the Agreement makes its function that of a professional person. Since SEOR, as a secured creditor and potential plan proponent, has an interest adverse to the estate and is an "interested person" within the proscription of § 327(a), which is not excepted from that requirement by § 327(c), B & N and GEDCO maintain that SEOR cannot be appointed under the terms of the Agreement.
Section 327(a) of the Bankruptcy Code sets forth requirements for the employment *779 of "professional persons" as follows:
(a) Except as otherwise provided in this section, the trustee, with the court's approval, may employ . . . other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title.
"Disinterested person," as specifically defined by 11 U.S.C. § 101(13)(A), is "a person that is not a creditor". Therefore, it is clear that SEOR, as the holder of secured and unsecured claims against this estate, cannot so qualify. Furthermore, to the extent the values of the debtor's properties subject to SEOR's asserted liens increase as a result of SEOR's operations of debtor's pipeline and wells, those increased values, as of the effective date of the confirmation of any plan of reorganization, may accrue to the benefit of SEOR's secured claim rather than to the benefit of the estate. Realistically, should SEOR's lien position be unassailable, it is hard to see how the most proficient operations could result in direct benefit to unsecured creditors of this estate given the exceedingly large disparity between SEOR's total claim and the present estimated value of the debtor's assets.
Another matter which causes this Court to scrutinize strictly the proposed appointment is the potentially chilling effect such appointment may have upon the Trustee's ability to exercise independent judgment regarding the appropriateness or feasibility of challenging SEOR's lien position once SEOR is employed as the "operating arm" and vested with substantial discretion in the utilization and development of the debtor's resources. Although no such indication has been presented to the Court, the proposed appointment also presents opportunity for SEOR to direct the debtor's operations in a manner which best benefits those liens.
On the other hand, to the extent improved operations increase production of the wells, there will be benefits to other parties in interest such as landowners, royalty and working interest owners. If production is greatly increased, it also follows that any potential plan proponent may be forced or be willing to increase its bid for the debtor's assets. As a practical matter, any such augmented price would be expected to result in a higher dividend for unsecured creditors, and thereby can be seen as a benefit to the estate.
Apart from those matters, and recognizing that SEOR cannot qualify for appointment by this Court as a professional person, the Court must determine if SEOR falls within that definition such that § 327(a) prohibits its employment. Should the Court decide that SEOR is not a professional person under the Agreement as proposed, the issue remains as to whether its obvious adverse interests and multiple positions in this case nevertheless make its appointment inadvisable or inappropriate.
Although "professional person" is not defined by the Bankruptcy Code, the scope of that term has been discussed in a number of cases. Persons who offer services normally performed by professionals, such as appraisers or management consultants, have been designated as professionals, while persons who are involved in the mechanics of a debtor's business have been found not to be within that category of persons. In re Carolina Sales Corp., 45 B.R. 750 (Bankr.E.D.N.C.1985); U.S. ex rel. Kraft v. Aetna Casualty & Surety Co., 43 B.R. 119 (M.D.Tenn.1984). Factors considered by the courts involve not only the nature of the services performed, but also the effect of such person's services upon the administration of the bankruptcy case, and how central that role is to the reorganization proceedings. In the Matter of Seatrain Lines, Inc., 13 B.R. 980 (Bankr.S.D.N.Y.1981); In re Johns-Manville Corp., 60 B.R. 612, (Bankr.S.D.N.Y. 1986). If the person seeking to be appointed as a trustee's agent actually impacts upon the administration of the debtor's estate, that person may be a professional person regardless of the label given to its function. Johns-Manville, 60 B.R. at 620.
*780 This Court believes that a person may perform activities which make its function that of a professional even if the chosen area of work is not widely so recognized. The distinction relates to the degree of autonomy within which the person will operate and the degree of supervision or direction required by the debtor-in-possession or trustee. Essentially, the proscription against appointment of an interested person is to prevent placing such a person in a sufficiently autonomous position such that discretion exists for implementation of activities of benefit to the adverse interest. The appointment criteria for persons outside the employee or agency exception of § 327(c) do not require the Court to determine whether the particular person seeking to be appointed will, as a matter of fact, use the position to harm the estate, but rather are intended to prevent that issue from arising by prohibiting the initial appointment if the person is to function autonomously at a certain level of decision-making, but lacks necessary insulation from inappropriate pressures.
Applying the cited factors to this situation, the Court finds that SEOR is a professional person under the terms of the Agreement as presently proposed. The specific authorized activities which compel that result are: (1) SEOR's complete discretion regarding selection and timing of wells which it will operate based upon its economic analysis, whether by appraisal or observation of historical production records; (2) SEOR's independent ability to negotiate, execute and cancel gas transportation agreements and oil or gas sales contracts; (3) SEOR's authority to advance monies limited in amount only on a single expenditure basis, for non-emergency remedial and reconditioning operations or pipeline extensions, which advances, in certain instances, may become administrative expenses; (4) SEOR's complete financial management authority, including collection, disbursement, and accounting of funds of the estate as well as escrowing of disputed funds, with only a summary of that report required to be sent to the Trustee; and (5) SEOR's entitlement to a 5% "broker's fee" for transfers of estate properties. Although the Court does not believe that granting one of those rights to an operator, without more, necessarily means that operator becomes a professional person, the aggregation of such delegated rights in the Agreement between SEOR and the Trustee makes SEOR a professional person in this instance. Accordingly, this finding that SEOR is a professional person under the terms of its proposed employment means that it cannot be appointed under the provisions of 11 U.S.C. § 327(a).
Objections to SEOR's appointment also relate to the extent the Agreement contemplates delegation to SEOR of duties which must be performed or controlled by the Trustee. To some extent the "delegation" and "professional person" arguments overlap because, as delegation of the Trustee's duties to SEOR increases, so does the probability that SEOR is a professional person. Accordingly, the Court finds that it is inappropriate to delegate activities or decisions which the Trustee is required to perform or which touch upon the Trustee's fiduciary burdens without retention of the ultimate decision-making power in the Trustee, unless the delegatee is required to meet the more stringent standards of 11 U.S.C. § 327(a). This finding recognizes the interrelationship of the professional person designation to the delegation issue. In this situation the two issues are but different sides of the same question.
The Agreement's proposal to delegate to SEOR the right to enter into "farm-outs" arrangements, recompletions or other activities which may require solicitation of funds from unrelated third parties raises additional concerns. Such arrangements are expected to require assignments to investors of all or part of the debtor's working interests in various oil and gas leases. Although the most recent amendments to the Agreement call for the Trustee to approve such arrangements, it is contemplated that SEOR's duties will include determination of the amount and type of investment sought, designation of the well and portion of the lease interest to be assigned, *781 selection of the investors and negotiation of all terms of those arrangements. It is further contemplated that such transfers will occur without notice to other parties in this case.
The Court finds that the proposed assignments are transfers of the estate's property by sale, and as such, come within the requirements of 11 U.S.C. § 363. Regardless of whether such transfers are in the ordinary course of business or are extraordinary transfers, 11 U.S.C. § 363 grants the right to such usage and sale only to the Trustee. While execution of "farm-out" or other development arrangements may properly be vested in an agent such as SEOR, the initial decision to undertake such activities and the terms and conditions for transfers must be properly within the decisionmaking authority of the Trustee.
SEOR argues that notice and an opportunity for hearing need only be given for extraordinary transfers which are out of the ordinary course of the debtor's business and that the contemplated assignments are ordinary transactions. The Court, however, believes that such test is not the determinative issue in this case. Although characterizing such activities as either ordinary or extraordinary transactions is unclear in this case, where such activities are being formulated and carried out by an interested agent of the Trustee who also has potential or existing adverse interests, this Court will require notice and an opportunity for hearing prior to authorization. That procedural requirement will be imposed even if subsequent revisions to the Agreement take SEOR out of the category of a professional person. As proposed, the Court finds that vesting authority in SEOR for all decisions relating to the farm-out activities and other contemplated transfers, without requirement for notice and opportunity for hearing, is an impermissible delegation of the Trustee's duties and decisionmaking authority which is not in compliance with the requirements of § 363.
Finally, B & N and GEDCO's objections relate to specific provisions of the Agreement which, regardless of the outcome of the professional person or delegation issues, appear to inadequately protect the estate or prematurely determine disputed issues in SEOR's favor. After review of those provisions, the Court finds the objections to be valid insofar as they relate to any indication that SEOR may be unbonded in its operations, confirmed in its lien position, free to subcontract activities to its affiliates without prior approval by the Trustee if fees for such services are not included in SEOR's compensation, insufficiently insured to protect the estate, or able to direct that monies paid to the Trustee are for his compensation rather than income to the estate.
Based upon the foregoing, the Court finds that the First Amended Joint Motion of the Trustee and SEOR must be, and the same is, hereby DENIED. SEOR and the Trustee are, however, given a 20-day period within which to submit a further amended motion designed to address satisfactorily the Court's concerns. Any such motion should be served upon B & N, GEDCO, The Benatty Corporation, and E. James Hopple, attorney for the official unsecured creditors' committee. Absent unusual circumstances, however, opposition to such further amended motion will be addressed and ruled upon by the Court without further hearing. Consistent with these findings, proposed changes to the cash collateral order of June 5, 1985 are also DENIED at this time.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567856/ | 10 So.3d 207 (2009)
S.B., a minor child, Petitioner,
v.
Charles PARKINS, Superintendent of the Alachua Regional Juvenile Detention Center, Respondent.
No. 1D09-1340.
District Court of Appeal of Florida, First District.
April 16, 2009.
Jeffrey E. Lewis, Regional Criminal Conflict & Civil Counsel, and Clifton W. Wilson, Jr., Assistant Regional Counsel, Lake City, for Petitioner.
*208 Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
PER CURIAM.
S.B. filed a petition for writ of habeas corpus asserting that he was being unlawfully detained in secure detention beyond the 21-day statutory limit. We granted the writ by unpublished order and now issue this opinion to explain our decision.
S.B. has been charged in three separate petitions with felony offenses, which are in various procedural stages. After serving the 21-day statutory limit on his offenses, S.B. was released on January 1, 2009. All of S.B.'s cases were scheduled for hearing on February 12, 2009, but S.B. failed to appear for the hearing. He was thereafter taken into custody on February 19, 2009. Following a detention hearing, the trial court placed S.B. in secure detention again for 21 days, with a release date of March 12, 2009.
On March 12, 2009, the trial court reviewed S.B.'s detention status. Counsel for S.B. advised the court that the statutory time had expired and that S.B. should be released. The State essentially agreed that the 21-day time period had expired but requested further detention. The trial court placed S.B. in secure detention until April 9, 2009, stating: "Based on the dangers to the community and danger to the children and danger to everybody else, I'm going to order him to stay in detention until another Court tells me otherwise."
The State's power to detain juveniles charged with delinquent acts "is entirely statutory in nature." W.C. v. Smith, 898 So.2d 1137, 1138 (Fla. 1st DCA 2005). Thus, courts must strictly comply with controlling statutory provisions. Id. Subject to exceptions not relevant here, section 985.26(2), Florida Statutes (2008), prohibits the detention of a juvenile for more than 21 days on the same offense: "A child may not be held in secure, nonsecure, or home detention care under a special detention order for more than 21 days unless an adjudicatory hearing for the case has been commenced in good faith by the court." Once a juvenile has been detained on an offense, "that juvenile cannot be placed back into detention on the same charge prior to an adjudicatory hearing on that charge." A.M.W. v. Portesy, 714 So.2d 1170, 1171 (Fla. 2d DCA 1998).
Here, the trial court had not commenced an adjudicatory hearing for any of S.B.'s cases. Thus, the trial court erred by holding S.B. in secure detention beyond the statutory limit based on the circumstances of his offenses and the court's conclusion that S.B. posed a danger to the community. Counsel for respondent correctly acknowledges that the Legislature has not authorized continued secure detention of juveniles beyond the 21-day statutory time limit based on danger to the community.
PETITION GRANTED.
WOLF, KAHN, and BENTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567867/ | 450 S.W.2d 217 (1970)
Lutricia GLASS, Plaintiff-Respondent,
v.
ALLIED VAN LINES, INC., Defendant-Appellant.
No. 8904.
Springfield Court of Appeals, Missouri.
January 5, 1970.
Motion for Rehearing or to Transfer Denied February 2, 1970.
*218 William O. Welman, McHaney & Welman, Kennett, for defendant-appellant.
Eugene E. Reeves, Ward & Reeves, Caruthersville, for plaintiff-respondent.
Motion for Rehearing or to Transfer to Supreme Court Denied February 2, 1970.
TITUS, Presiding Justice.
Under her "First Amended Petition in Conversion," plaintiff Lutricia Glass (now Lutricia Shrable) obtained a $4,500 verdict-judgment against defendant Allied Van Lines, Inc., in the Circuit Court of Butler County, Missouri. Defendant has appealed contending that the trial court erroneously instructed the jury and erred in refusing to sustain its motion for a directed verdict because the evidence "failed to establish that plaintiff had given defendant, as a bailee, sufficient notice of her title or paramount claim to the property allegedly converted or that plaintiff had made a sufficient demand on defendant based on her alleged title or paramount claim as opposed to the true bailors." In reference to the last assignment, to which we first attend, the evidence favorable to the plaintiff must be accepted by us as true. Helming v. Dulle, Mo., 441 S.W.2d 350, 352(4).
*219 We essay to recast the pertinent facts in chronological order, but ere that, it is well to note plaintiff's case consisted simply of her testimony and defendant's answer to the single written interrogatory propounded by plaintiff under Civil Rule 56.01, V.A. M.R.; defendant produced one witness. None of the other dramatis personae made appearance at the trial. Although the events in this case occurred in Florida and Maryland, we are content (without so ruling) to consider the appeal upon the same assumption made by the parties, id est, that the law of conversion is the same in the States of Missouri, Florida and Maryland. Service of process was obtained on defendant through the secretary of the public service commission in reliance upon plaintiff's representation that defendant was a motor carrier or contract hauler. § 508.070, V.A.M.S.
In May 1967, without benefit of wedlock, plaintiff began living with one James H. Baker in a Hollywood, Florida, apartment. Baker spent most of his time in Orlando, Florida, but was at the apartment "two or three days at a time or maybe on a weekend." He represented to the 22-year-old plaintiff that he was unmarried, 44 years of age, and had a son named James H. Baker, III. Plaintiff never met the son or a woman identified as Mrs. James Baker or Mary Baker.
As "Mr. and Mrs. James H. Baker," plaintiff and Baker bought a house at 2325 Sherbrook Road in Winter Park, Florida. They moved their personal belongings from the Hollywood apartment to the Winter Park address and "only stayed one night in the [Winter Park] house" before departing, about June 10, 1967, for what was intended to be a one-week stay in Washington, D. C. Plaintiff's absence from Winter Park continued, however, until August 1967.
On June 29, 1967, a Mary Baker called defendant's agent in Orlando to pick up for ultimate moving to Hyattesville, Maryland, all household goods then located at 712 South Lake Davis Drive, Orlando, Florida. Defendant's agent obtained the property, weighing 900 pounds, at the stated address on the same day Mary Baker had called. The inventory of this property was signed by "Mary Baker" and listed "Mrs. James Baker" as the owner. About two days thereafter, defendant's Orlando agent received a call from a Mr. Baker who advised he was Mary Baker's husband. Mr. Baker said that subject to future instructions, he wanted the agent to pick up all items located at his new home in Winter Park and held in Orlando with the property the agent had previously obtained at 712 South Lake Davis Drive in Orlando. The agent was informed that all of the goods were to be sent to Baltimore, Maryland, and that his son, James H. Baker, III, would meet the movers at the Winter Park address. Pursuant to a later call from Mr. Baker, defendant's agent picked up 730 pounds of property at 2325 Sherbrook Road in Winter Park on July 22, 1967. James H. Baker, III, signed the inventory for these goods, and the inventory noted J. H. Baker as the owner. The items that had been obtained by the agent at Orlando and at Winter Park were then hauled to Baltimore under a bill of lading signed by James H. Baker, III, which showed James Baker to be the shipper and the consignee. The shipment arrived in Baltimore on July 24, 1967, and was stored in the warehouse of defendant's Baltimore agent. A telephone call was received by the Baltimore agent on August 3, 1967, from a Mr. Baker who related that he would be in to produce proper identification and that the agent was not to let anyone but him see or take possession of the property.
When plaintiff and Baker returned to Florida in August 1967, plaintiff learned for the first time that defendant "had picked up the stuff" that had been left in the house at Winter Park. Plaintiff, identifying herself as "Mrs. Baker," telephoned defendant's Orlando agent "concerning a shipment made from Florida," and was told "that my things had been *220 picked up and * * * sent to Baltimore, Maryland, and were being held in storage [and] James H. Baker had signed to have these things picked up [and] that someone would come out and talk to me about this," but no one ever did. Shortly following this, according to the plaintiff, she was taken to Baltimore by Baker against her will.
Two things occurred August 16, 1967: (1) Plaintiff called defendant's Baltimore agent as "Mrs. Baker" to inquire "whether the shipment was there," and was informed that James Baker was the shipper of record and "that Mr. Baker had said not to let anyone have it but him"; (2) Plaintiff and Baker went to the warehouse of defendant's agent in Baltimore "as Mr. and Mrs. Baker * * * to demand back, to recover possession of the goods as Mr. and Mrs. James Baker." The agent was not satisfied with the identification because it was not Baker's "signature that signed to have the things moved," and plaintiff identified herself to the agent as "Lutricia Baker." Before leaving Baltimore about a week later, plaintiff again called the agent "to find out how I would go about getting my things back and they told me * * * the things were being sent back to Winter Park [and that I] would have to * * * get a court order to find out anything that was being held there because they didn't think that I had the proof that the things belonged to me."
Plaintiff's last contact with defendant before suit was filed was in September 1967 when she, as "Mrs. James Baker," called defendant's Orlando agent from a motel in Winter Park, Florida, to inquire when her goods were going to be shipped back from Baltimore. The agent disavowed knowledge of the shipment but said that if it was being made, it should be received in Orlando within a few days.
To complete the picture, Mary Baker (recognized by the agent as a different person than "Lutricia Baker") went to the office of defendant's Baltimore agent on November 1, 1967, presented a signed authorization from James Baker, paid the transportation and storage charges, "and picked up all the goods." Defendant's staff attorney testified that before delivery was made to Mary Baker he was aware of the dispute "concerning the identity of a Mr. and Mrs. Baker that presented themselves at the Baltimore office."
Bailment is a contract resulting from the delivery of goods by the bailor to the bailee on condition that they either be restored to the bailor or delivered to someone designated by the bailor, according to the bailor's directions, when the purposes for which the goods are bailed have been answered [Weinberg v. Wayco Petroleum Company, Mo.App., 402 S.W.2d 597, 599 (4); Nuell v. Forty-North Corporation, Mo.App., 358 S.W.2d 70, 75(3)], and a bailee who makes delivery of the goods to a third person without the assent of the bailor, does so at his peril. Crow Contracting Corp. v. George F. Smith Co., Mo. App., 407 S.W.2d 593, 598(7). Possession of personal property is prima facie evidence of ownership [United States v. Kramel, 8 Cir., 234 F.2d 577, 579(1)], so if a bailee receives property in bailment from one in possession, although the possessor is not rightfully entitled thereto, the bailee is not guilty of conversion if he delivers the goods pursuant to the bailment contract, provided the delivery is accomplished before he has adequate notice of the rights of the real owner. Cresswell v. Leftridge, Mo.App., 194 S.W.2d 48, 50(2).
Proof of conversion may be made in either of three ways: (1) by a tortious taking, (2) by any use, or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner, or (3) by refusal to give up possession to the owner on demand. Time Plans, Inc. v. Wornall Bank, Mo. App., 419 S.W.2d 491, 495. In the first two instances, supra, the fact of conversion becomes self evident through proof of the overt acts of the converter, and that is *221 why it has been said that a "demand or refusal, * * * are merely evidential, not creative, and they need not be shown to make out a case of conversion where some other independent act of conversion * * is in evidence." Schulte v. Florian, Mo. App., 370 S.W.2d 623, 625(2). On the other hand, if possession was not acquired by a tortious taking or the possessor does not appropriate or use the property in a fashion to indicate a claim thereto adverse to the owner, then no evidence of a conversion exists until there is proof, first, that a proper demand for possession was made by the one who is entitled thereto and, second, that the possessor wrongfully refused delivery. Consequently, if a bailee's possession is innocent, as where he receives property from the bailor in good faith believing the bailor to be the owner, he is not liable in conversion to a third person who claims the property unless that person asserts a paramount right to immediate possession and makes sufficient demand for the property before the bailee delivers it to the bailor. Nanson v. Jacob, 93 Mo. 331, 342, 6 S.W. 246, 250; Ardisco Financial Corp. v. de Margoulies, 21 A.D.2d 295, 250 N.Y.S.2d 77, 79-80(2-6); 1 Restatement (Second) of Torts, §§ 230 and 235; 8 C.J.S. Bailments, § 56b (2), pp. 580-583.
The lamentation voiced in plaintiff's brief that she may have "assumed an unnecessary burden in pleading, proving and instructing on a claim for possession and refusal" (although we question the quality of the proving), will be to no avail here for we only review the case on the same theory upon which it was submitted to the trial court. Grider v. Twin City Fire Insurance Company, Mo.App., 426 S.W.2d 698, 701(6). Therefore, our consideration of the matter proceeds on the assumption that defendant's possession of the property in question was initially proper and that plaintiff had the burden of proving, inter alia, that she made a good and sufficient demand for possession prior to the time that the defendant, as bailee, made delivery of the goods pursuant to the bailment agreement. 18 Am.Jur.2d, Conversion, § 159, p. 252.
To be legally effective as evidence of a conversion, the demand by a stranger to the bailment contract must equate to a plain, unambiguous request for the present delivery of the property, and must be peremptory and clothed in absolute, unequivocal terms. Handlan-Buck Mfg. Co. v. Stave Electrical Co., 184 Mo.App. 247, 271, 168 S.W. 785, 792(7); Wilcox v. Hubbard, 154 Wash. 344, 282 P. 218, 219(3); Cumberland Telephone & Telegraph Co. v. Taylor, 44 Ind.App. 27, 88 N.E. 631, 633(1); 89 C.J.S. Trover & Conversion § 58a, p. 561. Where only a part of the goods is claimed by the third party, a failure to specify the articles demanded has been held to render the demand insufficient (18 Am. Jur.2d, Conversion, § 64, p. 199; cf. St. Louis Fixture & Show Case Co. v. F. W. Woolworth Co., 232 Mo.App. 10, 24, 88 S.W.2d 254, 262), and "[i]n considering the question of defendant's liability, we must judge of its action from the standpoint of its knowledge." Wichita Poultry Co. v. Southern Pac. Ry. Co., 197 Mo.App. 578, 580, 198 S.W. 82-83.
All of plaintiff's dealings with the defendant's agents concerned a shipment of goods (part of which plaintiff admittedly did not own) that was consigned to James Baker and had been signed for by and designated as belonging to persons other than the plaintiff. She "always told them [she was] Mrs. Baker [or Lutricia Baker and] never indicated anything else but that [she was] the wife of James Baker." According to her proof, plaintiff never asserted to defendant's agents that she alone had the sole and exclusive right to the possession of the shipment, or any part thereof; she did not once deny the title of James Baker or Mary Baker in and to the property or tell the agents that James Baker and Mary Baker had no right to the possession of the shipment. Neither did the plaintiff ever undertake to specify what particular articles contained in the 1630 pound shipment she was personally *222 claiming. The only record evidence of a direct and specific demand for possession having been made, is when the plaintiff and Baker "as Mr. and Mrs. James Baker" went to the Baltimore warehouse "to demand back, to recover possession of the goods as Mr. and Mrs. James Baker." (Our emphasis). As stated in Ardisco Financial Corp. v. de Margoulies, supra, 250 N.Y.S.2d at 80(5), "A claim of equivalency of right by a stranger to the bailment contract is not the assertion of a paramount right necessary to justify nondelivery to the bailor."
Defendant's awareness of a dispute related only to "the identity of Mr. and Mrs. Baker that presented themselves to the Baltimore office." As far as the record is concerned, defendant was never apprised that plaintiff, as "Mrs. James Baker" or otherwise, was individually and independently asserting a right to possession paramount to the parties named in the bailment contract or was claiming the shipment adverse to the rights of James Baker or Mary Baker. We find no evidence that plaintiff ever made a plain, unambiguous personal request for the present delivery of the shipment to herself alone or that she, in her own right and adverse to the rights of others, ever voiced a peremptory demand for her alleged property in absolute, unequivocal terms. In the circumstances of this case, plaintiff's general inquiries concerning the status of the shipment and references to the goods as being hers, do not meet the standards prescribed by the authorities to qualify as requests or demands for present delivery of the property in disregard of the bailment. Therefore, there was no evidence of any conversion on the part of the defendant and no circumstance that would render the defendant guilty of conversion when it delivered the shipment in accordance with the terms of the agreement. The trial court should have sustained defendant's motion for a directed verdict in its favor. Accordingly, the judgment nisi for the plaintiff is reversed.
STONE and HOGAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567881/ | 450 S.W.2d 527 (1970)
James RAKE, alias James Scott, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
February 13, 1970.
Hunter B. Whitesell, Fulton, for appellant.
John B. Breckinridge, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
MILLIKEN, Judge.
The appellant, James Rake, twenty-eight years of age, was convicted of carrying concealed a deadly weapon, a .38-caliber revolver, in violation of KRS 435.230, and was given the maximum sentence. The issue on this appeal, ably presented by his court-appointed counsel, is the admission of testimony which tended to implicate Rake in another crime and the contention that its admission was so prejudicial it prevented him from having a fair trial.
Two police officers were alerted by a telephone call that Rake was armed and dangerous. Why they were so notified was not disclosed, but the officers proceeded to the house in Mayfield where Rake lived with Darwin Beecher, two unmarried women, and the young brother of one of the women. The officers were admitted to the house about eleven o'clock at night and waited until Rake's arrival about four A.M. when they covered him with their guns as he came in the door, ordered him to stand against and facing the wall *528 with his hands above his head, and removed a pistol which they testified Rake carried concealed under his shirt and which he had told them he was carrying. The officers and women testified the pistol was concealed, but Rake denied it, saying he was taking off his wet shirt when he came in the door and that the pistol, which was tucked in his trouser's waistband, was in plain view. When questioned about the pistol, Rake claimed that he had bought it from Darwin Beecher the day before, and had used it in target practice that day. The police ascertained that the pistol had been bought from a sporting goods store in Mayfield by, and had been stolen from the safe of, the Mayfield Planing Mill during a robbery the previous weekend.
The appellant contends that the only issue on the trial was whether the pistol he carried was concealed at the time of his arrest, and that it was not necessary to identify the gun nor to admit testimony of its origin. In other words, the jury should be limited to hear Rake's denial that his gun was concealed, and the testimony of the two policemen and the women that it was concealed, and reach its verdict from that alone. As is stated in Section 1791 of the second edition of Roberson's New Kentucky Criminal Law and Procedure, page 1893, "Even evidence tending to prove a distinct offense, is therefore, admissible, if it shows facilities or motives for the commission of the one in question * * * Wide latitude", Roberson says, "* * * is allowed the prosecution in ascertaining the motive that actuated the commission of the crime". See also 22A C.J.S. Criminal Law § 687.
In the circumstances developed in the course of the trial we do not think the testimony about the robbery, when identifying the gun, was so prejudicial that it caused a miscarriage of justice. After all, the testimony of the officers and the women that the gun was concealed far outweighed Rake's assertion that it was not concealed. Furthermore, Beecher's testimony that he had sold the stolen gun to Rake the day before was not helpful, for Beecher had lived in the house with Rake and was a convicted felon at the time he testified. The skein of evidence enwrapped Rake and established a motive for concealing the gun. The trial judge, without request, admonished the jury to consider this testimony only for the purpose of affecting the credibility of Rake. It is within the sound discretion of the trial judge to determine whether the probative value of evidence is outweighed by its possible prejudicial effect and to admit or exclude it accordingly. 22A C.J.S. Criminal Law § 683. We conclude that the testimony identifying the gun as a stolen gun was relevant to the motive to conceal, and that the trial judge exercised sound discretion in admitting it.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567883/ | 450 S.W.2d 83 (1969)
Bill BALLARD, Appellant,
v.
The STATE of Texas, Appellee.
No. 42463.
Court of Criminal Appeals of Texas.
December 17, 1969.
Rehearing Denied February 25, 1970.
*84 Robert B. Billings, Dallas (On Appeal Only), for appellant.
Henry Wade, Dist. Atty., James P. Barlow, Wm. Hill, Jr., Malcolm Dade, Camille Elliott and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is drunk driving (Art. 802, Vernon's Ann.P.C.); the punishment, six months in jail and a fine of $100.00.
Appellant pleaded not guilty before a jury and made application for misdemeanor probation. (Art. 42.13 Vernon's Ann. C.C.P.)
The issue of guilt or innocence was submitted to the jury in the court's charge to which there were no objections and no special charges were requested.
The sufficiency of the evidence to sustain the jury's verdict finding appellant guilty is not questioned.
Appellant's grounds of error Nos. 4 and 6, which complain of omissions in the court's charge, present nothing for review in the absence of written objections or requested charges. (Arts. 36.14 and 36.15 V.A.C.C.P.) Allen v. State, Tex.Cr.App., 419 S.W.2d 852; Seefurth v. State, Tex. Cr.App., 422 S.W.2d 931; Ivey v. State, Tex.Cr.App., 425 S.W.2d 631; Carmichael v. State, Tex.Cr.App., 449 S.W.2d 58 (decided November 19, 1969).
Ground of error No. 2, which complains of variance between the stipulated chain of evidence of the blood sample taken from appellant for testing and the testimony of witnesses, and ground of error No. 3 which complains that the testimony concerning the amount of alcohol in the blood and its effect is not in accord with the common knowledge of mankind and is contrary to the scientific knowledge of such tests, present nothing for review in the absence of objection to the admission of the testimony referred to.
Ground of error No. 1 complains that appellant's right against self incrimination was violated when he was induced to take a blood test upon the promise that the results of such test could be used for him.
The record reflects that appellant was given an opportunity to allow a blood sample to be taken from him and was told that, if taken and analyzed scientifically, the result could be used either for or against him. He consented, the blood sample was taken and analyzed, the result showing a 0.301% concentration of alcohol.
The taking of the blood sample did not infringe upon appellant's constitutional rights. Hearn v. State, Tex.Cr.App., 411 S.W.2d 543; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.
We further note that the blood sample and testimony were admitted in evidence without objection.
*85 The remaining ground of error relates to the hearing which followed the return of the verdict of guilty. The complaint is that the state was permitted to call the defendant to the stand in order to ask him about prior convictions contrary to his constitutional rights. Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732, decided since the briefs in this case were filed in the trial court, was cited in oral argument in support of this ground of error.
Appellant testified as a witness in his own behalf at the trial on the issue of guilt or innocence.
Following the return of the verdict of guilty, the record reflects:
THE COURT: "Does the State have any further testimony to offer?
"MR. BARKLOW: Yes, Your Honor, at this time, the State wishes to call to the stand Bill Ballard.
"BILL BALLARD, a witness in the above styled and numbered cause, who having been first duly sworn by the Court, testified on his oath as follows:
"RECROSS EXAMINATION
"BY MR. BARKLOW:
"Q. State your name, please, for the Court and jury.
"A. Bill Ballard.
"Q. Are you one and the same Bill Ballard who testified earlier in this case?
"A. Yes, I am.
"Q. Are you one and the same Bill Ballard who, on January the tenth (10th), 1955, pled guilty before the Court on docket number 6445-H to theft over fifty dollars?
"A. I am.
"Q. In a felony case?
"A. That one case. Yes, sir.
"Q. And received a two (2) year probated sentence?
"A. I am."
There was no majority opinion in Brumfield, supra. However, under either view as to the right of the state to recall the defendant for further cross-examination at the hearing on punishment, Brumfield v. State, is easily distinguishable from the case at bar by the fact that in the case at bar no objection or protest was made when appellant was recalled by the state at the punishment hearing, and his testimony at the hearing on punishment was admitted without objection.
We further note that similar testimony was elicited from the defendant by his counsel in connection with his application for probation in which he swore that he had been convicted and given probation.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567756/ | 10 So.3d 636 (2009)
LUNGSTRUM
v.
WENAAS.
No. 1D08-3436.
District Court of Appeal of Florida, First District.
June 2, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/732955/ | 104 F.3d 364
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Michael Lee WALKER, Appellant.
No. 96-1124.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 24, 1996.Filed Dec. 2, 1996.
Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.
1
Michael Lee Walker conditionally pled guilty to one count of being a felon in possession of a firearm, reserving his right to appeal from the denial by the District Court1 of his motion to suppress. His appeal is now before us. We affirm.
2
Walker was a passenger in a car stopped for a traffic offense. The officer recognized Walker, whom the officer recently had arrested for public intoxication and possession of a controlled substance. The officer also identified another passenger and had information that this passenger used drugs. The driver gave the officer consent to search the car, and the officer asked the driver and her two passengers to stand outside, at the rear of the car, while he searched it. While the officer was searching the car, a backup officer arrived. The backup officer reminded the first officer that they had received a "safety warning" that a confidential informant had advised the police that Walker was "said to have been carrying a semi-automatic pistol on his person." This warning had been placed on a clipboard at police headquarters two or three weeks prior to the stop. Becoming concerned for his and his backup officer's safety, the first officer did a pat-down search of Walker and found a loaded .32 caliber firearm with a round in its chamber. Walker thereupon was arrested.
3
In denying Walker's motion to suppress, the District Court concluded that because of the officer "safety warning" the officers had a reasonable, articulable suspicion that Walker posed a risk to their safety, and that this provided a reasonable basis for the pat-down search for weapons. In his appeal, Walker attacks this conclusion. Having reviewed the case, we conclude that the District Court was correct. No error of fact or law appears, and an opinion by this Court would add nothing of substance to the thorough and carefully reasoned opinion of the District Court. Without further discussion, we affirm that court's decision.
4
AFFIRMED. See 8th Cir. R. 47B.
1
The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1568113/ | 10 So. 3d 1212 (2009)
STATE of Louisiana
v.
Mia W. SKINNER.
No. 2008-KK-2522.
Supreme Court of Louisiana.
May 5, 2009.
The Whitehead Law Offices, Charles Raymond Whitehead, Jr., Natchitoches, for applicant.
James D. Caldwell, Attorney General, Van H. Kyzar, District Attorney, Robert Stuart Wright, Assistant District Attorney, for respondent.
KNOLL, Justice.
This criminal case comes to us in a pretrial posture after the lower courts denied the defendant's motion to suppress evidence the State seized purportedly pursuant to a subpoena duces tecum as provided in La.Code Crim. Proc. art. 66. Defendant is charged with violating La. Rev.Stat. 40:971 B(1)(i), obtaining a prescription for a controlled dangerous substance from a health care practitioner without disclosing the fact of an existing prescription for a controlled dangerous substance from another health care practitioner, *1213 i.e., "doctor shopping". Upon receiving information from law enforcement that the defendant was suspected of obtaining prescriptions for the same drug from numerous doctors, the District Attorney filed a motion and proposed order for production of prescription records and a motion and proposed order for production of medical records, both purportedly under the authority of La.Code Crim. Proc. art. 66. The trial court granted both motions and signed the orders. The defendant sought the suppression of these records for, inter alia, being obtained without a warrant. For the following reasons we reverse the lower courts, finding the defendant had a reasonable expectation of privacy in her medical and prescription records such that a warrant was required for a search and seizure of these records for criminal investigative purposes.
FACTS AND PROCEDURAL HISTORY
Detective Jesse Taitano is employed by the Natchitoches City Police Department and is assigned to the Natchitoches Multi-Jurisdictional Drug Task Force (NMJDTF). On November 5, 2007, Det. Taitano was contacted by a pharmacist from Causey's Pharmacy, who informed Det. Taitano that several doctors were giving defendant prescriptions for the same controlled dangerous substance (CDS), namely Alprazalom.[1] On November 7, 2007, the pharmacist at Rite-Aid informed Det. Taitano that the defendant was attempting to fill her prescription for Alprazalom twelve days early and that she was receiving prescriptions for this drug from multiple doctors at the hospital emergency room.
Based upon this information, on November 8, 2007, the District Attorney, acting under the authority of La.Code Crim. Proc. art. 66 and representing that the NMJDTF was conducting an investigation involving forged prescriptions, moved for an order for eight local pharmacies to deliver to Det. Taitano "all original prescription records in the name of Mia Skinner" from April 1, 2007 through November 8, 2007. The district court issued an order to the eight pharmacies to deliver to Det. Taitano "all original prescription records" of the defendant for the dates requested.[2] On November 27, 2007, again acting under the authority of La.Code Crim. Proc. art. 66 and representing that the NMJDTF was conducting a narcotics investigation, the District Attorney sought "any and all medical records" regarding defendant from April 1, 2007 through November 27, 2007 from Natchitoches Regional Medical Center (NRMC). The district court issued an order[3] to NRMC to deliver to the *1214 District Attorney's office "any and all medical records" regarding the defendant for the dates requested.
The District Attorney then filed a Bill of Information charging the defendant with two counts of obtaining a prescription for a CDS classified in Schedule IV (Alprazolam) in violation of "40:971(B)(1)(b)(i)".[4] Det. Taitano testified at the preliminary hearing that although the court had issued an order for NRMC to release the defendant's medical records, there were no such records. Det. Taitano apparently did receive the defendant's prescription records in response to the court order.
Averring the information was obtained without a medical release pursuant to La. Rev.Stat. 13:3715.1 and without a search warrant, defendant moved to suppress the evidence. The trial court denied the motion. In written reasons, the trial court noted that in response to the District Attorney's motion pursuant to La.Code Crim. Proc. art. 66, the court issued an order, not a subpoena, and that service was not made by the Sheriff or in compliance with La. Code Crim. Proc. art. 734. The court additionally observed that the provisions of La.Rev.Stat. 13:3715.1 were not followed in that the pharmacies were not given affidavits that attested to why the subpoenas were issued, nor was seven days notice given to the defendant prior to obtaining the records.[5]
The trial court first found the remedy for the obtaining of evidence in violation of *1215 La.Rev.Stat. 13:3715.1 was not suppression of the evidence before trial, but that the evidence is inadmissible at trial. The trial court relied upon State v. Downs, 04-2402 (La. Ct.App. 1 Cir. 9/23/05), 923 So. 2d 726, which cited with approval State v. Mullins, 537 So. 2d 386 (La. Ct.App. 4 Cir.1988), wherein that court held that the State could not introduce at trial medical records obtained without following the formalities of La.Rev.Stat. 13:3715.1. The trial court determined that the records obtained by the District Attorney were inadmissible at any trial of the defendant unless a second subpoena was issued that followed the requirements of La.Rev.Stat. 13:3715.1. Moreover, the trial court found the rule expressed in Downs and Mullins is equally applicable to subpoenas obtained not in conformity with La.Code Crim. Proc. art. 66. Although it was clear the clerk of court did not issue the subpoenas as required by Article 66, the trial court held the remedy is not suppression, but that the evidence is inadmissible at trial unless a valid, conforming subpoena is issued.
Finally, the trial court found that State v. Lee, 05-2098, p. 20 (La.1/16/08), 976 So. 2d 109, 125, cert. denied, ___ U.S. ___, 129 S. Ct. 143, 172 L. Ed. 2d 39 (2008), which held the State could not circumvent the probable cause requirement for a DNA search of the accused by using an Article 66 subpoena, was distinguishable because Lee dealt with a search of the individual defendant while this case concerns a "subpoena [order] directed to third party business entities that were not accused of or under investigation for a crime." The trial court decided that only reasonable grounds for investigative purposes, as provided in Article 66, are required for a "D.A. subpoena", as opposed to the probable cause that is required for a warrant.
A divided panel of the court of appeal denied the defendant's writ. However, Judge Roy, pro tempore, vigorously dissented, noting that the protections guaranteed by La. Const. Art. I, § 5 are significantly broader in scope and intent than those contained in the Constitution of the United States. In his view, failing to suppress the evidence gives carte blanche to investigating agencies to engage in "fishing expeditions" into the most private, sensitive medical information, which could later be used as the basis for probable cause warrants, essentially circumventing fundamental, constitutional rights.
We granted the defendant's writ in order to address whether Louisiana's citizens have a reasonable expectation of privacy in their pharmaceutical prescription and medical records such that a warrant is required for a search of those records in a criminal investigation.
DISCUSSION
The Fourth Amendment, applicable to the states through the Fourteenth Amendment, provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV; See, Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081 (1961). Louisiana provides protection not only against unreasonable searches and seizures, but our Constitution explicitly protects against unreasonable invasions of privacy. La. Const. Art. I, § 5 provides "[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy...." Federal and state constitutional protections against unreasonable searches exist only when an individual has an actual expectation of privacy that society is prepared to recognize *1216 as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J. concurring); State v. Ragsdale, 381 So. 2d 492, 497 (La.1980).
The reasonable expectation of privacy in medical[6] and prescription records is res nova to this Court. Accordingly, we find it appropriate to look to decisions of the federal courts to examine their determinations of the contours of privacy in medical and prescription records.
The United States Supreme Court, in Whalen v. Roe, 429 U.S. 589, 599, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64 (1977), noted that the right to privacy involves at least two different kinds of interests. One is the individual's interest in avoiding disclosure of personal matters and the other is the interest in independence in making certain kinds of important decisions. Id., 429 U.S. at 599-600, 97 S.Ct. at 876. The two kinds of privacy interests identified in Whalen may be characterized as the "confidentiality" and "autonomy" branches of the constitutional right of privacy. Borucki v. Ryan, 827 F.2d 836, 840 (1st Cir.1987); see, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1128 (5th Cir.1978), cert. denied, 439 U.S. 1129, 99 S. Ct. 1047, 59 L. Ed. 2d 90 (1978).
The Whalen court was presented with the argument that a New York statute, which required prescriptions for drugs that had been classified "Schedule II" to be forwarded to the New York State Department of Health,[7] invaded a constitutionally protected zone of privacy. The official prescription form identified the prescribing physician, the dispensing pharmacy, the drug and dosage, and the name, address and age of the patient. After noting that public disclosure could occur in three ways, the Supreme Court found the statute did not facially pose a sufficiently grievous threat to either privacy interest to establish a constitutional violation.[8]Whalen, 429 U.S. at 601, 97 S.Ct. at 877. For our purposes, it is significant the Supreme Court noted that one of the ways in which disclosure of the information could occur was the situation of a doctor or a patient being accused of a violation and the stored data being offered in evidence in a judicial proceeding. Finding this possibility insufficient to hold the statute facially unconstitutional, the Supreme Court wrote "the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection against unwarranted disclosure is surely not a sufficient reason for invalidating the entire patient-identification program." Whalen, 429 U.S. at 601-602, 97 S.Ct. at 877. The requirement of disclosures to a state agency having responsibility for the health of the community did not automatically amount to an *1217 impermissible invasion of privacy. Whalen, 429 U.S. at 602, 97 S.Ct. at 878. Notably, however, the Court held individuals do have a limited right to privacy in their medical records.
More importantly, the Court's decision holding the regulatory scheme was not facially unconstitutional was explicitly based upon the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, Whalen, 429 U.S. at 604, 97 S.Ct. at 878; the Court explicitly distinguished Fourth Amendment privacy interests from Fourteenth Amendment privacy interests. Whalen, 429 U.S. at 598 n. 23, 97 S.Ct. at 876; 429 U.S. at 599 n. 24, 97 S.Ct. at 876. The Court noted that the right of the individual to be free in his private affairs from governmental surveillance and intrusion is a constitutional right directly protected by the Fourth Amendment. Whalen, 429 U.S. at 600 n. 24, 97 S.Ct. at 876. In response to the Roe plaintiffs' argument that their Fourth Amendment privacy interest was invaded by New York's regulatory statute, the Court explicitly declined to extend the Fourth Amendment's privacy interest to that situation which did not involve "affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations." Whalen, 429 U.S. at 604 n. 32, 97 S.Ct. at 878.
A majority of the federal Circuit Courts of Appeals have concluded the constitutional right to privacy extends to medical and/or prescription records. Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir.2005) (constitutional right to privacy in prescription drug records), cert. denied, 546 U.S. 1138, 126 S. Ct. 1147, 163 L. Ed. 2d 1001 (2006); Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir.2000), cert. denied, 534 U.S. 840, 122 S. Ct. 96, 151 L. Ed. 2d 56 (2001); Doe v. Southeastern Pennsylvania Trans. Auth., 72 F.3d 1133, 1137 (3d Cir.1995), cert. denied, 519 U.S. 808, 117 S. Ct. 51, 136 L. Ed. 2d 15 (1996); Anderson v. Romero, 72 F.3d 518, 522 (7th Cir.1995); Doe v. New York, 15 F.3d 264, 267 (2d Cir.1994); Doe v. Attorney General of the United States, 941 F.2d 780, 795-796 (9th Cir. 1991), vacated on other grounds sub nom. Reno v. Doe, 518 U.S. 1014, 116 S. Ct. 2543, 135 L. Ed. 2d 1064 (1996); see also Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir.1991)(assuming such right exists). Contra Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir.1995) (holding that constitutional right of privacy does not apply to medical records). As noted by the United States Tenth Circuit Court of Appeals, information contained in prescription records may not only reveal facts about what illnesses a person has, but may reveal information relating to procreation, such as fertility medication or contraceptives. Douglas, 419 F.3d at 1102.
We are cognizant that the issue of whether a warrant is required to conduct an investigatory search of prescription records, in contrast to the regulatory disclosures at issue in Whalen, is one that has not been settled. Douglas v. Dobbs, 419 F.3d 1097, 1103 (10th Cir.2005).[9] Nevertheless, *1218 we do not find that Whalen's upholding of a regulatory scheme for the monitoring of prescriptions for controlled substances diminishes a person's Fourth Amendment privacy interest to permit warrantless governmental intrusion during the course of a criminal investigation.
Considering the federal jurisprudence and Louisiana's constitutional requirement of a heightened privacy interest for its citizens, we find that the right to privacy in one's medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Therefore, absent the narrowly drawn exceptions permitting warrantless searches, we hold a warrant is required to conduct an investigatory search of medical and/or prescription records. We are not prepared to extend Whalen, which balanced the individual's privacy interest against the state's reasonable exercise of its regulatory power, to find Louisiana allows warrantless searches and seizures of its citizens' medical and pharmacy records for criminal investigative purposes.
Because we find a warrant was required for an investigative search of the defendant's prescription and medical records, the trial court erred in finding the remedy was for the State to comply with requirements of La.Code Crim Proc. art. 66 and La Rev. Stat. 13:3715.1, which the State had admittedly failed to comply with in obtaining the defendant's prescription and medical records, in order for these records to be admissible at trial. The trial court's ruling essentially permits the State to re-subpoena the prescription and medical records, allowing the State to introduce them at trial if the State has followed all the procedural requirements of La.Rev.Stat. 13:3715.1 and/or La.Code Crim. Proc. art. 66 in procuring these records a second time. However, because we find the Fourth Amendment and La. Const. art. I, § 5 require a search warrant before a search of prescription and medical records for criminal investigative purposes is permitted, the State cannot cure its warrantless search and seizure of the records by a second subpoena of these records.
A search warrant for property where one has a reasonable expectation of privacy may issue only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. La. Const. art. I, § 5; La Code Crim. Proc. art. 162. The procedural requirements of La.Rev.Stat. 13:3715.1 simply and clearly do not suffice to comply with the constitutional requirements of probable cause supported by a sworn affidavit for the issuance of a search warrant. Thus, it is irrelevant whether or not the State complied with the requirements of La.Rev.Stat. 13:3715.1, and any subsequent compliance with its procedural requirements is insufficient to permit the introduction of evidence that was illegally searched and seized. This evidence must be suppressed.
Additionally, the trial court erred in distinguishing State v. Lee, 05-2098 (La.1/16/08), 976 So. 2d 109, from the instant matter where the State attempted to use Article 66 subpoenas to obtain the defendant's prescription and medical records. Although the attempted subpoenas were directed to third party business entities *1219 that were not under investigation for a crime, the attempted subpoenas sought the prescription and medical records of the defendant, who had a reasonable expectation of privacy in these records. Because we have determined the defendant had a right of privacy in these records, they could only be searched and seized pursuant to a warrant. Under these circumstances, an Article 66 subpoena was inappropriate because the reasonable expectation of privacy required a legal search and seizure, which can only be done pursuant to a search warrant; this implicates the warrant requirement and its narrow circumstance exceptions.
CONCLUSION
For the foregoing reasons, we find the lower courts erred in denying the defendant's motion to suppress the prescription records obtained without a warrant. We hold that a right to privacy in one's medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Therefore, a warrant is required to conduct a search and seizure of such records for criminal investigative purposes.
DECREE
The judgment of the lower courts are reversed. This case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.
REVERSED and REMANDED.
NOTES
[1] Alprazalom is a Schedule IV CDS, pursuant to La.Rev.Stat. 40:964. Alprazalom is the generic form of Xanax. Drug Facts and Comparisons 2009, p. 1306 (2009).
[2] The eight pharmacies were Brookshire's Pharmacy, Cade's Pharmacy, Causey's Pharmacy, Gardiner's Pharmacy, Rite-Aid Pharmacy, University Pharmacy, Walgreen's Pharmacy and Wal-Mart Pharmacy.
[3] La.Code Crim. Proc. art. 66 provides that upon written motion of the attorney general or district attorney, the court may order the clerk to issue subpoenas or subpoenas duces tecum, which are then to be served by any commissioned investigator from the attorney general's office or in conformity with La.Code Crim. Proc. art. 734. In this matter before us, no subpoenas duces tecum were issued by the clerk. Rather, the court merely issued an order for the pharmacies to deliver the records to Det. Taitano and an order for NRMC to deliver the records to the District Attorney's office. Although the correct procedure was not followed, this is of no moment for our disposition of this case, because we find merit in defendant's argument that it was error to search and seize the evidence without a warrant.
[4] We note that subparagraphs (B)(1)(b) and (B)(1)(i) constitute different offenses. Subparagraph (B)(1)(b) prohibits acquiring or obtaining possession of a CDS by misrepresentation, fraud, forgery, deception or subterfuge. Subparagraph (B)(1)(i) prohibits obtaining or seeking to obtain a CDS or a prescription for a CDS from a health care practitioner, while being supplied with any CDS or a prescription for any CDS by another health care practitioner, without disclosing the fact of the existing prescription to the practitioner from whom the subsequent prescription is sought, more commonly called "doctor shopping". It is unclear from this Bill of Information if defendant is charged with violating both of these subparagraphs; however, for purposes of this opinion that is not relevant. The affidavit filed for the arrest warrant, the transcript of the preliminary examination, and the State's brief filed with this Court all indicate the State was prosecuting the defendant for violating La.Rev.Stat. 40:971 B(1)(i), i.e., "doctor shopping".
[5] La.Rev.Stat. 13:3715.1 provides, in relevant part:
* * *
B. The exclusive method by which medical, hospital, or other records relating to a person's medical treatment, history, or condition may be obtained or disclosed by a health care provider, shall be pursuant to and in accordance with the provisions of R.S. 40:1299.96 or Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner: (1) A health care provider shall disclose records of a patient who is a party to litigation pursuant to a subpoena issued in that litigation, whether for purposes of deposition or for trial and whether issued in a civil, criminal, workers' compensation, or other proceeding, but only if: the health care provider has received an affidavit of the party or the party's attorney at whose request the subpoena has been issued that attests to the fact that such subpoena is for the records of a party to the litigation and that notice of the subpoena has been mailed by registered or certified mail to the patient whose records are sought, or, if represented, to his counsel of record, at least seven days prior to the issuance of the subpoena; and the subpoena is served on the health care provider at least seven days prior to the date on which the records are to be disclosed, and the health care provider has not received a copy of a petition or motion indicating that the patient has taken legal action to restrain the release of the records. If the requesting party is the patient or, if represented, the attorney for the patient, the affidavit shall state that the patient authorizes the release of the records pursuant to the subpoena. No such subpoena shall be issued by any clerk unless the required affidavit is included with the request.
* * *
[6] Although NRMC had no medical records to produce, we will address the reasonable expectation of privacy, vel non, in medical records as the State sought to obtain the defendant's medical records without a warrant.
[7] The statute at issue, portions of the New York State Controlled Substances Act of 1972, N.Y.Pub. Health Law § 3300 et seq. (McKinney, Supp. 1976-1977) is New York's version of the Uniform Controlled Substances Act. Louisiana's version of the Uniform Controlled Substances Act is found at Title 40, Chapter 4, Part X, La.Rev.Stat. 40:961 to 40:995.
[8] The other two possible means of public disclosure were (1) failure of the Health Department employees to maintain proper security, either deliberately or negligently, or (2) that a doctor, pharmacist or the patient could voluntarily reveal information on a prescription form. The Court found this second possibility existed under the prior law, and, with regard to the first possibility, that there was no support in the record or the experience of the two states New York had emulated for an assumption that the security provisions of the statute would be administered improperly. Whalen, 429 U.S. at 600-601, 97 S.Ct. at 877.
[9] Although observing the issue was not settled, that court additionally noted that was an issue it need not decide in that case. Douglas, 419 F.3d at 1103. Douglas had filed an action pursuant to 42 U.S.C. § 1983 alleging her right to privacy was violated by a police search of her pharmacy prescription records executed pursuant to a court order. Although the court found Douglas had a constitutional right to privacy in her prescription records, Douglas failed to carry her burden of showing that the assistant district attorney's action violated a clearly established constitutional right and therefore, qualified immunity applied. Id. A police sergeant prepared a "Motion and Order to Produce Prescription Information" for the purpose of acquiring Douglas's prescription records from a pharmacy. The ADA "approved the form of the motion and order." Absent a showing that the ADA's action in authorizing the submission of the motion and proposed order to the magistrate violated a clearly established constitutional right, qualified immunity applied. Douglas lacked support for her claim that the Fourth Amendment is implicated by an ADA's mere act of authorizing the submission of a motion and proposed order to the magistrate for the requested issuance of an order approving a search. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568117/ | 300 S.W.2d 431 (1957)
Russell E. DEAN, Appellant,
v.
SAFEWAY STORES, Inc., a Corporation, and Virgil Cochran, Respondents.
No. 45477.
Supreme Court of Missouri, Division No. 2.
March 11, 1957.
Motion for Rehearing or to Transfer to Denied April 8, 1957.
Lyman Field, Rogers, Field, Gentry & Jackson, Kansas City, for appellant.
J. D. James, T. A. Sweeny, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for respondents.
Motion for Rehearing or to Transfer to Court en Banc Denied April 8, 1957.
*432 BARRETT, Commissioner.
Russell Dean claimed that he sustained serious personal injuries on October 29, 1953, when he fell on the parking lot maintained by Safeway Stores in North Kansas City. In this action against the store and its manager, Virgil Cochran, to recover $75,000 damages a jury returned a verdict for $40,000. The trial court was of the view, however, that the defendants' motions for a directed verdict should have been sustained and accordingly set the verdict aside and entered judgment for the defendants. V.A.M.S., Secs. 510.280, 510.290. In the alternative the trial court sustained the defendants' motion for a new trial on seven specified grounds, several of which the appellant Dean concedes to have been discretionary. Thus the single question upon this appeal is whether the issue of the defendants' negligence should have been submitted to the jury or whether it should have been declared as a matter of law that there was no evidentiary basis for the inference of negligence and hence no liability on the part of the defendants for the plaintiff's fall and injuries.
In his petition the plaintiff alleged that he parked his automobile on the parking lot, entered the store and purchased a quantity of groceries, and in the course of returning to his automobile "was caused to trip over a certain large metal hoop." He alleged that the defendants were negligent in three specific respects: (1) after having undertaken to do so, failed to exercise due care to maintain the parking lot in a reasonably safe condition for use by customers; (2) knew or should have known of the presence of the hoop in time to have removed it or warned of its danger; and (3) knew or should have known that it was dark and the parking lot "was not sufficiently illuminated" so that customers could see objects on the parking lot, including the wire hoop, and having assumed the obligation to do so failed to turn on the lights on the parking lot. It is obvious from the petition that the plaintiff relies upon the breach of the duty owed by the owner of premises to his business invitee. 2 Restatement, Torts, Sec. 343; Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813, and the cases and annotations there noted. Despite the recent critical analysis and examination of the essence of the rule as declared and set forth in the Restatement, by distinguished experts in the field of tort law (2 Harper & James, Law of Torts, Secs. 27.12-27.13; Keeton, "Personal Injuries Resulting From Open And Obvious Conditions," 100 Pa.L.R. 629), the doctrine together with all of its technicalities is firmly embedded in the jurisprudence of this jurisdiction, for the time being, and the problem is whether the facts and circumstances of this occurrence reasonably fit into the pattern of the rule as it has been established in Missouri.
The plaintiff parked his automobile on the parking lot about 5:45 o'clock and at that time his wife said "it was dusky dark." His car lights were on but the lights on the parking lot had not been turned on. He was in the store approximately fifteen minutes and was returning to his automobile carrying two sacks of groceries and a sack of eggs and as he walked around the end of another parked automobile "something tripped him" and he fell scattering the groceries over the lot. As he sat on the parking lot, about to get up, he observed, for the first time, an object hanging on his trouser leg or shoe and picked it up and preserved it. His wife assisted in picking up the groceries and as they drove off of the unlighted parking lot the lights were turned on. The next day Dean and his wife reported the incident to the manager and he said, "the boys either neglected to turn them (the lights) on or hadn't gotten around to it yet." It turned out that the fifteen-inch hoop was a wire handle from a banana crate. The plaintiff was unable to show, however, where the handle came from, how it got on the parking lot, how long it had been there, or that anyone connected with the Safeway Store had either caused it to be there or knew of its presence.
*433 Now, it is the plaintiff's theory that the defendants' negligence "consisted in their failure to turn on the lights"; that "failure to illuminate the lot when it was dark was the proximate cause of plaintiff's fall thus obviating the necessity of proving any `notice' with respect to the presence of the wire object which tripped plaintiff." On the other hand, the respondent contends that "negligence could not be based upon failure to light alone, because that condition was at least as obvious to plaintiff as to the defendants. The element that made the dark parking lot not reasonably safe was the metal piece" of which both parties were unaware. It is stated that liability has never been imposed for darkness alone; that "liability has been imposed only where some other condition of which the owner had knowledge combined with the lack of light to make for a dangerous condition." In conclusion the respondent urges that "it is not negligence for an invitor to fail to light, absent a showing of actual or constructive knowledge of some condition (unknown to the invitee) which renders the premises unsafe if not lighted."
As the respondents urge, in most, if not in all, of the cases some other condition or object combined with the lack or insufficiency of light to create the hazard; there was an open pit in a dark basement, a sudden right angle turn in a stairway, an unsafe entrance, a wooden curbing, or an unseen step-off. Annotation 14 A.L.R. 2d 780, 784; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045; Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; McFarland v. Sears, Roebuck & Co., Mo.App., 91 S.W.2d 615; Feucht v. Parkview Amusement Co., Mo.App., 60 S.W.2d 663; Cannon v. S. S. Kresge Co., 233 Mo. App. 173, 116 S.W.2d 559. On the other hand, it is seldom that the object or condition alone creates the hazard; "It is not contended the presence of the step-off, alone, was negligence. It was the absence of light sufficient to enable respondent to see the depression which brought about her fall. The evidence was sufficient to warrant a finding of negligence." Oakley v. Richards, supra [275 Mo. 266, 204 S.W.506]. As a sole or independent act of negligence failure to illuminate has received but little attention in either the cases or the textbooks. It may be that it is impossible (and in this case unnecessary) to separate the failure to light from some other object, condition, or circumstance; however, as has been observed in connection with the liability of landlords, if the duty exists it is indeed difficult to distinguish between failure to light and failure in any other respect as the failure to exercise reasonable care. Annotation 25 A.L.R. 2d 496, 498.
There have been but two cases in which any consideration was given to the problem of whether lack of light alone constituted a breach of the duty to exercise reasonable care. In one, a theater case, Grand-Morgan Theatre Co. v. Kearney, 8 Cir., 40 F.2d 235, 237, the plaintiff fell when he stepped on a crumpled or folded carpet on a raised step. It was held in that case that the trial court had erroneously submitted issues at variance with the pleadings and thereby deprived the defendant of its defense that the carpet was not crumpled or folded. Nevertheless, the court said, (by way of dictum, it is believed):
"We are satisfied the grounds of negligence that the court submitted do not alone constitute negligence, or are so broad and general as to permit the jury to mentally wander in the realm of speculation.
"Whether there was sufficient light, alone, or whether there were ushers, or a sufficient number of ushers in attendance, standing alone, would not constitute negligence. These might be contributing factors, or, under all the facts and circumstances, might be elements, together with other conditions, that might constitute negligence.
"The question here is not whether the theater was dark, nor whether there were ushers present to assist plaintiff to his seat, as these facts and circumstances *434 were known alike to the defendant and the plaintiff, but whether the defendant had the premises in a reasonably safe and suitable condition to protect patrons against injury."
In the other case, Petera v. Railway Exchange Building, Mo.App., 42 S.W.2d 947, 950, an employee of a tenant in an office building fell when she stepped on a slippery substance as she walked down an unlighted corridor to her place of work in the morning. The defendant's liability was disjunctively submitted upon a finding of either the known presence of the slippery substance or failure to have had the corridor lighted. It was held that the jury might find negligence under either hypothesis, but as to the defendant's failure to have turned on the corridor lights Judge Bennick appropriately said:
"Similarly, if due care on the part of defendant required that the lights be burning at the time, as the evidence tends to show, if they had been turned off for a sufficient length of time that defendant might have learned of the fact, and have turned them on, all of which is to be inferred from the testimony, and if the insufficiency of the light caused plaintiff to step upon the soap, and to fall, then defendant might be held to respond in damages, irrespective of whether negligence is to be imputed to it by reason of the presence of the soap upon the floor."
The store manager conceded that it was the policy of the company and a part of his duty, representing the company, to maintain the parking lot in a reasonably safe condition. In safely maintaining the parking lot an adequate lighting system was provided; "It is lighted very well," and when the lights were turned on a person with normal vision "should" be able to see any object on the macadamized lot. Mr. Cochran denied that he had made the statement to Mrs. Dean that the boys had either neglected to turn the lights on or had not gotten around to it on October 29th. He did testify, repeatedly, that the lights were customarily "turned on before dusk." He had no independent recollection of the hour at which the lights were turned on on October 29, but he had "a feeling" that it would have been around five o'clock. Thus it would appear that the duty to illuminate the parking lot was conceded. And from the plaintiff's evidence the jury could find that it was "dusky dark" when the Deans entered upon the premises, that it was dark when Mr. Dean fell, and that, although customarily the lights would have been turned on at five o'clock, they were not turned on until six o'clock, a period of time in which the fact could or should have been discoverable, and, of course, in the circumstances that the defendants had breached their admitted duty. Petera v. Railway Exchange Bldg., supra.
Of course, Mr. Dean must have been aware of the fact that the lights had not ben turned on at "dusky dark" when he entered the parking lot and he must have again observed the fact when he left the store and walked towards his automobile in the dark. But it does not follow as a matter of law from what he must have observed that in returning to his automobile he was guilty of contributory negligence or that he possessed such knowledge as to completely absolve the defendants of liability. In some circumstances the absence of lights, or the presence of but little light, may be so usual or customary, as in certain moving picture theater cases, that, there being no other unusual feature, the invitee may be expected to take care of himself. Davidson v. Missouri Orpheum Corp., 236 Mo.App. 1025, 161 S.W.2d 707; Rogers v. Atlanta Enterprises, 89 Ga.App. 903, 81 S.E.2d 721; 2 Harper & James, Law of Torts, Sec. 27.13, p. 1490. Compare: Oakley v. Richards, supra. The fact that Dean had some knowledge of the darkened condition of the premises did not preclude his use of the parking lot entirely. Although he had some knowledge and should have had some apprehension of the hazard, it may not be said, in all the circumstances, that he "appreciated" the danger. 38 Am.Jur., Sec. 188, p. 864; Bartlett *435 v. Taylor, 351 Mo. 1060, 1070, 174 S.W.2d 844, 850. Then too, there was the handle from the banana crate of which neither the plaintiff nor the defendants had notice or knowledge. And while the presence of the handle may not have been an independent act of negligence it did create a hazard and a situation in which, even in known darkness, the invitee might reasonably expect one condition and was unexpectedly confronted with another. Summa v. Morgan Real Estate Co., 350 Mo. 205, 214, 165 S.W.2d 390, 394; 2 Harper & James, Law of Torts, Sec. 27.13, p. 1491. The plaintiff entered the store when it was "dusky dark" and if he was to return to his automobile it was necessary for him to retrace his steps across the unlighted parking lot; there was no alternative course unless he returned and informed the store that its lights had not been turned on, and certainly reasonable minds could well differ as to the reasonableness of his conduct in the circumstances. Evans v. Sears, Roebuck & Co., Mo.App., 104 S.W.2d 1035; Keeton, "Personal Injuries Resulting From Open And Obvious Conditions," 100 Pa.L.R. 629.
It should be carefully noted that we are not concerned here with the impressiveness of the plaintiff's case in any respect; any such questions were settled when the trial court alternatively granted a new trial. Neither are we concerned with whether in the trial of the case the plaintiff adhered to the theory now advanced either in the instructions offered or in his examination and cross-examination of witnesses. The only matter with which we are concerned is that the trial court has entered a judgment for the defendants, thereby indicating that the plaintiff did not make a submissible case under any theory. And it is our view, as indicated, that reasonable minds could differ, and the inferences of negligence and proximate cause were possible, permissible inferences and, together with the plaintiff's contributory negligence, were questions to be resolved by a jury. Petera v. Railway Exchange Bldg., supra; Oakley v. Richards, supra; Reinagel v. Walnuts Residence Co., 239 Mo.App. 701, 194 S.W.2d 229; Feucht v. Parkview Amusement Co., supra; Stein v. Buckingham Realty Co., Mo.App., 60 S.W.2d 712; Barber v. Kellogg, Mo., 123 S.W.2d 100; annotation 14 A.L.R. 2d 780, 794-797. Accordingly the judgment is reversed and the cause remanded.
BOHLING and STOCKARD, CC., concur.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568133/ | 10 So. 3d 962 (2009)
Joe KNIGHT, Wrongful Death Beneficiaries of Charles Prather, Deceased and Brandi Holland, Wrongful Death Beneficiary of Carolyn Prather, Deceased, Appellants
v.
MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
No. 2008-CA-00897-COA.
Court of Appeals of Mississippi.
April 21, 2009.
*964 A.E. (Rusty) Harlow, Jr., Sabrina Ann Davidson, Kathi Leigh Chrestman, attorneys for appellants.
F. Ewin Henson III, Greenwood, attorney for appellee.
Before KING, C.J., ROBERTS and CARLTON, JJ.
CARLTON, J., for the Court.
¶ 1. Charles and Carolyn Prather died in a car accident after crashing into a bridge on Mississippi Highway 8 in Calhoun County, Mississippi. Their beneficiaries, the Appellants,[1] filed a wrongful death suit against the Mississippi Transportation Commission (MTC). The Appellants claimed in their suit that the MTC had negligently maintained Highway 8 and had failed to warn of dangerous conditions on the road, thus, causing the Prathers' deaths. The MTC moved for summary judgment and claimed immunity under the Mississippi Tort Claims Act (MTCA) pursuant to Mississippi Code Annotated section 11-46-9(1)(d) (Supp.2008). The circuit court granted the MTC's motion for summary judgment. The Appellants argue on appeal that the circuit court erred in granting the MTC's motion for summary judgment because the MTC was not entitled to governmental immunity under section 11-46-9(1)(v) (Supp.2008) of the MTCA. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. While driving in the rain late at night, Charles hydroplaned on Highway 8 and crashed into a bridge. He and his wife, Carolyn, died instantly as a result of the crash. The Appellants subsequently sued the MTC for the Prathers' alleged wrongful deaths. The MTC moved for summary judgment and claimed that it was exempt from liability pursuant to section *965 11-46-9(1)(d) of the MTCA. Section 11-46-9(1)(d) reads:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
. . . .
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]
¶ 3. The circuit court stated the following in its order granting MTC's motion for summary judgment:
The maintenance of Highway No. 8 at the time of the accident required the exercise of engineering judgment and judgment as to the allocation of limited financial resources in order to perform maintenance on the various public highways within the district where the bridge is located.... The maintenance of [Highway 8] at the time of the accident was a discretionary function. The [MTC] used ordinary care in maintaining the bridge and the highway approaching the bridge.[2] The Court is therefore of the opinion that [the] Plaintiffs have failed to convince the Court that the maintenance of [Highway 8] and the bridge in question is ministerial.
¶ 4. The Appellants claim that the MTC was liable for the Prathers' deaths because the MTC had failed to (1) maintain Highway 8 so as to minimize hydroplaning in rainy conditions, (2) put guardrails on the bridge the Prathers crashed into, and (3) warn the public of the dangerous conditions on Highway 8. The Appellants claim that by statute (although they fail to cite to any governing statutory authority regarding the maintenance of highways in their briefs), the MTC is charged with the duty to keep existing bridges and roadways in compliance with the latest safety designs and appurtenances and that the MTC failed to do so in this case. See Miss.Code Ann. §§ 65-1-61 (Rev.2005) and 65-1-65 (Rev.2005) (directing the MTC to consider funding and practicability when maintaining and repairing roads).[3]
¶ 5. The Appellants also claim that the MTC failed to comply with the MTC's "overall objective" in its design manual. The Appellants cite to section 11-2.07.04, allegedly of the MTC's design manual, entitled "Safety Appurtenances," which states, in part, that "[d]uring the design of a 3R project, all existing safety appurtenances should be examined to determine if they meet all the latest safety performance and design criteria." However, the Appellants never contend that the maintenance of Highway 8 was a 3R design project.
¶ 6. The Appellants cite subsections 11-46-9(1)(d), (g), and (v) in support of their proposition that this Court should reverse the trial court's grant of summary judgment *966 and allow this matter to proceed to trial on the issues of fact. Subsections 11-46-9(1)(d), (g), and (v) read as follows:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
. . . .
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
. . . .
(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
. . . .
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]
¶ 7. In turn, the MTC states that the trial court properly granted MTC's motion for summary judgment based on the discretionary exception from liability under section 11-46-9(1)(d). Additionally, the MTC claims that its motion for summary judgment was also properly granted based on supporting documents, which included the affidavit of MTC's former District Two Engineer, Jimmy Dickerson. The MTC contends that Dickerson's affidavit demonstrates that the MTC was authorized by statute to use its discretion in maintaining the roads under its jurisdiction and considered the policy implications of doing so. The MTC states the following in its brief about Dickerson's deposition and affidavit testimony:
Because funds were limited for purposes of performing maintenance on existing state highways such as Mississippi Highway 8, the District Engineer [Dickerson] had to make judgment calls when work appears to be necessary as to what type of work is to be performed in order to maintain or upgrade the various highways within the [d]istrict. There must be a balancing of the competing needs for maintenance within the [d]istrict and judgment calls made as to when and where work will be performed and to what extent any safety upgrades are necessary or desirable considering the funding available for each year and the needs and/or conditions of the various highways within the [d]istrict.
STANDARD OF REVIEW
¶ 8. For a summary judgment motion to be properly granted, no genuine issue of material fact can exist, and the moving party must be entitled to judgment as a matter of law. M.R.C.P. 56(c). We apply a de novo standard of review to a trial court's grant of summary judgment. Moss v. Batesville Casket Co., 935 So. 2d 393, 398(¶ 15) (Miss.2006). "The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact." Howard v. City of Biloxi, 943 So. 2d 751, 754(¶ 4) (Miss.Ct. App.2006).
*967 WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE MTC IS IMMUNE FROM SUIT PURSUANT TO THE MTCA.
¶ 9. The principal statutory law relevant to this case falls under the MTCA pursuant to section 11-46-9(1)(a-y) (Supp.2008). This section is used to determine whether governmental entities and their employees acting within the scope of their duties are immune from liability pursuant to the exemptions found therein. Miss. Dep't of Transp. v. Trosclair, 851 So. 2d 408, 413(¶ 12) (Miss.Ct.App.2003).
¶ 10. The Appellants claim that the MTC bears liability under the MTCA based on section 11-46-9(1)(v) as the rutting on Highway 8 was an unobvious, dangerous condition of which the MTC had knowledge, and, of which, the MTC did not warn the public. The Appellants conclude that the failure to warn of a known, unobvious danger is not discretionary pursuant to section 11-46-9(1)(d). Rather, the Appellants contend it is a ministerial duty to warn pursuant to section 11-46-9(1)(v); therefore, the MTC is not immune from suit in this case.
¶ 11. In turn, the MTC argues that the maintenance of the public highways and the placement of warning signs are discretionary functions pursuant to section 11-46-9(1)(d). Furthermore, the MTC argues that pursuant to Willing v. Estate of Benz, 958 So. 2d 1240, 1254-55(¶ 40) (Miss.Ct. App.2007), the MTC is exempt from liability because if one of the exemptions from liability found in section 11-46-9(1)(a-y) applies, it does not matter if the application of other exemptions in that section involve a question of material fact; summary judgment must be granted on the exemption established as a matter of law.
¶ 12. In order to address the merits of the Appellants' and MTC's arguments, our discussion will cover three areas: (1) strict construction of the MTCA, (2) discretionary acts pursuant to 11-46-9(1)(d), and (3) "Frasier's Octupus."
I. Strict Construction of the MTCA
¶ 13. As to sovereign immunity, "when [the supreme court] abolished common-law sovereign immunity in Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss.1982), [the court] expressly stated that [it][was] doing so because the judiciary was not the appropriate branch of government to regulate sovereign immunity." Wells ex rel. Wells v. Panola County Bd. of Educ., 645 So. 2d 883, 889 (Miss.1994). "Pruett was a mandate to the [L]egislature to assume full responsibility for the regulation of sovereign immunity[.]" Id. In response to Pruett, the Mississippi Legislature passed the MTCA.
¶ 14. In the MTCA, the Mississippi Legislature waived sovereign immunity for the torts of governmental entities and their employees acting within the course and scope of their employment from July 1, 1993, as to the State of Mississippi, and from October 1, 1993, as to its political subdivisions. Miss.Code Ann. § 11-46-5 (Rev.2002). "The immunity is limited to specific claims confined to a certain period of time with significant limits on the measure of damages that can be recovered." Ellisville State Sch. v. Merrill, 732 So. 2d 198, 202(¶ 18) (Miss.1999).
¶ 15. In Ellisville, the court explained that the MTCA was to be interpreted as expressly written or by necessary implication in order to carry out the Legislature's intent to strictly limit the State's waiver of state sovereign immunity. Id. at 201-02 (¶¶ 18-25). The court stated that: "[I]t is obvious the Legislature did not intend for the ... MTCA to be subordinate to other statutes of limitations or legal doctrines of this State." Id. at 202(¶ 24).
*968 ¶ 16. For the above reasons, we strictly construe section 11-46-9(1)(a-y) in accordance with its express wording. See id. at 202(¶ 25) (stating that plaintiffs have "a narrow passage through the previously impenetrable wall of sovereign immunity"); see, e.g., Bunton v. King, 995 So. 2d 694, 696(¶ 9) (Miss.2008) (stating that Mississippi law requires strict compliance with the MTCA's 90-day notice requirement).
¶ 17. The MTCA was amended as late as 2008. "[C]ongressional re-enactment of a statute creates a presumption of legislative approval of the Court's prior interpretations of that statute." Caves v. Yarbrough, 991 So. 2d 142, 153(¶ 42) (Miss. 2008). Hence, a presumption exists that this Court has correctly interpreted the MTCA's provisions applicable in this case since the Legislature has not enacted provisions altering the Court's interpretation of the exemptions and waivers of immunity. See id.
¶ 18. Finally, even if we may not agree with the wisdom of the statutes regarding the waiver of state sovereign immunity passed by the Legislature, we are bound to follow a statute's clear, expressed mandate. See Wells ex rel. Wells, 645 So.2d at 889. The supreme court stated that:
Courts cannot pass judgment upon the wisdom, practicality or even folly of a statute. We must follow it unless it clearly impinges upon some Constitutional mandate, and our Constitution neither gives wise statutes passing grades nor flunks the improvident ones. This is solely the prerogative of the people acting through their Legislature.
Id. (quoting Presley v. Miss. State Highway Comm'n., 608 So. 2d 1288, 1295 (Miss. 1992)).
II. Determining Whether an Act is Discretionary Pursuant to Section 11-46-9(1)(d)
¶ 19. "In determining whether governmental conduct is discretionary the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives." Dancy v. E. Miss. State Hosp., 944 So. 2d 10, 16(¶ 18) (Miss.2006) (citation omitted).
¶ 20. Regarding the first question, this Court must first determine whether the function is discretionary or ministerial. Id. at 16(¶ 19). A duty is discretionary if it requires an official to use her own judgment and discretion in order to carry out the duty. Id. (citation omitted). "On the other hand, `a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee's judgment.'" Miss. Dep't of Human Servs. v. S.W., 974 So. 2d 253, 258(¶ 11) (Miss.Ct.App.2007); see, e.g., Barrett v. Miller, 599 So. 2d 559, 567 (Miss. 1992) (stating that sheriff deputies were not exercising discretionary authority in searching a home where the deputies were acting under a search warrant which gave them the authority to search and set forth parameters in which the search should be carried out). Moreover, "[t]he United States Supreme Court has explained that `[t]he requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because `the employee has no rightful option but to adhere to the directive.'" Id. (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)).
¶ 21. As to the second question, if the act at issue does require discretion or *969 judgment, then for sovereign immunity to be triggered under the discretionary exemption, the act must also have been subject to some form of public policy analysis. Pritchard v. Von Houten, 960 So. 2d 568, 581(¶ 34) (Miss.Ct.App.2007). The supreme court has stated that "when established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a [g]overnment agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Dancy, 944 So.2d at 18(¶ 23) (quoting United States v. Gaubert, 499 U.S. 315, 324, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)).
¶ 22. Under our case law, there is "a wide variety of governmental conduct [that] has been held ... to involve the implementation of social, economic or political policy." Jim Frasier, Recent Developments in Mississippi Tort Claims Act Law Pertaining to Notice of Claim and Exemptions to Immunity Issues: Substantial/Strict Compliance, Discretionary Acts, Police Protection and Dangerous Conditions, 76 Miss. L.J. 973, 991 (2007). These include the following cases:
The manner in which a police department supervises, disciplines and regulates its police officer[s], City of Jackson v. Powell, 917 So. 2d 59, 74 (Miss.2005); the decision to grant or deny parole, Doe v. State ex rel. Mississippi Dep't of Corr., 859 So. 2d 350 (Miss.2003); the placement or non-placement of traffic control devices or signs, Barrentine v. Miss. Dep't of Transp., 913 So. 2d 391 (Miss.Ct.App.2005); the acts or omissions of high school football coach which caused a player to suffer heatstroke during practice, Harris ex rel. Harris v. McCray, 867 So. 2d 188 (Miss.2003); and the decision of emergency medical personnel to use a "load and go" approach on an expectant mother. Sanders v. Riverboat Corp. of Mississippi-Vicksburg, 913 So. 2d 351 (Miss.Ct.App.2005).
Id.
¶ 23. Our inquiry thus turns on whether the challenged governmental conduct required the MTC to exercise its own policy-based judgment, or whether the actors were instead bound to perform their duties in accordance with mandatory directives imposed by law. See S.W., 974 So.2d at 258-59(¶ 11). We now examine the statutes governing the maintenance and repair of highways which are found in sections 65-1-61 and 65-1-65.
¶ 24. Regarding paving, section 65-1-61 states in part that:
It shall be the duty of the Transportation Commission to have the Transportation Department construct, reconstruct and maintain, at the cost and expense of the state, all highways under its jurisdiction up to such standards and specifications and with such surfacing material as the Transportation Commission may determine, such paving to be done for each project as rapidly as funds are made available therefor and, as nearly as practicable, immediately upon the completion of all work performed pursuant to grade, drainage and bridge contracts for the project.
(Emphasis added). In the above statute, the phrase "as the [MTC] may determine" indicates that the MTC's employees must use their own "judgment or discretion" in maintaining highways in MTC's jurisdiction according to its own standards and specifications. See Barton v. Blount, 981 So. 2d 299, 303(¶ 13) (Miss.Ct.App.2007) (stating that "[w]hen a statute is plain and unambiguous, we must afford the statute its plain meaning").
¶ 25. Regarding maintenance, section 65-1-65 states:
*970 It shall be the duty of the State Highway Commission to have the State Highway Department maintain all highways which have been or which may be hereafter taken over by the State Highway Department for maintenance in such a way as to afford convenient, comfortable, and economic use thereof by the public at all times. To this end it shall be the duty of the director, subject to the rules, regulations and orders of the commission as spread on its minutes, to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained state highway system, so that said highways may be kept under proper maintenance and repair at all times.
(Emphasis added). Under section 65-1-65, the MTC's director is under a duty, subject to the rules and regulations of the MTC, to properly maintain and repair the highways under the MTC's jurisdiction. See Mohundro v. Alcorn County, 675 So. 2d 848, 853-54 (Miss.1996) (stating that "road maintenance and repair are discretionary rather than ministerial functions").
¶ 26. The statute governing the placement of traffic-control devices is found in Mississippi Code Annotated section 63-3-303 (Rev.2004). Section 63-3-303 states in part:
The commissioner of public safety and the state highway commission shall place and maintain such traffic-control devices conforming to its manual and specifications, upon all state and county highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.
(Emphasis added); see Willingham v. Miss. Transp. Comm'n, 944 So. 2d 949, 953 (¶¶ 12-14) (Miss.Ct.App.2006) (stating that the clear meaning of section 63-3-303 is to create a statutory duty that must be carried out in a discretionary matter).
¶ 27. The above statutes do not impose any specific directives "as to the time, manner, and conditions for carrying out" the MTC's duty in maintaining highways or posting traffic-control or warning devices; thus, the above duties are not ministerial in nature. See Collins, 876 So.2d at 289 n. 9. In fact, all three statutes require that the MTC use its judgment and discretion in carrying out the duties prescribed therein. See Dancy, 944 So.2d at 16(¶ 19).
¶ 28. Finally, the duty to maintain highways and place warning signs clearly requires the MTC to consider the policy considerations of doing so. See id. at 18(¶ 23) (stating that "it must be presumed that [an] agent's acts are grounded in policy when exercising ... discretion"); cf. Stewart v. City of Jackson, 804 So. 2d 1041 (Miss.2002) (stating that section 11-46-9(1)(d) did not provide immunity to the city and the driver as the discretionary act of deciding to help an invalid exit a van did not implicate any social, economic, or political policy).
¶ 29. In applying the law to the facts of the case, the record clearly reflects that the MTC used its discretion and considered the policy implications of maintaining Highway 8 in the way that it did. Highway 8 was within Dickerson's, the MTC's former District Two Engineer, district at the time he was District Engineer. Dickerson stated both in his deposition testimony, as well as in his affidavit, that he was responsible for making judgment calls regarding the maintenance of highways in his district as to when work appeared to be necessary, what type of work was to be performed in such a situation, and in what order the work was to be done. In fact, Dickerson himself examined Highway 8 and found it to be within MTC *971 standards and regulations and made policy recommendations accordingly.
¶ 30. In turn, the Appellants do not point to any evidence that the MTC did not have discretionary authority to maintain Highway 8 in the manner that it did. Although the Appellants briefly cite to a section in the MTC's Design Manual which offers an "overall objective" as to the design of the highways within the MTC's jurisdiction, the Appellants fail to cite to any of MTC's own internal guidelines and policies that it must maintain its roads in ways, in which the Appellants contend, it should have been done. See Miss.Code Ann. § 65-1-65; cf., S.W., 974 So.2d at 259 (¶¶ 12-13) (finding that DHS was not immune from suit pursuant to section 11-46-9(1)(d) when DHS had a duty to investigate allegations of abuse pursuant to Mississippi Code Annotated section 43-15-5 (Rev.2004) and that to carry out these duties, DHS had developed mandatory guidelines and procedures that DHS had failed to comply with in investigating the alleged abuse of S.W.).
¶ 31. For the above reasons, we find that the trial court properly granted the MTC's motion for summary judgment based on the discretionary exception from liability pursuant to section 11-46-9(1)(d).
III. "Fraisier's Octupus"
¶ 32. Jim Frasier created the term "Frasier's Octopus" in his 1999 law review article entitled, "A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act: Employees' Individual Liability, Exemptions to Waiver of Immunity, Non-jury Trial, and Limitation of Liability," 68 Miss. L.J. 703 (1999). In Frasier's 2007 article on the same subject matter, Frasier states that the exemptions [in section 11-46-9] "are disjunctive in nature, and thus, `like an octupus's arms; even if one does not get you, another one may.'" Frasier, 76 Miss. L.J. at 982-83 (quoting Frasier, 68 Miss. L.J. at 743).
¶ 33. We find that the concept behind "Frasier's Octupus" applies in this case. Because we have found summary judgment appropriate as to section 11-46-9(1)(d), we need not engage in any analysis regarding the Appellants' claim as to section 11-46-9(1)(v). In other words, "[as] established by precedent of both this Court and the supreme court, where any of the immunities enumerated in section 11-49-9(1) apply, the government is completely immune from the claims arising from the act or omission complained of." Willing, 958 So.2d at 1255(¶ 40); see State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 842 (Miss.1994) (stating that "[w]hen the State is sued to determine whether a state statute or action is unconstitutional, the State cannot be held liable for damages if the conduct falls within one of the exceptions found in [Mississippi] Code [Annotated] [s]ection 11-46-9"). For the above reasons, the Appellants' argument that section 11-46-9(1)(v) saves their case is without merit.
¶ 34. THE JUDGMENT OF THE CALHOUN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.
NOTES
[1] Joe and Joyce Knight filed a complaint as the wrongful death beneficiaries of Charles Prather. Brandi Holland filed a complaint as the wrongful death beneficiary of Carolyn Prather. By agreement between the parties, the two cases were consolidated for discovery and trial. Joyce Knight dismissed her claim with prejudice by an agreed order dated December 29, 2004. For the sake of clarity, we will refer to Joe Knight and Brandi Holland as the "Appellants" throughout this opinion.
[2] We note: "The plain language of [11-46-9(1)(d)] indicates that even if a governmental entity abuses its discretion when performing a discretionary function or duty, it is immune from liability." Dozier v. Hinds County, 354 F. Supp. 2d 707, 713-14 (S.D.Miss.2005). "Because of the plain language of the statute, reading a duty of ordinary care into the statute came under substantial criticism." Id. at 714 (citing Robert F. Walker, Comment, Mississippi Tort Claims Act: Is Discretionary Immunity Useless?, 71 Miss. L.J. 695 (Winter 2002)). In Collins v. Tallahatchie County, 876 So. 2d 284, 289-90(¶ 17) (Miss.2004), the supreme court rejected earlier precedent and expressly stated that section 11-46-9(1)(d) does not impose a duty of ordinary care.
[3] As we discuss in our analysis, pursuant to sections 65-1-61 and 65-1-65, we disagree with the Appellants' contention the MTC is "charged with the duty to keep existing bridges and roadways in compliance with the latest safety designs and appurtenances." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568102/ | 300 S.W.2d 623 (1957)
J. R. STRAYHORN et al., Petitioners,
v.
Ruth Legett JONES et al., Respondents.
No. A-5871.
Supreme Court of Texas.
March 6, 1957.
Rehearing Denied April 24, 1957.
*625 Adkins, Folley, McConnell & Hankins, Amarillo, McMahon, Smart, Walter, Sprain & Wilson, Abilene, Lester Whipple, San Antonio, Sayles & Sayles, Abilene, for J. R. Strayhorn et al.
John Ben Shepperd, Atty. Gen., Burnell Waldrep, Asst. Atty. Gen., A. T. Mullins, Atty. for General Land Office, Austin, Will D. Davis, Asst. Atty. Gen., for State of Texas.
Wagstaff, Harwell, Alvis & Pope, Abilene, for Ruth Legett Jones et al.
Harry G. Dippel, Ft. Worth, Morris Watson, Roby, Andrews, Kurth, Campbell & Bradley, W. M. Streetman and Richard F. Burns, Houston, for General Crude Oil Co. and Continental Oil Co.
Ratliff, Conner & Walker, Spur, Fountain, Cox & Gaines, Joyce Cox, Houston, Vinson, Elkins, Weems & Searls, Tarlton Morrow and Ben H. Rice, III, Houston, for Texas Gulf Producing Co. and Wrightman et al.
Shank, Dedman & Payne, Robert H. Dedman, Dallas, Erwin, Wagner & Hodson, Willard B. Wagner, Jr., Willard B. Wagner, Williams, Lee & Kennerly, Jesse J. Lee, Houston, for Mrs. Maggie Wood, et al. (Lamar Hunt and The Superior Oil Co.)
Stubbeman, McRae & Sealy, Midland, for Kewanee Oil Co., et al.
Childers & Childers, Abilene, for Joe E. Childers et al.
*626 GRIFFIN, Justice.
This was an action in trespass to try title filed in the District Court of Kent County, Texas, by Ruth Legett Jones and other plaintiffs. The pleadings of Ruth Legett Jones and other plaintiffs put in issue the title to about 141.27 acres of land in Sections 1, 3 and 5 of the John Rodman Survey in Kent County, Texas, most of which land is located in the bed of the Salt Fork of the Brazos River. All parties stipulated that this river was a navigable stream under Article 5302, Vernon's Annotated Texas Civil Statutes. A group of intervenors, who aligned themselves with the plaintiff, put in issue the title to all of Sections 3 and 5 and the south one-half of Section 1 of the Rodman Survey. The State of Texas, as intervenor, put in issue the portion of the Salt Fork of the Brazos River located in Sections 1, 3 and 5 of the John Rodman. The original plaintiffs (respondents) and the intervenors aligned with them plead the statutory action of trespass to try title and adverse possession and title by limitation under the three, five and ten year statutes. The intervenors additionally plead the twenty-five year statute. Vernon's Ann.Civ.St. art. 5519.
Title to a small tract of land located in Sections 1 and 3, John Rodman, was also sought to be recovered by plaintiffs, Ruth Legett Jones et al. Various parties holding oil, gas and other mineral leases under plaintiffs and intervenors also intervened seeking to establish their respective interests in the lands sued for.
In the trial on the merits defendants did not file a cross action, but stood on their plea of not guilty and general denial. The evidence showed the entire controversy to be over 239 or more acres of land in Sections 1, 3 and 5 and that such land was in the bed of the Salt Fork of the Brazos River and in tracts contiguous to the river. The case was tried before a jury who returned a verdict, and judgment was rendered by the court in favor of the plaintiffs and intervenors (respondents) and against the defendants and the State of Texas.
Defendants duly filed a motion for instructed verdict, a motion to disregard certain findings of the jury, a motion for judgment non obstante veredicto, and a motion and an amended motion for a new trial; all of which were overruled, and defendants perfected their appeal to the appeal to the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, which court affirmed the judgment of the trial court. 289 S.W.2d 321. Defendants Strayhorn et al. applied for and were granted a writ of error to the judgment of the Court of Civil Appeals.
All parties will be designated as they appeared in the trial court. We will first dispose of the claim urged by the State of Texas that there is an excess of approximately 19 acres above the 640 acres patented in each of Sections 1, 3 and 5, John Rodman; that such excess is in the bed of the Salt Fork River and that the State is the owner of such excess as the sovereign of the soil and by virtue of the provisions of Section 2, Article 5414a, Vernon's Annotated Texas Civil Statutes, commonly known and hereinafter referred to as the "Small Bill." Generally speaking, the Small Bill confirmed and ratified title to the patentees, awardees and their assigns of patents which had been issued and outstanding for a period of ten years prior to March 3, 1929 which was the effective date of the Small Bill, and which patents had not been cancelled or forfeited; and which patents and awards were to lands lying across or partly across water courses or navigable streams, and including the beds of such navigable streams. The Salt Fork of the Brazos River was included within the field notes of Sections 1, 3 and 5, John Rodman, as patented. We have attached to our opinion a sketch of the lands, including the river bed which is the subject of this litigation. The Small Bill, Section 2, provides, among other things that "* * * nor shall [this Act] relinquish or quit-claim any number of *627 acres of land in excess of the number of acres of land conveyed to said patentees or awardees in the original patents granted by the State, * * *." If there is any acreage above 640 acres (including the acreage in the river bed) in any of Sections 1, 3 and 5, then the State is entitled to recover such excess acreage. Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728, 734 (7). It is the contention of plaintiffs that there is no more than 640 acres, including the river bed, in any one of the three sections; that, in fact, each section has less than 640 acres, and therefore the State is not entitled to recover any land at all.
The Rodman Block is a junior block to the adjoining blocks on the north, east and south. The Rodman consists of 13 sections, and the field notes for each, as well as the patents issued on each, call for a tract of land 1900 varas square, and totaling 640 acres. Applications to purchase Sections 1 to 10, inclusive, in the Rodman Survey were dated July 12, 1882, and the applications to purchase Sections 11 to 13, inclusive, were dated July 18, 1882. Louis C. Wise surveyed all 13 sections of the Rodman as one piece of work. The field notes for each of the 13 sections were issued on the same day in 1882, and in 1884 patents
*628 were issued for each section calling for 640 acres of land. The total acreage patented was 8,320 acres, and payment was made by the patentees for a total of 8,320 acres. A resurvey of the Rodman Block established a conflict between the Rodman on the south and east with a senior block of surveys. As a result, it was determined that the Rodman, as it was located on the ground, contained only 7,454.6 acres of land creating an actual deficit of 865.4 acres between what was patented and paid for by the patentees and their assigns and what was actually received. It was stipulated that the northwest corner of Section 12, H. & G. N. Ry. Co., Block 1, was an original corner. This corner is also the southeast corner of Section 1, Block 2, H. & G. N. Ry. Co. and is the southwest corner of Section 13, Block 1, H. & G. N. Ry. Co. Wise begins his field notes of the 13 Rodman sections at this corner, which he calls for as the northeast corner of Section 1, John Rodman, and from this corner builds the 13 sections. Throughout the whole of the Rodman block all the sections are tied together and each section is dependent for its location on the section immediately preceding it. That section, in turn, is dependent upon the section which precedes it. Although as many as nine different surveys had been made by various surveyors in later years not one surveyor found any of the Wise corners or lines on the ground except the one all parties stipulated to be an original corner and being the northeast corner of Section 1, Rodman. Some of the surveyors, attempting to reconstruct Wise's work, prepared field notes that showed an excess of 19 acres in each of Sections 1, 3 and 5, Rodman, and it is upon this testimony that the State relies for recovery. This excess is accounted for by the fact that the later surveyors made the north and south boundary lines of each of these three sections approximately 1955 varas in length. The length of these lines was arrived at because the corners established on the ground by these later surveyors showed the distance between the southeast and southwest corners of Section 1, Block 2, H. & G. N. Ry. Co. and of Section 12, Block 1, H. & G. N. Ry. Co. to be approximately 1955 varas. Since Wise's original field notes for the Rodman Sections 1 and 5 called for adjoiner with the above sections, and also called for the southeast and southwest corners of the sections in the H. & G. N. Ry. Co. Blocks 1 and 2 the State seeks to extend the north lines of Sections 1 and 5, Rodman, to a distance of 1955 varas. This would cause an excess of approximately 19 acres in Sections 1 and 5, Rodman.
The State's contention is that these later surveys, although none of the original Wise corners of the Rodman were found on the ground, show, as a matter of law, that excess acreage actually exists in Sections 1, 3 and 5. The south boundary lines of Sections 1, 3 and 5 would be extended a corresponding amount because the Wise field notes place the southeast and southwest corners of these sections at 1900 varas south of their respective northeast and northwest corners. The testimony of all surveyors shows that the north boundary line of Section 1, John Rodman, is a common line with the south boundary line of Section 1, Block 2, H. & G. N. Ry. Co., and the north boundary line of Section 5, John Rodman, is a common line with the south boundary line of Section 12, Block 1, H. & G. N. Ry. Co. The field notes and patent to Section 1, Rodman, begin at the southeast corner of Section 1, Block 2, H. & G. N. Ry. Co. (the only original corner found and which corner was stipulated by all parties); thence south 1900 varas to a stake and pile of rocks (not found by any surveyor testifying); thence west 1900 varas to stake in prairie; thence north 1900 varas to southwest corner of Section 1, Block 2, H. & G. N. Ry. Co.; thence east 1900 varas to place of beginning. This makes the northeast and northwest corners of Section 1, John Rodman, common corners with the southeast and southwest corners of Section 1, Block 2, H. & G. N. Ry. Co. as these corners then existed. We have *629 examined the original field notes of Section 1, Block 2, H. & G. N. Ry. Co. prepared on June 13, 1873 by Wm. Nelson and these field notes call for the south line of Section 1, Block 2, H. & G. N. Ry. Co. to be 1900 varas long. In other words, they place the southwest corner 1900 varas west of the southeast corner. Since none other than the original monument made by Wise for the northeast corner of Section 1, John Rodman, which is also the southeast corner of Section 1, Block 2, H. & G. N. Ry. Co. and the corner stipulated by all parties, was found, (nor were found any others of the original corners on the south Block lines of H. & G. N. Ry. Co. Blocks 1 and 2) the above evidence supports the jury finding that the north boundary of Section 1, Rodman, was only 1900 varas long. All of the corners found on the south block lines of H. & G. N. Ry. Co. Blocks 1 and 2 were put in by Surveyor Williams in 1902 and later. The original field notes of the Rodman show that the southeast and southwest corners of Section 1, John Rodman, are 1900 varas apart and thus the south boundary line of Section 1, John Rodman, would be only 1900 varas long as called for in Wise's field notes, in the patent and as found by the jury. The Wise field notes and the patent to Section 3, John Rodman, call for the south boundary line of Section 1, John Rodman and the north boundary line of Section 3, John Rodman, to be a common line and only 1900 varas long, as was found by the jury. The evidence supports the findings of the jury that Sections 1 and 3, John Rodman, as originally surveyed by Wise and as patented and as then located on the ground, contained only the 640 acres called for. Therefore, there was and is no excess land within the limits of these surveys to be recovered by the State.
Section 5, John Rodman lies immediately south of Section 12, Block 1, H. & G. N. Ry. Co. The field notes for Section 5, John Rodman begin at the northeast corner of Section 3, John Rodman, also the southwest corner of Section 12, Block 1, H. & G. N. Ry. Co. and the northwest corner of Section 5 and call for each of its boundaries to be 1900 varas long. The call for the east boundary line of Section 5 begins at its southeast corner, "thence north 1900 vrs to the S. E. corner Sec. No. 12, Block 1, H. & G. N. R. R. Co.; Thence West 1900 vrs to the place of beginning." This makes the north corners (northeast and northwest) of Section 5 common corners with south corners (southeast and southwest) of Section 12, Block 1, H. & G. N. Ry. Co. and the calls make the north line of Section 5, John Rodman, which is common with the south line of Section 12, Block 1, H. & G. N. Ry. Co., only 1900 varas long and the common corners 1900 varas apart. We have examined the original field notes of Section 12, Block 1, H. & G. N. Ry. Co., prepared by Wm. Nelson on June 6, 1873, and the corrected field notes prepared by Louis C. Wise on May 1, 1882, and find that each set of field notes calls for the south boundary line of Section 12, Block 1, H. & G. N. Ry. Co. to be 1900 varas from its southwest corner to its southeast corner. We note that Wise prepared the corrected field notes of Section 12, Block 1, H. & G. N. Ry. Co. in May, 1882, and the field notes for the Rodman sections in September 1882. The evidence supports the jury's finding that Section 5, John Rodman contained only 640 acres and that its boundary lines are 1900 varas long.
We hold that the Rodman Block is a system survey done at the same time. There is no evidence in this record to show that Wise did not construct his Rodman Block as his field notes show he did. Wise constructed his surveys from the one and only original corner, and he constructed Sections 1, 3 and 5, Rodman, to contain 640 acres each and with the boundary lines of each 1900 varas long.
The presumption is that Wise constructed his surveys and ran his course and distance as called for by him in his field notes. State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228, 232 (1, 2); Worthington v. Boughman, 84 Tex. 480, 19 S.W. 770; *630 Tippett v. Woolley, Tex.Civ.App., 230 S.W.2d 283, 289 (1, 2). Unless later surveyors can, by following the original surveyors' footsteps, show that the original surveyor's calls are a mistake and incorrect, the survey must be constructed as called for by the original surveyor. Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149; Carmichall v. Stanolind Oil & Gas Co., Tex.Civ.App., 256 S.W.2d 129; Schnackenberg v. State, Tex.Civ.App. 1921, 229 S.W. 934, no writ history; Duval County Ranch Co. v. Rogers, Tex.Civ.App. 1941, 150 S.W.2d 880 (2), ref.; Brooks v. Slaughter, Tex.Civ.App. 1920, 218 S.W. 632, no writ history.
The jury found in response to special issues that each of Sections 1, 3 and 5, as originally located by the Surveyor L. S. Wise, did not contain more than 640 acres. The jury also found that Wise ran the lines of each of these three sections to be 1900 varas in length and on the course as called for in his field notes. The Court of Civil Appeals held that such findings were supported by the evidence.
There being found on the ground only the stipulated original corner, and the jury findings that Sections 1, 3 and 5, John Rodman, contained no excess above the 640 acres patented, the original field notes must be respected. The judgment of the Court of Civil Appeals that the State take nothing is affirmed.
We shall next discuss the rights of R. G. Maben, Jr., Frank Stewart, Mrs. Maggie Wood and their assignees in and to any portion of the river bed. They have sufficient common interest that it will save time to combine them under one discussion, noting such individual differences as may be pertinent. Sections 1, 3 and 5, Rodman, and Section 12, Block 1, H. & G. N. Ry. Co. were a part of what is sometimes referred to as the Boley Brown Ranch. The Salt Fork of the Brazos River runs through all four of these sections, and the river is within the boundaries of each of these sections as surveyed and patented. On April 1, 1924 W. W. Barron purchased this ranch of some 21,000 acres from its then owner, D. R. Kendall. Kendall conveyed the ranch to Barron by warranty deed reserving vendor's lien notes to secure a payment of a portion of the purchase price. The Salt Fork was stipulated to be a navigable stream and although the river bed was included in the area patented and conveyed by Kendall to Barron, no title to the river bed adverse to the State passed from Kendall to Barron. City of Austin v. Hall, 93 Tex. 591, 57 S.W. 563; State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065; Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728; Heard v. State, 146 Tex. 139, 204 S.W.2d 344; Mitchell v. Town of Refugio, Tex.Civ.App. 1954, 265 S.W.2d 261, wr. ref.; Article 5302, Vernon's Annotated Civil Statutes.
By deed dated August 1, 1924, but not acknowledged until December 1924, Barron conveyed by warranty deed 1,542.9 acres of land to J. A. Price. Included in this conveyance were all of Sections 3 and 5, John Rodman lying west and north of the Salt Fork. Intervenors Stewart, holder of the Price title, and those claiming under him, contend that this conveyance from Barron to Price, plus a correction deed executed in October 1930 by Barron et al. to J. E. Johnson, grantee under Price of the lands in Sections 3 and 5, included all the land down to the edge of the bed of the Salt Fork of the Brazos River. Defendants, Strayhorn et al. contend that land was conveyed only to the limits of the field notes set out in such deed. The original deed described the lands conveyed by section numbers and by a description reading in part as follows:
"Beginning at the N.W. corner of Sec. 4 (John Rodman) * * *; thence South 1568.16 vrs to a point on the left bank of White River from which a cottonwood tree 10 bears S. 78 Deg. E. 19.1, * * * Thence following the meanderings of White River and the Salt Fork of the Brazos to a point in the north line of Sec. No. 3. * * *." *631 Then follow a number of short calls giving variation and length of each until the point on the north line of Section 3 is again reached. It is clear from a reading of these calls that they are made for the purpose of following the meanderings and sinuosities of White River until it merges with the Salt Fork some mile southwest of the southwest corner of Section 3, John Rodman and then following the Salt Fork to the point in the north boundary line of Section 3. The description of that part of Section 5 lying west of the river was set out in a correction deed later given by Barron and Price to one Johnson, and was designated as "Third Tract." The beginning point is the same point as that referred to in the calls on Section 3 as the point where the left bank of the Salt Fork first intersects the east boundary of Section 3. The course and distance calls follow the meanders of the river to the northern intersection of the left bank of Salt Fork with common boundary of Sections 3 and 5, and thence south with the west line of Section 5-805.5 vrs. to the place of beginning.
On November 29, 1924, W. W. Barron et ux. conveyed by warranty deed to A. Wood, predecessor in title to Maggie Wood et al., all of the land abutting the south bank of the Salt Fork of the river in Sections 3 and 5, John Rodman. The description in this conveyance describes the land conveyed as follows: "Fourth Tract:Being a part of Section No. 3 and a part of Section 5 of the John Rodman Survey following the south bank of the Salt Fork of the Brazos River, * * *". Here follow calls for course and distance showing the surveyor is describing the course of the Salt Fork.
On February 6, 1925, W. W. Barron by warranty deed conveyed to R. G. Maben, Jr. "the South one-half (S½) of Section No. One (1) of the John Rodman Survey in Kent County, Texas, described by metes and bounds as follows: Beginning at the S.W. corner of Section No. 1 * * *; Thence N. 88-40 E. 1544 vrs. to the left Bank of the Salt Fork of the Brazos River; Thence following the left bank of said river to a point * * *, the following are the meanderings of the left bank of said river * * *," and here follow course and distance calls showing the surveyor is following the river. (Emphasis added).
Mr. Yeatts and Mr. Estes, surveyors who had run the calls in all three of the above deeds, testified that these meander calls sometimes go into the bed of the river; sometimes stay upon the bank; weave back and forth, but generally follow the sinuosities of the stream. The various owners built fences on their respective river fronts.
It was stated by this Court in the case of Stover v. Gilbert, 1923, 112 Tex. 429, 247 S.W. 841, with regard to whether or not course and distance calls meandering the Brazos River were the limits of the tract conveyed, or whether the tract was bounded by the Brazos River, as follows:
"* * * It is a rule of general acceptation that meander lines of surveys of land adjacent to or bounding upon a stream are not to be considered as boundaries, but they are to follow the general course of the stream, which in itself constitutes the real boundary * * *.
"The rule is concisely stated in Corpus Juris, book 9, p. 189, as follows:
"`The general rule adopted by both state and federal courts is that meander lines are not run as boundaries of the tract surveyed, but for the purpose of defining the sinuosities of the banks of the stream or other body of water, and as a means of ascertaining the quantity of land embraced in the survey. The stream, or other body of water, and not the meander line as actually run on the ground, is the boundary, the purpose of meander lines being merely for the benefit of the government in ascertaining the quantity of land in the survey for which it requires payment.'
*632 "In Ruling Case Law, book 4, p. 97, the same rule is expressed in this language:
"In surveying land adjacent to a stream, whether navigable or not, lines are often run from one point to another along or near the bank or margin of the stream, in such a manner as to leave a quantity of land lying between these lines and the thread or bank of the stream. These are called meander lines, and they are not the boundaries of the tract, but they merely define the sinuosities of the stream which constitute the boundary, and as a general rule the mentioning in a deed or grant of a meander line on the bank of a river as a boundary, will convey title as far as the shore unless a contrary intention is clearly apparent."
See also Rudder v. Ponder, 1956, Tex., 293 S.W.2d 736(5); Johnson v. Phillips Petroleum Co., Tex.Civ.App.1953, 257 S.W.2d 813, no writ history; Teal v. Powell Lumber Co., Tex.Civ.App.1953, 262 S.W. 2d 223(8), no writ history; Burkett v. Chestnutt, Tex.Civ.App.1919, 212 S.W. 271, no writ history; McCombs v. McKaughan, Tex.Civ.App.1946, 195 S.W.2d 194, wr. ref.; State v. Atlantic Oil Producing Co., Tex. Civ.App.1937, 110 S.W.2d 953, wr. ref.; State v. Arnim, Tex.Civ.App.1943, 173 S.W.2d 503, 508 (3-7), ref. w. o. m.; 7 Tex.Jur. 128, Sec. 9; 11 C.J.S., Boundaries, § 30, p. 572-573.
Another good reason for extending the title of grantees to the bed of the stream is that they might be able to enjoy the riparian rights which they are entitled to by virtue of owning land adjoining the river. These rights are discussed in Motl v. Boyd, 1926, 116 Tex. 82, 286 S.W. 458, 467; American Law of Property, Vol. III, Sec. 12.32, pp. 265, et seq.; Kinney on Irrigation and Water Rights, 2d Ed., Vol. 1, p. 549, Secs. 334, et seq.; 65 C.J.S., Navigable Waters, § 122, p. 255.
The fact that the patents to the four sections cross a navigable stream did not make such patents void. The title to the river bed was in the original patentee and his assigns and was valid until set aside by proper judicial proceedings brought by the Attorney General on behalf of the State. Third parties could not question the title to the river bed held by such patentees or awardees and their assigns. Fitzgerald v. Robison, 1920, 110 Tex. 468, 220 S.W. 768; State v. Bradford, supra; Dunn v. Wing, 1910, 103 Tex. 393, 128 S.W. 108; O'Keefe v. Robison, 1927, 116 Tex. 398, 292 S.W. 854(3); King v. Schaff, Tex.Civ.App., 204 S.W. 1039, 1041, 2nd col., no writ history; Bunnell v. Sugg, Tex. Civ.App.1911, 135 S.W. 701, 703, 2nd col., no writ history, but cited with approval in State v. Bradford, 50 S.W.2d at page 1069. Most of the cases used an expression "that as between third parties this land [river bed] is titled land" or some similar expression. As to the rights of third parties the land being titled land it follows that all the rights Barron had in the west and south one-half of the bed of the Salt Fork was an appurtenance attaching to the land abutting the river on the west and south sides thereof, and therefore, in the absence of an express reservation, passed to Price, Wood and Maben and their assigns. In the case of Stradley v. Magnolia Petroleum Co., Tex.Civ.App.1941, 155 S.W.2d 649, 651, wr. ref., there are quotations from various authorities of which the following from 26 C.J.S., Deeds, § 106, p. 903, is appropos:
"`It is a general rule that upon the conveyance of property the law implies a grant of all the incidents rightfully belonging to it at the time of conveyance and which are essential to the full and perfect enjoyment of the property.'"
See also Harris v. Currie, 1944, 142 Tex. 93, 98, 176 S.W.2d 302(1).
We hold that Wood, Price and his assigns, and R. G. Maben, Jr. took title to their land down to the bed of the Salt Fork adjoining their lands, together with all rights Barron had in the west one-half of *633 the river bed by virtue of his ownership of the land west and south of the river. Texas Bitulithic Co. v. Warwick, Tex.Com. App.1927, 293 S.W. 160; Cox v. Campbell, infra; 65 C.J.S., Navigable Waters, § 120 b (1), p. 251; Id., § 122 a, p. 255.
Next we shall discuss the effects of the Small Bill on the title to the bed of the Salt Fork of the Brazos River as it affects the next above mentioned owners of lands west and south of the Salt Fork in Sections 3 and 5, and west of the River in the south one-half of Section 1, all in the John Rodman. Defendants, Strayhorn et al., claim that by virtue of certain jury findings to the effect that the fences, as actually erected, were recognized or acquiesced in as the correct boundaries, therefore, title could not pass to the river bed or carry any rights therein. By the answers to Issues Nos. 14, 15 and 16, the jury found that at the time the lands were conveyed by Barron to A. Wood, J. A. Price and R. G. Maben, Jr., no doubt or uncertainty existed as to the boundary line between Barron and his grantees. By the answers to Issues Nos. 17, 18 and 19, the jury found that at the time the fences were built Barron and his respective grantees "did not agree by words" that the line, as fenced, would be the boundary line of their respective lands. By answer to Issue Nos. 14a, 15a and 16a the jury found that after the fences were built, such fences had been recognised, or acquiesced in, as the boundary line separating their respective lands. By answers to Issues Nos. 14B, 15B and 16B, the jury found that at the time the fences were built Barron and his grantees had, by their acts and conduct, agreed that the line, as fenced, would be the boundary line between their respective tracts.
The facts regarding the boundaries were undisputed. The jury finding that no doubt or uncertainty existed and that there was no agreement "by words" as to the fences being the boundary shows there was no dispute or uncertainty as to the true boundary. At best, the jury findings show only an acquiescence in the boundary as shown by the fences built. The correct boundary was a question of law. In the case of State v. Atlantic Oil Producing Co., Tex.Civ.App.1937, 110 S.W.2d 953, 958, wr. ref., the rule is stated to be "* * * And when, as here, the purpose of the meander calls is clear, there remains no fact question to be determined by a jury, but the question of whether the river, rather than the course and distance lines, constitute the boundary, is one of law for the court. Schnackenberg v. State, (Tex.Civ.App.) 229 S.W. 934; Bolton v. Lann, 16 Tex. 96; Galveston County v. Tankersley, 39 Tex. 651, 652; 9 C.J. § 348, p. 289; 7 Tex.Jur. p. 134."
The case of Great Plains Oil & Gas Co. v. Foundation Oil Co., 1941, 137 Tex. 324, 153 S.W.2d 452, 458, discusses fixing boundary lines by acquiescence. The rule is stated as follows:
"* * * But acquiescence in a line other than the true line will not support a finding of an agreement establishing the line as the boundary when there is no other evidence of agreement than acquiescence and when it is affirmatively shown that the use of the line resulted not from agreement but from a mistaken belief of the parties that it was the true line. Stier v. Latreyte, Tex.Civ.App., 50 S.W. 589; Hunter v. Malone, 49 Tex. Civ.App. 116, 108 S.W. 709; Gulf Oil Corporation v. Marathon Oil Company, [137] Tex. [59], 152 S.W.2d 711. Similarly, when the true location of the line is conclusively proven, mere acquiescense in another line in the mistaken belief that it is the true line will not support a finding that such other line is the true line. Buie v. Miller, Tex.Civ.App., 216 S.W. 630 (application for writ of error refused); Thompson v. Allen, Tex.Civ.App., 111 S.W.2d 791."
The result of the deeds from Barron and wife to Wood, Price and Maben *634 was that Barron had divested himself of all title to the land included within the boundaries of the patents to the south half of Section 1, and all of Sections 3 and 5 lying west and south of the Salt Fork, including that half of the river bed opposite their respective lands. Wood, Price and Maben and their assignees are assignees of the patent to the west part of the river bed, and therefore, entitled to have their title to that portion of the river bed in proportion that they are assignees of such patents. Moore v. Ashbrook, Tex.Civ.App., 1946, 197 S.W.2d 516, 518 (5, 6), wr. ref.
We hold that when a private person [including corporations, etc.] conveys title to lands owned by him abutting a streamwhether navigable or notsuch conveyance passes to the grantee (unless the conveyance clearly shows a contrary intention) title to the one-half of such stream bed abutting his land, subject, of course, to whatever rights the State of Texas may have in the stream bed. At the time of the passage of the Small Bill, Barron had title only to that part of the uplands east of the Salt Fork in Section 5, John Rodman and Section 12, Block 1, H. & G. N. Ry. Co., plus 12.21 acres east of the river in the corners of Sections 1 and 3, John Rodman. It will be noted that the Small Bill confirms and validates, relinquishes and quit-claims and grants title to the patentees and their assignees of all land included in surveys theretofore made and in patents theretofore issued which lie across, or partly across, navigable streams, and which patents have been in existence for ten years and have not been cancelled or forfeited.
A study of Motl v. Boyd, supra; State v. Grubstake Inv. Ass'n, 1927, 117 Tex. 53, 297 S.W. 202; State v. Black Bros., 1927, 116 Tex. 615, 297 S.W. 213, 53 A.L.R. 1181; Manry v. Robison, 1932, 122 Tex. 213, 56 S.W.2d 438, demonstrates that riparian owners (those holding title to lands abutting a stream) share in all the rights they have in the river bed in proportion that their lands abut the stream. Any other construction of the Small Bill would violate the philosophy of our laws affecting riparian owners. Moore v. Ashbrook, supra. It is said that Article 5302, Vernons Annotated Texas Civil Statutes, originally passed by the Congress of the Republic of Texas, was for the purpose of preventing monopoly control of waters and reserving to the public generally certain rights of the use of waters in navigable streams; subject, however, to the rights of those owning riparian lands abutting the stream. City of Austin v. Hall, supra; Heard v. Town of Refugio, supra; Angell, Law of Watercourses, p. 16, Sec. 3. The Small Bill was to put at rest titles and rights in stream bedsnot to cause additional litigation over them. The Legislature, at the time of the passage of the Small Bill, was aware of the holding of the Supreme Court in the above cited cases (and there are many more that could be cited on the same legal proposition) and must have intended to leave this rule of law in effect rather than overturn it.
The case of Manry v. Robison, supra, and the authorities therein, support the proposition that upon the passage of the Small Bill the title in the bed of the Salt Fork and other navigable streams vested in the owners of abutting (riparian) lands in proportion as their lands lay alongside such stream. This includes all title held by Barron, subject to the rights of the State of Texas. Manry v. Robison was a case which involved the title of a portion of a horseshoe bend in the river bed of the Brazos that was no longer the river bed, due to avulsive change, whereby the Brazos cut across the neck of land at the ends of the corner of the horseshoe bend to form a new straight channel for the river. Manry sought a mandamus against Mr. Robison to require the issuance of a mineral permit to prospect for oil and gas in the abandoned bed of the river. One Cooper came into the lawsuit and sought a mandamus to require the Commissioner of the General Land Office to sell him the abandoned bed of the river. Manry's and also Cooper's theory was that such abandoned bed was still the *635 property of the sovereign of the soilthe State of Texas. In an exhaustive opinion, discussing fully the law applicable, this Court, writing through Chief Justice Cureton, held that the river bed upon its abandonment, became the property of the owners of riparian or adjacent lands. There is a similarity between the State losing its title through the river's abandonment of the bed and the State's relinquishing its title through the Small Bill.
Barron who owned the land abutting on the east side of the river bed became the owner of that one-half of the river bed adjoining his land, he being an assignee of the original patent to this one-half of the stream bed. We hold that upon passage of the Small Bill, Wood became the owner of the title to the south one-half of the river opposite the banks of his abutting lands. Mr. Johnson, (whose title is now held by Stewart), the assignee of Price's interest in Sections 3 and 5, John Rodman, became the owner of the north and west one-half of the river bed opposite the banks of his abutting lands. R. G. Maben, Jr. became the owner of the west one-half of the river bed opposite the banks of his adjoining lands. In his deeds of conveyance Barron had not specifically reserved any part of the bed of the Salt Fork of the Brazos. Barron became the owner of the east one-half of the river bed opposite the banks of his adjoining lands. This result, we feel, is in harmony with the laws of our State. Of course, all titles to the river beds vesting in the individual grantees are subject to "all those rights to which the beds of statutory navigable streams or water courses had been theretofore reserved under the public policy and laws of this state. * * *." State v. Bradford, 1932, 121 Tex. 515, 50 S.W.2d 1065, 1076, (15), 1077 (19).
Defendants Strayhorn et al. contend that the above holding will conflict with the holding in the case of Heard v. Town of Refugio, 1937, 129 Tex. 349, 103 S.W.2d 728; Heard v. State, 1947, 146 Tex. 139, 204 S.W.2d 344, and Mitchell v. Towm of Refugio, Tex.Civ.App.1954, 265 S.W.2d 261, wr. ref. We do not so construe our holding. The Town of Refugio was a municipality and Barron was an individual at the time each made respective deeds. There is a well recognized difference between conveyances made by the sovereign, municipalities, etc. and those made by individuals. Where the sovereign or municipality makes a conveyance of land bordering on a stream without specifically including lands under streams, the settled rule of law is that such grantor intended to convey only to the water line in order to preserve for the public all rights to enjoy the stream bed and the water therein. Heard v. Town of Refugio, 1937, 129 Tex. 349, 103 S.W.2d 728, 732 (4), and the authorities therein cited; Mayor, etc., of City of Galveston v. Menard, 1859, 23 Tex. 349, 390; Landry v. Robison, 1920, 110 Tex. 295, 219 S.W. 819; 8 Am.Jur. 759, Sec. 21; Id., p. 769, Sec. 32; 65 C.J.S., Navigable Waters, § 120, p. 248. When private parties make a conveyance of land bordering on a stream without an express reservation of the stream bed the settled rule of law is that the grantor intended to convey whatever title he has to land under water. Moore v. Ashbrook, supra; 7 Tex.Jur. 132, Sec. 13; 56 Am.Jur. 888, Sec. 474; 65 C.J.S., Navigable Waters, § 120, pp. 251, 253; American Law of Property, Vol. III, p. 244, Sec. 12.27 and 12.113. We will not extend the first Heard case so as to include conveyances by private individuals of land abutting on a stream. Therefore, the Town of Refugio did not convey any title to any rights in the river bed; whereas, Barron did convey all interest he might have in the river bed to his grantees. Further Barron having no title to the river bed adverse to the State, could convey no title adverse to the State, but as between Barron and his grantees, his conveyance would divest him of any claim to the west one-half of the river adjoining the Wood, Price and Maben lands. Barron *636 did not reserve any rights to title in the river bed in his conveyances. Barron was not an owner of any uplands covered by patents to the lands west and north of the river, nor as to Sections 3 and 5 south of the river at the time of the passage of the Small Bill. He had parted with all rights and claims to such uplands some five years prior to the passage of the Small Bill.
In the Heard case found in 204 S.W.2d 344, decided by this Court, the Heards claimed title to the river bed solely by limitations. The Court affirmed the Court of Civil Appeals' judgment denying the Heard claim on the ground that the possession of the Heards was not such adverse possession as required by Article 5515, Vernon's Annotated Texas Civil Statutes.
The case of Mitchell v. Town of Refugio, supra, was a suit by the Town to recover title to a part of the Mission River and Mitchell and others sought to reopen the question as to the ownership by the Town of the river bed. The trial court gave a judgment for the Town. Upon appeal it was held that the holding of this Court in the Heard cases had settled this question and the doctrine of stare decisis applied. We refused writ of error.
In December 1929 after the effective date of the Small Bill, Barron and wife gave a deed of trust to B. B. Stone, Trustee for Chicago Livestock Loan Company, to secure an indebtedness to the Loan Company. As affects the land in controversy here, the description was set out as "all of the land * * * known as Survey No. 5, lying East of the Salt Fork of the Brazos River * * *" and "being that portion of land lying East of the Salt Fork of the Brazos River, known as Section No. 12, Block 1, H. & G. N. Ry. Co. * * *." There was a further description that "the above lands conveyed to W. W. Barron by D. R. Kendall * * *" referring to the deed whereby Barron obtained title to the Boley Brown Ranch. The indebtedness being delinquent, suit was filed in a District Court of Tarrant County, Texas, to collect the indebtedness and foreclose the deed of trust lien. In this suit a receiver was appointed, who, under proper orders of the district court, sold the lands covered by the deed of trust at public auction at a time and place as provided in the deed of trust. At this sale the Loan Company purchased all of the lands included in the description of the deed of trust. This sale is not attacked. It is contended by the defendants that the foreclosure proceedings did not include the 12.21 acres strip of land between Section 5, John Rodman, and Section 12, Block 1, H. & G. N. Ry. Co. and the east bank of the Salt Fork of the Brazos River, nor did it include any part of the river bed. The description of the land conveyed by the deed of trust as that "lying East of the Salt Fork of the Brazos River" means the land lying adjacent to the water, or bed of the river, on the east side thereof. Teal v. Powell Lumber Co., supra; Graham v. Knight, Tex.Civ.App.1922, 240 S.W. 981, 983, no writ history.
At the time the deed of trust was made Barron had the title to the east half of the Salt Fork adjoining his land. The deed of trust conveyed to the Trustee all of the right Barron had in the river. The case of Moore v. Ashbrook, supra, holds that if the bed of a stream, navigable or nonnavigable, is owned by an individual, a deed to abutting lands carries title to the middle of the stream, unless a contrary intent is clearly shown by the language of the instrument. Defendants contend that in the Moore case it was stipulated that the stream was a nonnavigable stream, and that the rule of law above applies only to nonnavigable streams. We do not so read the case. It was stipulated that Moore was the common source of title, and both parties claim under him. The suit was for recovery of the west one-half of the bed of Las Moras Creek. Appellant, Moore, contended the evidence raised an issue as to whether or not the stream was a navigable stream, and that the trial court erred in *637 failing to submit an issue to the jury on this question. The trial court had instructed a verdict for the party who held a deed from Moore conveying land on the west bank of Las Moras Creek. The Court of Civil Appeals based its affirmance of the trial court's judgment upon the proposition that Moore being the owner of the stream bed involved, his conveyance of the land abutting the west bank of the Creek without any mention of the stream bed, conveyed title to the middle of the stream, regardless of whether or not Las Moras Creek was a navigable stream under Article 5302, Vernon's Annotated Texas Civil Statutes. This Court unqualifiedly "refused" the application for writ of error in the case of Moore v. Ashbrook, supra. That "refusal" was at a time when both Judge Sharp, who wrote State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, and the second Heard case, 146 Tex. 139, 204 S.W.2d 344, and Judge Smedley who wrote the first Heard case, 129 Tex. 349, 103 S.W.2d 728, were members of the Court. This Court's action in unqualifiedly refusing the application approved the principle of law as declared by the Court of Civil Appeals. Agnew v. Coleman County Electric Cooperative, Inc., 1954, 153 Tex. 587, 272 S.W.2d 877; Heinatz v. Allen, 1929, 147 Tex. 512, 217 S.W.2d 994. The description of the lands in Section 5, Rodman and Section 12, Block 1, H. & G. N. Ry. Co. contained in the receiver's deed to the Loan Company is in the same language as that in the deed of trust and in the judgment of foreclosure. We hold that by virtue of the description contained in the deed of trust, the foreclosure and sale under proper orders of the court by the receiver and by his deed, and under the provisions of the Small Bill, the Loan Company acquired the title to all land lying east of and adjoining the Salt Fork on the east up to the middle of the bed of the Salt Fork.
In 1935, by appropriate resolutions and warranty deed, the Loan Company conveyed to Percy Jones, Independent Executor of the Morgan Jones Estate and predecessor in title of the plaintiffs herein, a total of 12,884.62 acres of land, described in individual tracts, by reference to a plat and field notes prepared by W. A. Riney, a surveyor who ran the outer boundary lines after the execution of the contract of sale, but prior to the making of the deed. The metes and bounds description of the outer boundary of the lands conveyed, and as they affect this litigation, are a follows:
"Thence in a Westerly direction with the S. B. line of Section No. 5, to the East Bank of the Salt Fork of the Brazos River; Thence in a Northwesternly direction with the East Bank of the River to the W. B. line of Section No. 5, John Rodman Survey; Thence North with the W. B. lines of Section No. 5, John Rodman and Section No. 12, Block No. 1, H. & G. N. RR. Co. to the South or East bank of the Salt Fork of the Brazos River; Thence in a Northeasternly direction with the meandering of the river bank to the N. B. line of Section No. 12, Block 1, H. & G. N. RR. Co.; Thence East with the N. B. line of Section No. 12, to the South bank of the Salt Fork of the Brazos River; Thence in an Easternly direction with the meanderings of the river bank to the E. B. line of Section No. 12, Block No. 1, H. & G. N. RR. Co."
We hold that this deed passed title to the Morgan Jones Estate to the east one-half of the Salt Fork of the Brazos River adjoining and opposite the east river bank in Section 5, Rodman and Section 12, Block 1, H. & G. N. Ry. Co.
Defendants contend that since the field notes of the resolution and warranty deed from the Loan Company to Percy Jones do not include the 12.21 acres strip in the northeast corner of Section 3, and the southeast corner of Section 1, Rodman, but, on the contrary, leave the river at its north intersection of the common boundary *638 lines of Sections 3 and 5, Rodman, and proceed north from this point along the west boundary line of 5 and 12 to the south intersection of the right bank of the river with the west boundary line of 12, (the west boundary line of 12 being also the east boundary line of Section 1, Rodman), this excludes the strip from the conveyance, and title did not pass out of the Loan Company to Jones. There is evidence that it was intended to include the strip in the lands sold to Jones although this 12.21 acres is not included in the total acreage of 12,884.62 acres of land for which Jones paid $6 per acre, or a total consideration of $77,306.16 cash. Also we notice that the contract for the sale of the land to Jones provides for a sale and conveyance of between 13,000 and 14,000 acres of land in Kent County, Texas, being that portion owned by the Loan Company of the ranch formerly known as the Mrs. Boley Brown & Son Ranch, the unsold portion of which has been more recently known as the W. W. Barron Ranch. This 12.21 acres strip was a part of the Mrs. Boley Brown Ranch according to all the testimony concerning same. The contract further provides that the ranch be surveyed prior to the making of the deed and binds Jones to pay $6.00 per acre for the acreage determined by the survey. The evidence shows that the land sold to Jones was known as the "24 Shinnery Pasture", and that the 12.21 acres was a part of such "24 Shinnery Pasture." It further shows that there was no fence separating this strip from the rest of the ranch; that the strip was used as part of the ranch; that by itself in 1935 the strip had very little value, if any; that Barron made no claim of any kind to the river bed or to this strip of land after the deed of trust foreclosure and sale, nor did he pay any taxes thereon up to 1950 when he gave a quit-claim deed to defendants. Considering all the facts and circumstances, we hold that the title to the 12.21 acres strip passed to Jones under the strip and gore doctrine just as it had passed to the Loan Company under the same doctrine in the foreclosure sale. The strip and gore doctrine can have application only when the specific strip is not included in the field notes of the conveyance. If it were so included, it would pass under the conveyance.
This Court, in the case of Cantley v. Gulf Production Co., 1940, 135 Tex. 339, 143 S.W.2d 912, 915, said:
"It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and disputes. To avoid this source of contention, it is presumed that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved. The reason for the rule is obvious. Where it appears that a grantor has conveyed all land owned by him adjoining a narrow strip of land that has ceased to be of any benefit or importance to him, the presumption is that the grantor intended to include such strip in such conveyance; unless it clearly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip. See Cox v. Campbell [135] Tex. [428,] 143 S.W.2d 361; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160. For an annotation of the decisions bearing on this question, see also 123 A.L.R. 543, 47 A.L.R. 1277, and 2 A.L.R. 7."
Our latest expression that it is against public policy to leave title of a long narrow strip or gore of land in a grantor conveying a larger tract adjoining or surrounding this strip is found in the case of Haines v. McLean, 1955, 154 Tex. 272, 276 S.W.2d 777, 782(4). In that case it *639 was held that certain deeds describing an entire tract of land, which was intersected by a series of different but adjoining narrow easements of way, conveyed the fee title of the entire tract (subject to the easements) notwithstanding language referring to the easement area as if excepted and notwithstanding that the acreage conveyed was stated to be the total acreage of the tract less that corresponding to the easements. It was also held that a deed to the easterly portion of the same tract, describing the westwardly boundary of said portion as being the easterly line of the nearest of the several easements, carried the fee title to the center line of the combined easement (subject, of course, to the rights of the easement owners). These holdings were partly based upon the rule of law concerning strips and gores. See also Cox v. Campbell, 1940, 135 Tex. 428, 143 S.W.2d 361; Earhart v. Rosewinkle, 1940, 108 Ind.App. 281, 25 N.E.2d 269, 272.
We next dispose of the title to the accreted land along the south, or right bank, of the Salt Fork which constitutes the north boundary of the Wood land. Having held that under the Barron deed Wood took all of Barron's title to the center of the stream, and that under the Small Bill his title was ratified and confirmed to the south one-half of the river opposite the bank of the river which he owned, it follows that the title to all accreted land on this south bank vested in Wood and his assignees, as their interests may appear. Sharp v. Womack, 1936, 127 Tex. 357, 93 S.W.2d 712; Hancock v. Moore, Tex.Civ.App.1939, 137 S.W.2d 45, affirmed 135 Tex. 619, 146 S.W.2d 369; Rosetti v. Camille, Tex.Civ.App.1917, 199 S.W. 526, wr. ref.; Denny v. Cotton, 1893, 3 Tex. Civ. App. 634, 22 S.W. 122, wr.ref.; 11 C.J.S., Boundaries, § 34, p. 579; 65 C.J.S., Navigable Waters, § 122 b, p. 255.
The judgment of the trial court and the Court of Civil Appeals is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2439883/ | 966 N.E.2d 608 (2008)
381 Ill. App. 3d 1146
359 Ill. Dec. 287
IN RE MARRIAGE OF BANNA.
No. 2-07-0578.
Appellate Court of Illinois, Second District.
May 14, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568226/ | 139 F.2d 393 (1943)
PHELPS DODGE REFINING CORPORATION
v.
FEDERAL TRADE COMMISSION.
TENNESSEE CORPORATION
v.
SAME.
JOHN POWELL & CO., Inc., et al.
v.
SAME.
AMERICAN CYANAMID & CHEMICAL CORPORATION
v.
SAME.
Nos. 9-12.
Circuit Court of Appeals, Second Circuit.
December 23, 1943.
*394 *395 William H. Wurts, of New York City (Arthur W. Rinke, of New York City, of counsel), for petitioners in the first mentioned petition.
Henry C. Little, of New York City (Arthur W. Rinke, of New York City, of counsel), for petitioner in second petition.
Reeves, Todd, Ely & Beaty, of New York City (David Cohen, of New York City, of counsel), for petitioner in third petition.
Guggenheimer & Untermyer, of New York City (Jules C. Randal, of Buffalo, N. Y., and Harry Hoffman, of New York City, of counsel), for petitioner in fourth petition.
W. T. Kelley, Chief Counsel for Federal Trade Commission, by Eugene W. Burr, and Reuben J. Martin, Sp. Attys. for Commission, all of Washington D. C., for respondent.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
SWAN, Circuit Judge.
In May 1940 the Federal Trade Commission issued a complaint against the Agricultural Insecticide & Fungicide Association, its officers and directors, a number of its members and certain non-members, charging them with using unfair methods of competition in commerce, as defined in the Federal Trade Commission Act, 15 U.S. C.A. § 41 et seq. After the filing of answers and a stipulation of facts the Commission made findings of fact and issued a cease and desist order against 38 named respondents, including all of the present petitioners, who were found to have combined to restrain and suppress competition in agricultural insecticides and fungicides. In the Matter of Agricultural Insecticide & Fungicide Assn. et al., 35 F.T.C. 201.
Four of the corporate petitioners, whom for brevity we shall refer to as Powel, Southern, Stauffer and Cyanamid, were members of Agricultural Insecticide & Fungicide Association. Petitioner Demmon was a director of the Association and an officer of Stauffer. The other two petitioners, who will be referred to as Phelps Dodge and Tennessee, were not members of the Association; they were found to have cooperated with the Association and its members. All of the petitioners challenge the order of the Commission on the ground that the findings of fact upon which it is based are not supportable as against them. Hence the only question before us is as to the sufficiency of the proof to connect the several petitioners with the illegal conspiracy in which all the respondents were found to be engaged.
In approaching this question the court must bear in mind that findings of the Commission as to the facts, if supported by evidence, are made conclusive by the terms of the Act, 15 U.S.C.A. § 45(c). This means that the weight to be given to admitted facts and circumstances, as well as the inferences reasonably to be drawn from them, is for the Commission. Fed. Trade Comm. v. Pac. Paper Assn., 273 U.S. 52, 63, 47 S. Ct. 255, 71 L. Ed. 534. The court is not to try the case anew, and may not pick and choose between conflicting inferences, if the one drawn by the Commission is permissble. Fed. Trade Comm. v. Algoma Co., 291 U.S. 67, 73, 54 S. Ct. 315, 78 L. Ed. 655; National Labor Relations Board v. Nevada Copper Co., 316 U.S. 105, 106, 62 S. Ct. 960, 86 L. Ed. 1305.
*396 The stipulation of facts states that the Association, organized in 1934, has acted as a clearing house for the exchange of information submitted by its members, including reports as to the sales of various types of insecticides, fungicides and related items, together with the prices, terms and discounts at which said items are sold, or offered to be sold, and in some instances including advance notice of future prices. Thus it admits of no doubt that the association and some of its members were engaged in price fixing, which violated the Act. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1229. The stipulation likewise reveals that the association prepared and distributed so-called "distributor guides", lists of wholesale buyers entitled to favorable concessions not given the trade in general. This too bears the taint of illegality. Eastern States Lumber Co. v. United States, 234 U.S. 600, 34 S. Ct. 951, 58 L. Ed. 1490, L.R.A.1915A, 788; Fashion Originators' Guild v. Fed. Trade Comm., 2 Cir., 114 F.2d 80, affirmed 312 U.S. 457, 61 S. Ct. 703, 85 L. Ed. 949. The agreement need not be proven by direct evidence; conduct pointing to concerted action is sufficient. Eastern States Lumber Co. v. United States, supra; Southern Hardware Jobbers' Ass'n v. Fed. Trade Comm., 5 Cir., 290 F. 773. The Commission argues that this being established, the complicity of Powell, Southern, Stauffer and Cyanamid is proved by the fact of their membership in the association. We are not prepared to hold that mere membership is enough. If the purposes of an association are lawful on their face, we doubt that its members should be held for acts of the association outside its purposes, unless knowledge of the illegal acts is brought home to the members. But the present record does not squarely present this question. Nor did Standard Container v. Fed. Trade Comm., 5 Cir., 119 F.2d 262, upon which counsel for the respondent strongly relies. There the evidence was that members adhered or were disqualified for not adhering to the price lists. See 119 F.2d at page 266. Other cases relied upon, where broad orders of the Commission have bound parties who did not contest their application, have no persuasive weight, as for example, In the Matter of American Photo-Engravers Ass'n, 12 F.T.C. 29; Chamber of Commerce of Minneapolis v. Fed. Trade Com., 7 F.T.C. 115, affirmed 8 Cir., 13 F.2d 673.
By their answers Powell, Southern and Stauffer admitted that after announcement to the trade they filed their prices with the association and received through it announcements of previous price changes by other manufacturers. Southern and Stauffer further admitted that they submitted lists of wholesale customers and received "distributor guides" prepared by the association. None admits that it agreed to adhere to the price lists or become a party to the price-fixing combination, nor do the latter two concede the illegality of the dealer lists. But we think it was permissible for the Commission to infer that when these companies sent in their data they knew what use was to be made of them. They did affirmative acts, and if they had not acquainted themselves fully with the association's purposes with respect to the data, at least it was for them to prove that fact. Otherwise the inference of their complicity could reasonably be drawn.
The answer of Cyanamid admitted that from time to time it received through the association announcements of previous price changes by other manufacturers; but there is no admission or proof that it ever furnished its own price lists to the association. It also received dealer lists from the association, and these contained the names of some of its customers. In the absence of proof to the contrary we think the receipt of these price lists and dealer lists was enough from which to infer that the company learned of the association's illegal activities. Both price lists and dealer lists have been the source of much litigation and their circulation is commonly recognized as a potential means of restraining competition. We think that at least it should put a member of a trade association upon inquiry and charge him with knowledge of what an inquiry would have disclosed as to his association's activities. Thus the issue is reduced to whether a member who knows or should know that his association is engaged in an unlawful enterprise and continues his membership without protest may be charged with complicity as a confederate. We believe he may. Granted that his mere membership does not authorize unlawful conduct by the association, once he is chargeable with knowledge that his fellows are acting unlawfully his failure to dissociate himself from them is a ratification of what they are doing. He becomes *397 one of the principals in the enterprise and cannot disclaim joint responsibility for the illegal uses to which the association is put. While the culpable role of petitioner Cyanamid is less clearly established than that of the three petitioners already considered, it nevertheless sustains the Commission's findings.
There is only one item of proof as to Phelps Dodge and Tennessee but it is ample to establish their complicity. It is the so-called "Gunther memorandum" of the meeting of November 15, 1937 at which price-fixing was clearly agreed upon. Phelps Dodge, whose corporate name was then Nichols Copper Co., was represented by Mr. Rice and Tennessee by Mr Porter. The memorandum relates that both these representatives were appointed by the president of the association to serve on a committee "to prepare a list of agents, propose price schedules, etc." It is true that Gunther's memorandum is hearsay; but it is persuasive hearsay, and the Commission is not bound to follow the strict rules of evidence which prevail in courts of law. John Bene & Sons v. Fed. Trade Comm., 2 Cir., 299 F. 468. Moreover, it was included in the stipulation to which these petitioners agreed. Having staked the outcome of the proceedings upon this presentation of evidence they may not now repudiate their agreement. Forbes v. Comm'r of Int. Rev., 1 Cir., 82 F.2d 204, 207, 208; Andrews v. St. Louis Joint Stock Land Bank, 8 Cir., 127 F.2d 799, 804; cf. Oscanyan v. Arms Co., 103 U.S. 261, 263, 26 L. Ed. 539. The memorandum was set forth for the obvious purpose of being considered by the Commission as evidence of the facts stated. That being true the inference that Rice and Porter had authority to act for the corporations which Gunther stated they represented was plainly permissible. And the illegality of their participation was incontestibly established by express description.
All that the record discloses about petitioner Demmon is that he was a director of the association and held some unnamed office in Stauffer. It does not appear that he ever attended a directors' meeting or knew anything about the illegal activities of the association or the supplying and receipt of price lists and dealer lists by Stauffer. The ordinary doctrine is that a director, merely by reason of his office, is not personally liable for the torts of his corporation; he must be shown to have personally voted for or otherwise participated in them. Leonard v. St. Joseph Lead Co., 8 Cir., 75 F.2d 390, 395; Metropolitan El. R. Co. v. Kneeland, 120 N.Y. 134, 144, 24 N.E. 381, 8 L.R.A. 253, 17 Am. St. Rep. 619; 19 C.J.S., Corporations, p. 271, § 845. The doctrine seems applicable here. The finding against petitioner Demmon is therefore unsupported, and his inclusion by name in the order is not sustained.
Accordingly the order is affirmed as to the corporate petitioners and reversed as to Demmon. An order of enforcement, excluding his name, may be entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541609/ | 75 B.R. 630 (1987)
In re Imelda MORGAN, Debtor.
Imelda MORGAN, Plaintiff,
v.
SOUTH TEXAS HOME SERVICES, INC. and First Texas Savings Assoc., Defendants.
Bankruptcy No. 83-02155-C2-3, Adv. No. 85-0007-C2.
United States Bankruptcy Court, S.D. Texas, Corpus Christi Division.
July 8, 1987.
*631 Jack O'Boyle, Jordan, Dunlap & Prather, Dallas, Tex., for First Texas Sav. Assoc.
Thomas M. Schumacher, Corpus Christi, Tex., for Imelda Morgan.
Sam H. Burris, Alice, Tex., for South Texas Home Services, Inc.
MEMORANDUM OPINION
R.F. WHELESS, Jr., Chief Judge.
FACTS
Imelda Morgan ("Morgan"), Plaintiff and Debtor herein, executed a contract with South Texas Home Services, Inc. ("South Texas"), on June 18, 1982. The contract, designated "Retail Installment Contract" was for the purchase and installation of aluminum insulation, screening, siding, and shingles on her already-constructed home. South Texas, in order to secure its claim, placed a first lien on Morgan's home and lot, located in Alice, Jim Wells County, Texas. The lien was in the form of a "Mechanic's and Materialmen's Lien Contract with Power of Sale", executed on June 18, 1982, and recorded in Jim Wells County, Texas. Almost immediately, South Texas assigned both the Retail Installment Contract and the Mechanic's and Materialmen's Lien Contract with Power of Sale to First Texas ("First Texas"). This assignment resulted in First Texas holding a perfected first lien on Morgan's principal residence.
Plaintiff, in Chapter 13, filed an adversary proceeding against South Texas, and First Texas on January 9, 1985 in the 79th District Court of Jim Wells County, Texas. Morgan's allegations were as follows: (1) both Defendants violated Chapter Six of the Texas Consumer Credit Code, Tex.Rev. Civ.Stat.Ann. art. 5069-6.01, et seq. (hereinafter the Texas Consumer Credit Code) by charging in excess of the amount allowed *632 in art. 5069-6.02(9) for the time-price differential; (2) both Defendants violated the Texas Consumer Credit Code, art. 5069-6.05(7)(b), because a first lien was taken on her homestead; and (3) the Depository, Institutions, Deregulations and Monetary Control Act of 1980, 12 U.S.C. § 1735f-7 and the regulations promulgated thereunder, 12 C.F.R. § 590.1 do not preempt the Texas Consumer Credit Code.
First Texas, in defense, denied each of these itemized allegations.
Plaintiff's first complaint as to an excessive interest rate charge in the Retail Installment Contract is no longer in dispute as the parties have stipulated that the interest rate was "at or below the annual percentage rate permitted under the National Housing Act and at or below the annual percentage rate in Art. 1.04 of the Texas Consumer Credit Code." (Joint Stipulations in the Adversary Proceeding, p. 2). The remaining issues are: (1) whether South Texas has an obligation to repurchase the Retail Installment Contract from First Texas; (2) whether the Texas Consumer Credit Code, art. 5069-6.05(7)(b), was violated by the taking of a first lien on Morgan's homestead; and (3) whether the Texas Consumer Credit Code is preempted by the Depository, Institutions, Deregulation and Monetary Control Act of 1980, 12 U.S.C. Section 1735f-7 with the regulations promulgated under it, 12 C.F.R. Section 590.1.
I. THE REPURCHASE AGREEMENT
South Texas alleges that it has no duty to repurchase the Retail Installment Contract from First Texas. The specific terms of the contract, however, require South Texas to repurchase the contract if an "objection or claim" is made on the contract. The language of the "Assignment" portion of the contract reads as follows: "Creditor agrees to repurchase the contract from First Texas, on demand, by paying to First Texas the unpaid balance due on the contract to First Texas, plus any and all costs and expenses incurred by First Texas with respect thereto, including attorney's fees and other expenses of litigation, if (i) any representation and warranty made above shall be false, or (ii) customer raises any complaint or objection regarding the collateral or the contract, or any claim or defense relating to the contract after notice of the assignment of the contract is mailed to customer." (Retail Installment Contract p. 4)
The contract is very clear about the duties of South Texas. Morgan was duly notified of the assignment of the contract to First Texas, therefore, because of the "objection or claim" on the contract South Texas is obligated to repurchase the contract.
II. THE FIRST LIEN
The first question which must be addressed on the lien issue is whether the Texas Consumer Credit Code, art. 5069-6.05(7)(b) applies to home improvements, as well as to the sale and construction or the sale of new homes. The portion of the statute in question reads as follows:
"No retail installment contract or retail charge agreement shall:
(7) Provide for or grant a first lien upon real estate to secure such obligation, except, (a) such lien as is created by law upon the recording of an abstract of judgment or (b) such lien as is provided for or granted by a contract or series of contracts for the sale or construction and sale of a structure to be used as a residence so long as the time price differential does not exceed an annual percentage rate permitted under either this Chapter or Article 1.04 of this Title.
In oral argument, Morgan contended that the exception to the prohibition of a first lien does not apply here as there was no sale and construction or sale of her home. First Texas argued in response that a careful reading of arts. 5069-6.01 and 5069-6.05(7)(b) of the Credit Code together, points to the word "structure" as the critical connection between the two sections. The applicable portion of the Texas Consumer Credit Code, art. 5069-6.01 reads as follows:
(a) "Goods" means all tangible personal property when purchased primarily for *633 personal, family or household use and not for commercial or business use, including such property which is furnished or used at the time of sale or subsequently, in the modernization, rehabilitation, repair, alteration, improvement or construction of real property so as to become a part thereof whether or not severable therefrom. The term also includes, but is not limited to a structure,. . . . "
Article 5069-6.05(7)(b) of the Texas Consumer Credit Code speaks of the ". . . sale or construction and sale of a structure . . ." as the qualifying terms which allow the taking of a first lien on residential property based on a retail installment contract. First Texas contended that the Legislature's drafting of art. 5069-6.01 deliberately provided for the inclusion of "structure" in the definition of "goods". "Goods" also includes ". . . property which is used in the modernization, rehabilitation, repair, alteration, improvement or construction of real property." The defendant concluded that this evidenced the intent of the Legislature to include home improvements to existing residences as an exception to the prohibition against the taking of a first lien on a homestead by a retail installment contract.
Texas case law has interpreted art. 5069-6.05(7)(b) of the Texas Consumer Credit Code on several occasions. The earliest case on point is Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249, 253 (Tex.Civ. App. San Antonio 1978, writ ref'd n.r.e.). In Anguiano, a landowner entered into a contract with a contractor to have a new home built on his unencumbered property. The landowner later sued the contractor for statutory penalties under the Texas Consumer Credit Code. The Court, in interpreting the Texas Consumer Credit Code, stated that the Code ". . . is plain, clear, and unambiguous, and hence, the aid of rules of construction is not helpful or required, and in fact, their use under such circumstances would be improper."
This holding coupled with a recent case from the Texas Supreme Court, Garcia v. Gainan's Chevrolet City, Inc. and General Motors Acceptance Corporation, 690 S.W.2d 892 (Tex.1985) make it evident that the Texas Consumer Credit Code is to be interpreted literally, and/or in favor of the consumer. Garcia involved the purchase of a car through a retail installment contract. The Texas Supreme Court, in interpreting the Texas Consumer Credit Code, reaffirmed their holding in Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 332 (Tex.1984) wherein it was stated that: ". . . we are obligated to construe the Credit Code in a manner that comports with Legislative intent and further the purposes of the statute."
The Legislative intent behind the Texas Consumer Credit Code was recognized by the Texas Supreme Court in Southwestern Inv. Co. v. Mannix, 557 S.W.2d 755, 764 (Tex.1977) where the Court said that ". . . [t]he Legislative pronouncements concerning the form and contents of the retail installment contract must be construed as imposing duties on the seller, since it is the conduct of the seller which the Legislature sought to regulate." Therefore, because the duties are placed on the seller, the Texas Consumer Credit Code is to be read in favor of the debtor.
De la Fuente v. Home Savings Association, 669 S.W.2d 137, 141 (Tex.App. Corpus Christi 1984, no writ) held that the taking of a first lien on a homestead violated the Texas Consumer Credit Code, art. 5069-6.05(7)(b). In De la Fuente, the homeowners claimed interest rate violations in a home improvement loan. The consumers executed a contract and promissory note to secure the purchase of materials and installation of aluminum siding on their home. The contract gave Home Savings a first lien on the homestead. In its decision, the Appellate Court stated: "[T]he Retail Installment Contract signed by the De la Fuentes is in violation of the Texas Consumer Credit Code, Art. 5069-6.05 in that the contract provided for a first lien on the De la Fuente's home."
In De la Fuente the interest rate was excessive under the law. Here, it was not.
However, in light of the previously discussed cases, it is clear that art. 5069-6.05(7)(b) was violated by the taking of a *634 first lien on Morgan's home. There appears to be no alternative but for this Court to rule for Morgan. If the Legislature's intent was to allow the taking of a first lien on residential homesteads as long as the interest rate was within certain boundaries, the statute could have been worded differently. In addition, as an alternative the Legislature could have used the word "goods" in place of the word "structure" in art. 5069-6.05(7)(b). Had they done so, a first lien on a residence for improvements to the residence would have been valid under the statute if the interest rate were proper (it was). The reason is that the term "goods" is defined to include "rehabilitation, repair, alteration and improvement". It also expressly includes the word "structure" but it nevertheless cannot be said that every structure is synonymous with goods so that each includes the other. If this were true, South Texas and First Texas would prevail. This Court reluctantly concludes that the term "structure" in art. 5069-6.05(7)(b) of the Texas Consumer Code does not include the defined term "goods" within its meaning so that a retail installment contract or retail charge agreement for home improvements would support a first lien on the structure (home).
It seems to this Court that the terms of art. 5069-6.05(7)(b) are unfortunately worded but the statute seems clear and unambiguous and leaves no room for construction and must be applied literally.
III. TEXAS LAW VERSUS FEDERAL PREEMPTION
The Court does not reach this issue, as the parties stipulated that there was no interest rate problem.
IV. CONCLUSION
In accordance with the foregoing, the Court finds that South Texas is required to repurchase the contract from First Texas. The Court also finds that the Texas Consumer Credit Code, art. 5069-6.05(7)(b) does not allow the taking of a first lien on a homestead for home improvements. Therefore, the Court finds for the Plaintiff, Imelda Morgan.
The attorney for Morgan is to submit an order consistent with this opinion within 10 days. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567868/ | 10 So.3d 264 (2009)
INSURANCE COMPANY OF NORTH AMERICA, Reliance National Insurance Company, Zurich Insurance Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania
v.
LOUISIANA POWER & LIGHT COMPANY and Walworth Company.
No. 2008-CA-1315.
Court of Appeal of Louisiana, Fourth Circuit.
March 4, 2009.
*265 Michael M. Noonan, McGlinchey Stafford, PLLC, New Orleans, LA, for Plaintiffs/Appellants.
Eugene G. Taggart, Terrence G. O'Brien, Taggart Morton Odgen Staub & O'Brien, LLC, New Orleans, LA, for Entergy Louisiana, Inc.
(Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
EDWIN A. LOMBARD, Judge.
Plaintiffs/Appellants, Insurance Company of North America, Reliance National Insurance Company, Zurich Insurance Company, National Union Fire Insurance of Pittsburgh, Pennsylvania (hereinafter collectively referred to as ("Property Insurers") and McGlinchey Stafford, PLLC ("McGlinchey"), appeal the trial court's judgment sustaining the Exception of Res Judicata filed by Defendant/Appellee, Entergy Louisiana, Inc. ("Entergy") and denying Property Insurers' Motion for Summary Judgment. For the reasons set forth more fully below, we find that the claim filed by Property Insurers is barred by res judicata, and affirm the trial court's judgment.
Relevant Facts
This matter arises out of an explosion that occurred on July 27, 1995, in the ROSE Unit of the Murphy Oil U.S.A., Inc. ("Murphy") refinery in Meraux, Louisiana, which resulted in property damage and business interruption losses to Murphy, and injuries to nearby residents. Numerous lawsuits resulted from the incident. On September 25, 1996, the trial court certified a class of persons who claimed to have sustained damages as result of the explosion and fire captioned Andry v. Murphy Oil U.S.A., Inc., et al., under docket number 77-132 in the 34th Judicial *266 District Court in St. Bernard Parish, Louisiana. Murphy intervened in this lawsuit to recover damages from Energy and other defendants whom it alleged were responsible for its injuries. Property Insurers subsequently instituted the instant numbered action, number 79-581, on July 11, 1996, seeking recovery of insurance proceeds paid or to be paid on behalf of Murphy for property damage and business losses resulting from the explosion. In their Petition, Property Insurers alleged that they were subrogated to the rights of their insured, Murphy, to the extent of the amount they paid to Murphy for its property damage and business interruption losses.
Later, the trial court ordered that all cases filed in the 34th JDC in connection with the Murphy Oil Refinery explosion, including the instant suit, number 79-581, were to be consolidated with the Andry suit, and that the consolidated action would bear master docket number 77-132. Shortly before trial was to take place, Murphy settled the class claims for $8.8 million dollars and funded $7.3 million of the settlement amount. As part of the settlement, Murphy received an assignment of the class plaintiffs' claims.
The remaining consolidated cases were tried at an almost two-month-long bench trial in the Fall of 2003. Prior to the trial, all parties, including Murphy, Property Insurers, and Entergy, stipulated that the amount of Murphy's damages was $8,549,149 (which included $3,045,991 in uninsured losses and $5,503,158 for the amount Property Insurers paid to Murphy). After the trial, the court found in favor of Murphy and against Entergy and another defendant, finding Entergy 40% at fault. A judgment was signed on July 21, 2004. This judgment, which had originally been drafted and submitted by counsel for Murphy, awarded the entirety of the damages to Murphy and none to Property Insurers. Additionally, the judgment erroneously awarded Murphy the millions of dollars in damages sustained by nearby residents for which Murphy claimed subrogation, for a total award of $16,110,598. The judgment bore the master docket and case file number 77-132, and listed several of the individual docket numbers, but not case no 79-581. Nonetheless, after the judgment was issued, Property Insurers did not ask the district court to amend the judgment to directly award them the portion of the stipulated damages for insured losses, nor did they request that the court include a statement in the judgment clarifying that the consolidated judgment did not include their case for damages against Entergy. Moreover, while at least one other party requested a separate judgment, Property Insurers did not request a separate judgment reflecting docket number 79-581.
Entergy appealed the trial court's judgment on the basis that, contrary to the pre-trial stipulation, it erroneously awarded damages to Murphy that included the 7.3 million dollars in damages Murphy paid to settle the class-action suit filed by the nearby residents. Murphy also appealed the judgment, but only the portion finding that Murphy did not meet its burden of proof to prevail against ARCO, one of the other defendants. Although they did not directly appeal the trial court's judgment, Property Insurers did join in and sign the appellate brief to this Court filed by Murphy that sought the affirmation of the district court's award of damages to Murphy.
On appeal, this Court affirmed the judgment of the trial court, but amended the amount of damages awarded to reflect the figures previously stipulated by the parties, finding that Energy's 40% share of the amount owed in damages was *267 $1,218,396.40. Andry v. Murphy Oil U.S.A., Inc., 05-126 to 05-133, pp. 33-34 (La.App.4 4 Cir. 6/14/06), 935 So.2d 239, 260-61. Murphy filed an Application for Rehearing in this Court. In the Application, which was signed by both counsel for Murphy and Property Insurers, Murphy and its insurers again sought the affirmation of the district court's award of damages to Murphy, advising the court that due to a side agreement between Murphy and its insurers, Murphy was entitled to seek recovery of the subrogated damage claim in this action and Murphy and Property Insurers would share the awarded damages on a pro-rata basis. This Court denied the Application for Rehearing.
After the denial of the Application for Rehearing, Property Insurers filed a Motion for Summary Judgment in district court under docket number "79-581 c/w all remaining cases," arguing that their case had not been part of the consolidated judgment, and seeking the identical property damage and business interruption losses that had already been awarded to Murphy by the district court. Murphy intervened in the suit seeking their agreed-to pro-rata share of any recovery to Property Insurers. McGlinchy also intervened in this suit, seeking recovery of attorney's fees. In the meantime, Murphy also filed an Application for Writ of Certiorari in the Louisiana Supreme Court in case number 77-132, seeking to restore the district court's award of damages to it. The Supreme Court denied writs. Andry v. Murphy Oil U.S.A., Inc., 06-2256 (La.12/08/06), 943 So.2d 1093.
Entergy then filed an opposition to the Motion for Summary Judgment filed by Property Insurers in the district court, as well as Exceptions of Res Judicata and No Cause of Action to Murphy's Insurer's claim for damages. At the hearing on the motion and exceptions on March 7, 2007, Entergy argued that Property Insurers' claims against Entergy for property damage and business interruption losses resulting from the explosion at the refinery were extinguished by the district court's July 21, 2004 judgment in Andry, which had awarded the same damages to their insured, Murphy, with Property Insurers' full knowledge and support. In response, Property Insurers argued that its free-standing claim seeking the money it paid in insurance proceeds to Murphy, in case number 79-581, was not included in the Andry judgment, and had never been adjudicated. On March 9, 2007, the district court rendered a judgment in docket number 79-581, denying Property Insurers' Motion for Summary Judgment and sustaining Entergy's Exception of Res Judicata. It is from this judgment that Property Insurers now appeal.
Law & Discussion
On appeal, Property Insurers argue that the trial court erred in sustaining Entergy's Exception of Res Judicata and dismissing their claim against Entergy. Property Insurers also argue that the trial court erred in denying their Motion for Summary Judgment.
Res Judicata
The doctrine of res judicata precludes re-litigation of claims and issues arising out of the same factual circumstances when there is a valid final judgment. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, pp. 4-5 (La.7/2/96), 676 So.2d 1077, 1079. It is designed to promote judicial efficiency and final resolution of disputes. Id. The standard of review of a peremptory exception of res judicata requires the appellate court to determine if the trial court's decision is legally correct or incorrect. Sutter v. Dane Investments, Inc., 07-1268, p. 3 (La.App. 4 Cir. 6/04/08), 985 So.2d 1263, 1265.
*268 The doctrine of res judicata in Louisiana is set forth in La.Rev.Stat. 13:4231, which was amended in 1990 to provide as follows:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
In Chevron USA, Inc. v. State, 07-2469 (La.9/08/08), 993 So.2d 187, the Louisiana Supreme Court examined the doctrine of res judicata and stated:
Based on the language of the above statute, this court has established the following five elements that must be satisfied for a finding that a second action is precluded by res judicata: "(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation." Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d 1049, 1053. Since the 1990 amendment to the res judicata statute, this court considers the "chief inquiry" to be "whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action." Id.
Id., p. 10, 993 So.2d at 194.
Louisiana courts recognize that "a final judgment has the authority of res judicata only as to those issues presented in the pleadings and conclusively adjudicated by the court." Deckmann Assoc. v. IP Timberlands Operating Co., Ltd., 96-2209, p. 9 (La.App. 1 Cir. 2/20/98), 710 So.2d 1091, 1096, writ denied, 98-1398 (La.7/2/98), 724 So.2d 738. Moreover, the doctrine of res judicata is stricti juris, thus, any doubt concerning the application of the principle must be resolved against its application. Kelty v. Brumfield, 93-1142, p. 7 (La.2/25/94), 633 So.2d 1210, 1215.
In this case, Property Insurers do not dispute that four of the elements for application of res judicata are satisfied. They do not dispute that the Andry judgment is valid, it is final, that their claim for damages asserted in the instant suit existed when Andry was decided, or that their claim for damages asserted in the instant suit arose out of the transaction or occurrence that was the subject matter of the consolidated suit. However, Property Insurers do make several arguments regarding why their instant claim is not barred by res judicata. First, they argue that res judicata does not apply here since the original judgment for damages was in favor of Murphy and not Property Insurers, and thus, the requirement that the parties in both suits must be the same is not met in this case. Second, they argue that because *269 the consolidated judgment did not specifically bear their case number, their claim was not adjudicated. Finally, they argue that had their case been adjudicated as part of the consolidated proceeding, a separate judgment should and would have been issued under their specific case number. We find fault with all three arguments.
First, we find that there is an identity of the parties in this case. Louisiana law is clear that "[t]here exists an identity of the parties whenever the same parties, their successors, or others appear so long as they share the same `quality' as parties." Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978). Here, even though the Andry judgment was in favor of Murphy only and not Murphy and Property Insurers, as the insurer and the insured, Murphy and Property Insurers share the same quality as parties. Thus, Property Insurers' argument that res judicata does not apply, since the claims were brought by different parties, has no merit.
Further, we find that Property Insurers' claim was part of the consolidated action and was adjudicated by the trial court. Pursuant to Case Management Order Number 1 of the trial court, Property Insurers' claim to recover the amount it paid to Murphy was consolidated with all of the cases pending in the 34th JDC and under the master file and docket number 77-132, under the Andry v. Murphy caption. On August 22, 1996, the district court specifically ordered that the suit of Property Insurers against Entergy, Docket Number 79-581, "be consolidated and tried with [Andry, docket number 77-132]." The consolidated cases were heard together, decided as one case, and contained in one transcript. Therefore, there was no error in the trial court's issuance of a single consolidated judgment. Contrary to Property Insurers' claim, there is simply no hard-set rule that there be separate written judgments in consolidated cases. If the trial court erred in failing to specifically list case number 79-581 in the judgment, Property Insurers should have brought this oversight to the court's attention so that it could have been remedied.
Although the trial court's judgment was solely in favor of Murphy, for the full amount of damages it sustained, including those paid by its insurers, Property Insurers did not ask for a new trial, did not request that the trial court amend the judgment to award the amount that it paid to Murphy for insured damages, and did not appeal the judgment. Property Insurers have admitted that they were pleased with the judgment as they joined with Murphy in asking the trial court, this Court, and the Louisiana Supreme Court, to affirm the trial court's damage award to Murphy. Clearly, the totality of the trial court's award to Murphy, which included the millions of dollars in class-action damages, would have benefited Property Insurers, who were to collect a pro-rata share of Murphy's recovery.[1]
Rather than seeking to have the trial court amend the judgment in conformity with the stipulation, Property Insurers chose to keep the higher amount and joined in pleadings to defend the award. *270 It was only after this Court reduced the award to Murphy on appeal that Property Insurers argued that their case was not part of the consolidated judgment. However, Property Insurers ignore the fact that the entire consolidated record, including case number 79-581, was before this Court in the Andry appeal. And, both this Court and the Louisiana Supreme Court included docket number 79-581 in the list of dockets being reviewed.
The claim brought by Property Insurers against Entergy for damages, which represents the amounts it paid to Murphy for its business interruption losses and property damage, is between the same parties, arose out of the same occurrence, and demands the same damages as those raised in the consolidated proceeding. The Andry judgment was a valid and final judgment of the consolidated claims. Therefore, the instant claim is barred by res judicata, since it was presented in the pleadings, was adjudicated by the court and was part of the consolidated judgment.
Additionally, although we recognize that there are circumstances in which the application of res judicata would be unfair, we do not find that any of the exceptions to the general rule of res judicata, which are set out in La. R.S. 13:4232, apply in this case. La. R.S. 13:4232 provides in pertinent part:
A. A judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or,
(3) When the judgment reserved the right of the plaintiff to bring another action. [Emphasis supplied.]
The comments to La. R.S. 13:4232 state that this statute gives a court the authority to exercise its equitable discretion to balance the principle of res judicata with the interests of justice under exceptional circumstances. However, the comments also provide, "[t]his discretion must be exercised on a case by case basis and such relief should be granted only in truly exceptional cases, otherwise the purpose of res judicata would be defeated...." Thus, pursuant to La. R.S. 13:4232(1), we do have the discretion to decline to apply the doctrine in this case if we find that exceptional circumstances exist that would justify our doing so. Here, we do not find that any truly "exceptional circumstances" exist such that res judicata should not apply.
Further, La. R.S. 13:4232(3) does not offer Property Insurers any relief from the bar of res judicata, since the consolidated judgment did not reserve the right of Property Insurers to bring another action against Entergy to recover, in their own names, the money that they paid to Murphy. Had Property Insurers felt that their claim was not addressed and adjudicated in the consolidated proceeding, they could and should have requested such a reservation of rights from the trial court. And although they now argue that this Court's opinion in Andry, which reduced the amount of the award to Murphy to 40% of the uninsured damages, implies that the trial court's judgment did not include the claim brought by Murphy's Insurer against Entergy, we did not intend such an implication. Had that been our intention, we would have remanded the case back to the trial court for further proceedings. We did not.
For the foregoing reasons, the judgment of the trial court sustaining Entergy's exception of res judicata is affirmed. Because we find that Property Insurers' claim for damages against Entergy is barred by res judicata and was correctly dismissed, there is no need to address the *271 accuracy of the trial court's ruling denying Property Insurers' Motion for Summary Judgment.
AFFIRMED.
NOTES
[1] At the hearing on the exception of res judicata, counsel for Property Insurers had the occasion to explain the insurers' actions in response to the trial court's judgment. He stated:
The judgment awards all of the money to Murphy. It does not name my clients at all. That was, to be perfectly honest, of no moment to Mr. Frilot or Mr. Krouse [counsel for Murphy] or to me, because we had an agreement; and in the interest of full disclosure, we had an agreement that we would share on a pro rata basis a 35/65 percent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567799/ | 170 F.2d 245 (1948)
LEE FONG FOOK
v.
WIXON, District Director, Immigration and Naturalization Service.
No. 11860.
United States Court of Appeals Ninth Circuit.
October 25, 1948.
As Amended November 8, 1948.
Gus C. Ringole, of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Edgar R. Bonsall, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Wayne M. Collins, of San Francisco, Cal. (George G. Olshausen and Theodore *246 Tamba, both of San Francisco, Cal., of counsel), for American Civil Liberties Union of Northern California, amicus curiae.
Before HEALY, BONE, and ORR, Circuit Judges.
PER CURIAM.
Appellant arrived at the port of San Francisco on his return from a visit to China and was there detained by the immigration authorities. After a hearing before a board of special inquiry he was denied admission on a finding that he is an alien immigrant without visa. He thereafter entered an appeal to the Commissioner of Immigration and Naturalization. Pending the appeal he petitioned for a writ of habeas corpus asserting that he is an American citizen by birth and that his detention is unlawful.
The court issued the writ, to which the district director made a return incorporating the evidence taken before the board of special inquiry. No additional evidence was presented and the cause was submitted on the petition, the return, and the traverse. The court, after reciting the evidence bearing on the question of citizenship, denied the petition. D.C., 74 F.Supp. 68. It held that the administrative finding adverse to the petitioner's claim is not reviewable, that is to say, that petitioner is not entitled to a judicial trial. An order of dismissal was entered and the petitioner appeals.
The questions argued on the appeal relate solely to the weight and effect to be given the evidence. For reasons now to be stated we have not considered these questions. In applying for the writ the petitioner claimed that because of his detention he was unable to obtain witnesses in support of his claim of citizenship, and he asked that he be released on bail until the final determination of the administrative and court proceedings. The court thought that due process in the administrative proceeding could not be fully achieved without allowing the petitioner some liberty of action to prepare his case. It felt that his enlargement on bail was an appropriate method of remedying an unfairness not otherwise reachable, and that authority for such enlargement exists in the statute, 28 U.S.C.A. § 2243. Accordingly petitioner's temporary release was directed upon his posting bond in the sum of $1,000. A bond in this amount was posted and the petitioner was released.
In these circumstances we think the court should have deferred decision on the merits.[1] The petitioner having been released on bail to enable him more effectively to pursue his administrative remedy, the better practice would have been to continue the cause before the court until the final determination of the administrative proceeding. Cf. United States v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed 917. Perhaps the appellate body within the Department, with the aid of such additional evidence as petitioner may abe able to present, will reach a conclusion on the facts favorable to the petitioner, in which event no further recourse to the courts would be necessary. If its decision is unfavorable the court will at least have the benefit of the final views of the Department on the effect of the evidentiary showing.
There is a further reason for believing that the decision on the merits should be vacated. This court has just now held that a resident of the United States, who is excluded at the border, is entitled to a judicial trial of his claim to be a citizen. Carmichael v. Delaney, 9 Cir., 170 F.2d 239. On the facts here appearing the petitioner is entitled to urge that he occupies the status of a resident.
The cause is remanded with directions to vacate the order of dismissal and to continue the cause until the final determination of the administrative proceedings. We have examined the petitioner's bond. Its recitals would seem to make it obligatory on him to appear personally at any and all times he may be required to do so and render himself amenable to the orders and process of the court. However, if it is thought that a bond differing in substance should be supplied the court should take appropriate steps to that end.
NOTES
[1] The reported opinion of the trial judge intimates that such was his purpose, but the judgment actually entered was a final judgment denying the petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/999236/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LUCIAN B. COX, III, on his behalf
and on behalf of all the others
similarly situated,
Plaintiff-Appellee,
v.
PARYANK REMESH SHAH; UPS
CORPORATION,
Claimants-Appellants,
and
EUGENE D. DERRY; ROSS COSMETICS
DISTRIBUTION CENTERS,
INCORPORATED; ROGER M.
ROSENBERG; BARRY A. BLOOMFIELD;
SHASHIKANT S. SHETH; MICHAEL E.
No. 98-1357
EMERY; EUGENE H. KARAM; JOHN M.
WATERS; ROSS FREITAS; MEHENDRA
SHETH; KIRIT SHETH; JAMNADAS
SHETH; VIRENDRA SHETH; JAYESH
SHETH; S&J PERFUME COMPANY;
STARION INTERNATIONAL LIMITED,
Defendants,
and
PEARL LEVY; HAIM RONAN; THOMAS
M. KARAM; HAROLD J. KARAM,
Profit Sharing Plan; HAROLD J.
KARAM; RICHARD J. KARAM;
MARGARET KARAM; PRISCILLA W.
KARAM; DANIEL J. KARAM; GLADYS
SAFER; MELISSA FREITAS; GEORGE
O'LEARY; RAMESH DOSHI; JOSEPH
KUNZ; FRED K. MARLER; EDUARDO
HERMOSILLA; FRANCES J. HARRELL; B.
PETER SALEH; JIMMY J. NASSOUR,
Claimants,
WENDELL G. CANTRELL,
Movant.
LUCIAN B. COX, III, on his behalf
and on behalf of all the others
similarly situated,
Plaintiff-Appellee,
v.
GEORGE O'LEARY,
Claimant-Appellant,
and
EUGENE D. DERRY; ROSS COSMETICS
DISTRIBUTION CENTERS,
No. 98-1378
INCORPORATED; ROGER M.
ROSENBERG; BARRY A. BLOOMFIELD;
SHASHIKANT S. SHETH; MICHAEL E.
EMERY; EUGENE H. KARAM; JOHN M.
WATERS; ROSS FREITAS; MEHENDRA
SHETH; KIRIT SHETH; JAMNADAS
SHETH; VIRENDRA SHETH; JAYESH
SHETH; S&J PERFUME COMPANY;
STARION INTERNATIONAL LIMITED,
Defendants,
and
2
PARYANK REMESH SHAH; PEARL
LEVY; HAIM RONAN; THOMAS M.
KARAM; HAROLD J. KARAM, Profit
Sharing Plan; HAROLD J. KARAM;
RICHARD J. KARAM; MARGARET
KARAM; PRISCILLA W. KARAM;
DANIEL J. KARAM; GLADYS SAFER;
MELISSA FREITAS; RAMESH DOSHI;
JOSEPH KUNZ; UPS CORPORATION,
Claimants,
WENDELL G. CANTRELL,
Movant.
LUCIAN B. COX, III, on his behalf
and on behalf of all the others
similarly situated,
Plaintiff-Appellee,
v.
GLADYS SAFER,
Claimant-Appellant,
and
No. 98-1739
EUGENE D. DERRY; ROSS COSMETICS
DISTRIBUTION CENTERS,
INCORPORATED; ROGER M.
ROSENBERG; BARRY A. BLOOMFIELD;
SHASHIKANT S. SHETH; MICHAEL E.
EMERY; EUGENE H. KARAM; JOHN M.
WATERS; ROSS FREITAS; MEHENDRA
SHETH; KIRIT SHETH; JAMNADAS
3
SHETH; VIRENDRA SHETH; JAYESH
SHETH; S&J PERFUME COMPANY;
STARION INTERNATIONAL LIMITED,
Defendants,
and
PARYANK REMESH SHAH; PEARL
LEVY; HAIM RONAN; THOMAS M.
KARAM; HAROLD J. KARAM, Profit
Sharing Plan; HAROLD J. KARAM;
RICHARD J. KARAM; MARGARET
KARAM; PRISCILLA W. KARAM;
DANIEL J. KARAM; MELISSA FREITAS;
GEORGE O'LEARY; RAMESH DOSHI;
JOSEPH KUNZ; UPS CORPORATION,
Claimants,
WENDELL G. CANTRELL
Movant.
Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CA-92-1706-7-13)
Argued: January 28, 1999
Decided: July 13, 1999
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
_________________________________________________________________
4
COUNSEL
ARGUED: Robert Y. Knowlton, SINKLER & BOYD, Columbia,
South Carolina for Appellants Shah and UPS; Donald Fred Schneider,
FELTMAN, KARESH, MAJOR & FARBMAN, L.L.P., New York,
New York, for Appellants O'Leary and Safer. Arthur Camden Lewis,
LEWIS, BABCOCK & HAWKINS, L.L.P., Columbia, South Caro-
lina, for Appellee. ON BRIEF: Anne D. Zuckerman, LEWIS, BAB-
COCK & HAWKINS, L.L.P., Columbia, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Claimants-Appellants George J. O'Leary, Gladys M. Safer, Pary-
ank Ramesh Shah, and UPS Corporation1 appeal their exclusion by
the district court from a settlement fund resulting from a class action
securities fraud lawsuit filed against Ross Cosmetics Distribution
Centers, Inc., certain officers and directors, and certain nonemployee
related persons and entities (collectively the Defendants). We affirm
the district court's denial of O'Leary's claim based upon our conclu-
sion that it did not clearly err in finding that he was an "affiliate"
under the settlement agreement entered into by the Plaintiffs and Set-
tling Defendants. We vacate the district court's denial of the claims
of Safer, Shah, and UPS based upon our concern that the district court
may have erred in assigning too broad a definition to "affiliate."
_________________________________________________________________
1 UPS Corporation, which is not affiliated with United Parcel Service,
was formed in December 1991 by Shah for "personal financial reasons."
(J.A. at 627.) Shah and his wife are the equitable owners of the stock.
Shah's wife did not participate in UPS's decisions to purchase shares of
Ross Cosmetics.
5
Because we cannot discern from the record what definition of "affili-
ate" the parties to the settlement agreement adopted, we remand this
case to the district court with instructions to hold an evidentiary hear-
ing to make that determination and to apply this resulting definition
to the claims of Safer, Shah, and UPS.
I.
Between roughly June 12 and July 1, 1992, thirteen lawsuits were
filed in the United States District Court for the District of South Caro-
lina against Ross Cosmetics Distribution Centers, Inc. (Ross Cosmet-
ics or the Company), certain directors and officers of the Company,
and certain nonemployee related persons and entities. By Order of
September 8, 1992 (the September 8 Order), the district court consoli-
dated all of these actions and appointed the law firms of Cohen, Mil-
stein, Hausfeld & Toll and Zwerling, Schachter & Zwerling as
counsel for the plaintiff class (Co-Lead Counsel). The September 8
Order also directed the Plaintiffs2 to file one Consolidated Amended
Complaint. This Complaint was filed on October 8, 1992, on behalf
of all persons who had purchased shares of Ross Cosmetics between
June 25, 1991 and June 11, 1992, (the class). The Complaint alleged
violations of Sections 10(b), 20(a), and 14(a) of the Securities
Exchange Act of 1934 (the Exchange Act), of Rules 10b-5 and 14a-
9 promulgated thereunder, see 17 C.F.R.§§ 240.10b-5 and 240.14a-9,
and of South Carolina state common law.3
_________________________________________________________________
2 The Plaintiffs are Lucian B. Cox, III, Samuel Spielberg, Vincent Tor-
torella, Walter Poppe, Bruce R. Johnstone, James Bryant, Nicholas Sab-
batini, Loretta Kull, Filomena and James Bella, Michael and Rhoda
Galub, Albert Karp, Florence Karp, Limor, Inc., Michael Gavelek, Wil-
liam Morris, Wendell G. Cantrell, Hugh H. Brantley, Oren R. Judy, Jr.,
Billy L. Painter, John and Charlotte Hall, Willie H. and Anna S. Bridges,
Douglas A. Churder, Brenda and Walter Dean, Johnny Joseph Green, Bo
Greer and Pamela Lee Harris, Joseph Daniel Johnson, Terry Millwood,
Susan Potter, Mary Lou Tye, Ceres Vandiver, and Vicki Wilson. (Stipu-
lation of Settlement ¶ A.27.)
3 The factual basis of the claims was that a group of individuals (the
Core Sheth Families), who owned the company that was the sole supplier
of fragrances and perfumes to Ross Cosmetics, secretly and in violation
of the federal securities laws gained a majority of Ross Cosmetics stock
6
On August 28, 1993, the Plaintiffs and the Settling Defendants4
entered into a Stipulation of Settlement (the Stipulation), which pro-
vided for payment of $9.5 million to the class. Pertinent portions of
the Stipulation defined the class in the following manner:
4. "Class" shall mean all Persons who purchased the
common stock of Ross Cosmetics during the Class Period
[June 25, 1991 through June 11, 1992, inclusive]. Excluded
from the Class are the Excluded Persons (defined below in
¶A.16). Also excluded from the Class are those individuals
who exercise rights of exclusion pursuant to the Hearing
Order.
....
16. "Excluded Persons" shall mean the Defendants and
Ernst & Young, members of their immediate families, any
Person in which any Defendant or Ernst & Young has a con-
trolling interest or which is related to or affiliated with, and
the legal representatives, heirs, successors-in-interest or
assigns of all of the foregoing.
(Stipulation of Settlement ¶¶ A.4, A.16). Nowhere in the Stipulation
_________________________________________________________________
by the commencement of the class period and that the Defendants
shielded this fact from public view. The Complaint alleges that the
Defendants created the illusion that Ross Cosmetics was a well-managed,
independent, financially viable company owned by a majority of unaffili-
ated stockholders that was experiencing tremendous growth and profit-
ability when in reality it was a puppet of the Core Sheth Families that
lacked the economic viability to operate but for the affiliation with the
Core Sheth Families. As a result of this alleged fraud, the Plaintiffs
alleged that they paid artificially inflated prices for Ross Cosmetics com-
mon stock.
4 The Settling Defendants are Michael E. Emery, Eugene H. Karam,
John M. Waters, Shashikant Sheth, Mehendra Sheth, Kirit Sheth, Jamna-
das Sheth, Jayesh Sheth, Virendra Sheth, S&J Perfume Co., Starion
International Ltd., Ross Cosmetics Distribution Centers, Inc., and Barry
A. Bloomfield. (Stipulation of Settlement ¶ A.38.)
7
was the term "affiliated" defined. By Order of September 30, 1993
(the September 30 Order), the district court, pursuant to Rule 23(e) of
the Federal Rules of Civil Procedure, preliminarily approved the
terms of the Stipulation and settlement provided for therein (the Set-
tlement) and certified the class in accordance with the terms of the
Stipulation. The September 30 Order directed that a notice with a
claim be mailed to all class members and that a hearing be held on
December 15, 1993, to consider the fairness, reasonableness, and ade-
quacy of the Settlement. The September 30 Order also designated Co-
Lead Counsel as Settlement Counsel to process all Proofs of Claim
and administer the Settlement.
Notice dated October 15, 1993, with attached claim forms, was
sent to class members notifying them of the class certification and a
proposed partial class settlement. The notice included an exclusion
provision substantially the same as the one in the Stipulation:
Excluded from the Class are Ernst & Young and the defen-
dants in the Action, any subsidiary or affiliate of any of
them, any person or entity who is a shareholder (other than
a shareholder of Ross Cosmetics), partner, officer, director,
or controlling person of any of them, any entity in which
any of them has a controlling interest, members of the fami-
lies of each of them and the legal representatives, heirs, suc-
cessors or assigns of any of them. Also excluded from the
Class will be any purchaser of Ross Cosmetics common
stock during the Class Period, who requests exclusion.
(J.A. at 535.) Nowhere in the notice was the term"affiliate" defined.
The notice gave all class members until November 30, 1993, to
request exclusion from the class. Claimants-Appellants received the
notice and did not seek exclusion from the class. Following a hearing
on December 15, 1993, the district court issued an Order and Final
Judgment approving the Settlement as fair, reasonable, and adequate.
After Ernst & Young filed an opposition to the proposed distribu-
tion to certain claimants, the district court held an evidentiary hearing
on October 23, 1996, regarding postsettlement activities (the October
23 Hearing). At this hearing, the district court defined "affiliate" as
"people who are [in] some way associated with this massive fraud."
8
(J.A. at 211.) The district court held that the Settlement Counsel were
responsible for the investigation of claims to the Settlement and that
the investigation was deficient in many respects. The district court
concluded that further investigation into certain paid and contested
claims was necessary and that it should exercise general supervisory
powers over the postsettlement activities and administration of claims
in the class action. As part of that power, the district court appointed
a court investigator (the Court Investigator) to investigate and issue
a report to the court on certain previously paid claims and contested
claims. The Court Investigator's report recommended that the district
court find, inter alia, that George J. O'Leary was an affiliate of Ross
Freitas, the former President of Ross Cosmetics and a defendant in the
suit, and his claim should therefore be rejected; that Gladys M. Safer
should be deemed an affiliate of Freitas, and her claim should there-
fore be rejected; and that Paryank Ramesh Shah and UPS Corporation
should be deemed affiliates because of Shah's "knowledge of previ-
ously undisclosed information relative to Ross Cosmetics['s] manage-
ment structure," and their claims should therefore be rejected. (J.A. at
660.)
On September 2, 1997, the district court held a hearing on the
Court Investigator's report, providing Claimants-Appellants with the
opportunity to present evidence related to their contested claims (the
September 2 Hearing). At this hearing, the Court Investigator stated
that he was not sure of the working definition of the term "affiliate,"
but he had defined it as "individuals who conducted business or finan-
cial transactions with one of the defendants or one of the named com-
panies." (J.A. at 233.) The Court Investigator's definition was
challenged by two expert witnesses on behalf of Settlement Counsel,
who defined "affiliate" based upon the definition in the federal securi-
ties laws, which contemplates control. Both experts rejected the Court
Investigator's definition of "affiliate." One of these experts stated that
applying the federal securities law concept of "affiliate," he saw no
reason not to pay the claims of O'Leary, Shah, and UPS.
At the end of the hearing, the district court appointed a Special
Counsel to the class (Special Counsel) and instructed him to work
with the Court Investigator and Settlement Counsel for the class to
review claims made by Claimants-Appellants and others against the
settlement fund. The district court issued an Order dated October 22,
9
1997 directing, inter alia, that Special Counsel contact O'Leary,
Safer, Shah, and UPS to resolve their pending claims. On January 20,
1998, the Special Counsel filed his Report and Recommendations to
the district court.
On February 10, 1998, the district court issued an Order adjudicat-
ing the claims of O'Leary, Safer, Shah, and UPS (the February 10
Order). In the February 10 Order, the district court stated that "affili-
ated" and/or "control" persons as defined by Rule 12b-2 are excluded
persons.5 Citing Zimmerman v. Bell, 800 F.2d 386, 390 (4th Cir.
1986) and other cases as support, the district court stated that in addi-
tion, "all persons who had knowledge of any of the wrongdoings
alleged in the Complaint would not be entitled to any recovery." (J.A.
at 359.) The district court denied O'Leary's claim based upon its con-
clusion that he was an affiliate of Ross Freitas under the federal secur-
ities law definition in Rule 12b-2.6 The district court denied Safer's
claim based upon its conclusion that she had a "close connection or
an alliance with Ross Freitas." (J.A. at 369.) Applying its
"knowledge-of-wrongdoing" standard to Shah and UPS, the district
court concluded that Shah and UPS would not be entitled to recovery
_________________________________________________________________
5 Rule 12b-2, promulgated under the Exchange Act, defines "affiliate"
and "control" in the following manner:
An "affiliate" of, or a person "affiliated" with, a specified person,
is a person that directly, or indirectly through one or more inter-
mediaries, controls, or is controlled by, or is under common con-
trol with, the person specified.
The term "control" (including the terms "controlling," "con-
trolled by" and "under common control with") means the posses-
sion, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or other-
wise.
17 C.F.R. § 240.12b-2 (1998).
6 Although the district court did not specifically mention Rule 12b-2 in
its discussion of O'Leary's claim, we surmise that it excluded his claim
under the Rule 12b-2 definition of "affiliate" based upon its discussion
of the control Freitas possessed over O'Leary's stock brokerage account,
its omission of any discussion of knowledge of wrongdoing by O'Leary,
and its unequivocal conclusion that O'Leary was an affiliate of Freitas.
10
because Shah had "inside information unavailable to the public" of
the involvement of the Core Sheth Families in the management of
Ross Cosmetics gained through his contact with the Core Sheth Fami-
lies and he made all investment decisions on behalf of UPS. (J.A. at
372.) These four claimants filed notices of appeal, and their cases
were consolidated for appeal to this Court. We address their claims
in turn.
II.
The district court applied the standard federal securities law defini-
tion of "affiliate" in Rule 12b-2 to exclude the claim of O'Leary from
the Settlement. Because both Claimants-Appellants and Appellees do
not dispute that an "affiliate" as defined in Rule 12b-2 is excluded
from the Settlement, our task is limited to determining whether the
district court clearly erred in its factual finding that O'Leary was an
affiliate of Ross Freitas. We will set aside the district court's factual
finding that O'Leary was an affiliate of Freitas as clearly erroneous
only if we, after considering all of the evidence, are "left with the def-
inite and firm conviction that a mistake has been committed." United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). In
making this determination, "we must give due regard to the opportu-
nity of the district court to judge the credibility of witnesses." Multi-
Channel TV Cable Co. v. Charlottesville Quality Cable Corp., 65
F.3d 1113, 1122 (4th Cir. 1995).
The district court based its finding that O'Leary was an affiliate of
Freitas upon evidence that (1) O'Leary executed an unlimited power
of attorney dated June 4, 1992, authorizing Freitas to trade stock in
O'Leary's brokerage account, (2) O'Leary lived at the same address
as or with Carolyn Safer Kenner, a Ross Cosmetics corporate officer,
(3) O'Leary traded through the same brokers as Kenner and Freitas
and used the same account executive, and (4) Ralph McNamara, a
long time friend of Freitas made inquiries about the status of
O'Leary's account, Freitas's account, Safer's account, and the
account of a Freitas-Safer stock partnership. The district court further
pointed out that O'Leary failed to provide any additional evidence in
support of his claim after the September 2 Hearing on the report of
the Court Investigator.
11
At the October 23 Hearing, O'Leary testified that he did not have
day-to-day dealings with Freitas and did not discuss any of the Ross
Cosmetics stock transactions with Freitas. O'Leary also testified that
no one made trades in his account without his instructions or consent.
As the arbiter of credibility, the district court was free to discredit this
self-serving testimony. See Cebollero v. Commissioner, 967 F.2d 986,
992 (4th Cir. 1992). Moreover, O'Leary's grant to Freitas of an
unlimited power of attorney to trade in his account belies his claim
that Freitas was merely a social contact. That the record does not indi-
cate that any trading by Freitas actually occurred is irrelevant because
the federal securities law defines "control" as possession of power to
direct or cause the direction of the management and policies of a per-
son, not the actual use of such power. See 17 C.F.R. § 240.12b-2
(1998) (Rule 12b-2 definition). In light of these facts, the district
court's finding that O'Leary was an affiliate of Freitas was not clearly
erroneous because it was not against the clear weight of the evidence
considered in light of the entire record. See Jiminez v. Mary Washing-
ton College, 57 F.3d 369, 379 (4th Cir. 1995). We therefore affirm the
district court's denial of O'Leary's claim.
III.
The district court excluded the claims of Shah and UPS from the
Settlement based upon its finding that Shah had knowledge of wrong-
doings alleged in the Complaint gained through his contact with the
Core Sheth Families and excluded the claim of Safer from the Settle-
ment based upon its finding that she had a close connection or an alli-
ance with Ross Freitas. Because these grounds of exclusion deviate
from the Rule 12b-2 definition of "affiliate" that is accepted by all
parties to this litigation, the issue that we must address for these
claims is whether these grounds of exclusion were appropriate.
Claimants-Appellants argue that their fundamental due process rights
will be violated if they are excluded from the Settlement based upon
any definition of "affiliate" other than the Rule 12b-2 definition
because they relied upon the latter in refraining from instituting their
own suits and may now be prevented from suing individually due to
the expiration of the applicable statute of limitations. Appellees
counter that the district court appropriately exercised its equitable
powers in excluding claimants who were associated with wrongdoing
12
or a wrongdoer from the settlement fund.7 The district court's action
can logically be interpreted either as adding other grounds of exclu-
sion to the Stipulation or interpreting "affiliate" to include individuals
who had knowledge of wrongdoing and/or a close connection with a
wrongdoer. We address each of these possibilities in turn.
A.
The first possibility is that the district court added "knowledge of
. . . wrongdoings alleged in the Complaint" and/or a "close connection
or an alliance" with a wrongdoer as another ground of exclusion
under the Stipulation. We can dispose of this possibility rather easily.
Although Rule 23(c)(1) of the Federal Rules of Civil Procedure pro-
vides that a district court may alter or amend the class "before the
decision on the merits," that rule is inapplicable, absent egregious
error, where the district court has already entered a final judgment
approving a settlement of the class action suit. See Jeff D. v. Andrus,
899 F.2d 753, 758 (9th Cir. 1989). Moreover, the district court's
power to approve or reject class action settlements under Rule 23(e)
of the Federal Rules of Civil Procedure does not permit it to modify
_________________________________________________________________
7 Appellees also make two waiver arguments, neither of which is per-
suasive. First, Appellees argue that Claimants-Appellants waived any
objection to the district court's definition of"affiliate" by not appealing
from the December 15 Order approving the settlement. The December 15
Order never defined "affiliate," however, so it is not clear what
Claimants-Appellants could have appealed. Second, Appellees argue that
Claimants-Appellants waived any objection to the district court's defini-
tion of "affiliate" put forward at the October 23 Hearing. In its February
10 Order, however, the district court made no finding that any of the
Claimants-Appellants was "associated" with the alleged fraud, and, in
fact, adopted a different and even broader definition of "affiliate." More-
over, an appeal of the district court's definition at the October 23 Hear-
ing would have constituted an interlocutory appeal, which is disfavored.
See 28 U.S.C.A. § 1291 (West 1993); Gardner v. Westinghouse Broad-
casting Co., 437 U.S. 478, 480 (1978). As this Court has noted, "A single
appeal following final judgment facilitates orderly litigation and compre-
hensive appellate review of all issues presented, many of which are
dependent upon or related to other issues in the suit." Carson v. Ameri-
can Brands, Inc., 606 F.2d 420, 422 (4th Cir. 1979) (en banc), rev'd on
other grounds, 450 U.S. 79 (1981).
13
the terms of a negotiated settlement. See Evans v. Jeff D., 475 U.S.
717, 727 (1986). In this case, the district court made its earliest hint
of excluding individuals with knowledge of wrongdoing or a close
connection with a wrongdoer at the October 23 Hearing, nearly three
years after it had approved the Settlement. We do not believe that the
omission from the Stipulation of an explicit exclusion of individuals
with knowledge of wrongdoing and/or a close connection with a
wrongdoer constitutes egregious error sufficient for the district court
to alter the class. However noble a goal it might have been to exclude
these individuals from sharing in the Settlement, the district court was
not empowered unilaterally to add this additional ground of exclusion
to the Stipulation after it had approved the Settlement.
B.
The second possibility is that the district court interpreted "affili-
ate" to include knowledge of wrongdoing and/or a close connection
or an alliance with a wrongdoer. A settlement agreement is a contract
and must be interpreted as such. See United States v. ITT Continental
Baking Co., 420 U.S. 223, 238 (1975). Because contract construction
is a question of law, we review the district court's interpretation of the
Stipulation de novo. See Nehi Bottling Co. v. All-American Bottling
Corp., 8 F.3d 157, 161-62 (4th Cir. 1993). The Stipulation states that
all terms "shall be governed and interpreted according to the laws of
Delaware without regard to its conflict of law rules, unless otherwise
superseded or governed by federal law in which case federal law shall
take precedence." (Stipulation of Settlement¶ Q.10.) In federal secur-
ities litigation, this Court gives effect to a choice-of-law provision in
a contract absent evidence that the provision is unreasonable. See
Allen v. Lloyd's of London, 94 F.3d 923, 928 (4th Cir. 1996). Finding
no unreasonableness here, we apply Delaware law to determine the
definition of "affiliate" unless the definition of "affiliate" is governed
by federal law, in which case we apply federal law.
When interpreting a contract under Delaware law, a court's author-
ity is limited to giving effect to the parties' intentions, as evidenced
by the terms of the contract. See Burge v. Fidelity Bond & Mortgage
Co., 648 A.2d 414, 420 (Del. 1994). Under the plain language
approach to contract interpretation, where the relevant contract provi-
sion is clear and unambiguous, a court should give effect to the provi-
14
sion's plain meaning. See Myers v. Myers, 408 A.2d 279, 280 (Del.
1979). When the provision at issue, however, is"fairly susceptible of
different interpretations or may have two or more different meanings,
there is ambiguity." Eagle Indus. v. DeVilbiss Health Care, Inc., 702
A.2d 1228, 1232 (Del. 1997). In an ambiguous situation, "the inter-
preting court must look beyond the language of the contract to ascer-
tain the parties' intentions." Id.
Our task, therefore, is to determine whether the term "affiliate" in
the Stipulation is ambiguous. In standard legal parlance, "affiliate"
denotes a close connection or association between two persons. See,
e.g., Black's Law Dictionary 58 (6th ed. 1990) (defining "affiliate" as
"signif[ying] a condition of being united; being in close connection,
allied, associated, or attached as a member or branch"). Rule 12b-2,
the definition advanced by Claimants-Appellants, defines "affiliate"
in a similar, but more narrow, fashion:
An "affiliate" of, or a person "affiliated" with, a specified
person, is a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, the person specified.
The term "control" (including the terms "controlling," "con-
trolled by" and "under common control with") means the
possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a person,
whether through the ownership of voting securities, by con-
tract, or otherwise.
17 C.F.R. § 240.12b-2 (1998). With these definitions in mind, we turn
to the claims at issue.
The district court excluded the claims of Shah and UPS from the
Settlement on the ground that Shah had knowledge of wrongdoing
alleged in the Complaint gained through his contact with the Core
Sheth Families. The district court excluded Safer's claim from the
Settlement on the ground that she had a close connection or an alli-
ance with Freitas. In essence, the district court applied the standard
legal definition of "affiliate" to deny the claims of Safer, Shah, and
UPS. This definition is certainly a plausible one. The context in which
15
"affiliate" is used in the "Excluded Persons" section of the Stipulation
and in the class notice sent to class members confirms that the parties
intended to exclude persons with some connection to Defendants or
Ernst & Young from the Settlement.8 See Stipulation of Settlement
¶ A.16 ("Excluded Persons shall mean the Defendants and Ernst &
Young, . . . any Person in which any Defendant or Ernst & Young has
a controlling interest or which is related to or affiliated with . . . .");
Class Notice (J.A. at 535) ("Excluded from the Class are Ernst &
Young and the defendants in the Action, any subsidiary or affiliate of
any of them . . . ."). The participants' other uses of "affiliate" during
the settlement proceedings reiterate that "affiliate" implies a close
relationship between two persons. See Letter from Co-Lead Counsel
to Gladys Safer of 12/12/94 (J.A. at 584) (describing Carolyn Safer
Kenner, a former Ross Cosmetics officer, as "a business partner and
an affiliate of" Freitas); Stipulation of Settlement ¶ A.30 (defining
"Released Parties" as, inter alia,"the Settling Defendants, . . . each
and every one of their predecessors, present or former successors,
assigns, affiliates . . . .").
Although a "close connection or an alliance" is a plausible defini-
tion of "affiliate," it is not the only plausible one. Because the Settle-
ment arose from a class action lawsuit brought under the Exchange
Act, the parties to the Stipulation may have intended to limit "affili-
ate" to its definition in Rule 12b-2, a regulation promulgated under
the Exchange Act. The term "affiliate" is thus fairly susceptible of
two different interpretations: (1) the Rule 12b-2 definition of a person
who controls, or is controlled by, another person, and (2) the standard
legal definition of a person with a close connection or alliance with
another person, which encompasses the Rule 12b-2 definition.
Accordingly, we must look beyond the language of the Stipulation to
ascertain the parties' intentions in excluding "affiliates" of the Defen-
dants and of Ernst & Young from the Settlement.
Unfortunately, we are not well-suited to the task before us. We
simply cannot discern from the record the definition of "affiliate"
agreed upon by the parties. Because "affiliate" is fairly susceptible of
two different interpretations, it is appropriate for the district court to
_________________________________________________________________
8 The Stipulation defines "Person" as "any individual, firm, corporation
or other entity." (Stipulation of Settlement¶ A.25.)
16
receive extrinsic evidence to determine what the parties to the Stipula-
tion believed the term "affiliate" to mean. See Eagle Indus., 702 A.2d
at 1233 (holding that trial court may consider extrinsic evidence,
including prior agreements and communications of the parties, in con-
struing ambiguous contractual provision). After determining the defi-
nition of "affiliate" agreed upon by the parties, the district court must
apply this definition to the claims of Safer, Shah, and UPS. We there-
fore vacate the district court's denial of the claims of Safer, Shah, and
UPS and remand to the district court to hold an evidentiary hearing
to determine the definition of "affiliate" adopted by the parties and to
apply this definition to the claims of Safer, Shah and UPS.9
IV.
In sum, we affirm the district court's exclusion of O'Leary from
the Settlement based upon our conclusion that the district court did
not clearly err in finding that he was an affiliate of Freitas under the
federal securities law definition of "affiliate." We vacate the district
court's exclusion of Safer, Shah, and UPS from the Settlement based
_________________________________________________________________
9 "Generally speaking, the practical interpretation of a contract by the
parties to it for any considerable period of time before it comes to be the
subject of controversy is deemed of great, if not controlling, influence."
Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 118 (1913). Thus,
the district court should credit evidence that indicates what the parties to
the Stipulation understood "affiliate" to mean prior to the hearings held
by the district court. See Sanchez v. Maher, 560 F.2d 1105, 1108 & n.3
(2d Cir. 1977) (upholding district court's reliance on letter written by
defendant over one year after stipulation was entered into as evidence of
meaning of ambiguous provision). We do not believe that a conclusion
by the district court that "affiliate" included individuals who had a close
connection or association with any of the Defendants would violate the
fundamental due process rights of Claimants-Appellants. Unlike the cor-
poration in In re Anthracite Coal Antitrust Litigation, 87 F.R.D. 555
(M.D. Pa. 1980), a case relied upon by Claimants-Appellants, Claimants-
Appellants were not misled into believing that they were included in the
plaintiff-class; they were only unsure about the exact meaning of "affili-
ate" adopted by the parties. After receiving the class notice, Claimants-
Appellants easily could have inquired about the definition of "affiliate"
adopted by the parties prior to November 30, 1993, the deadline for
requesting exclusion from the class.
17
upon our conclusion that the district court may have erred in defining
"affiliate" to include more than the federal securities law definition
and in applying this expanded but perhaps not agreed-upon definition
to exclude their claims. Because we cannot discern from the record
what definition of "affiliate" the parties to the Stipulation adopted, we
remand this case to the district court with instructions to hold an evi-
dentiary hearing to make this determination and to apply the resulting
definition to the claims of Safer, Shah, and UPS.
AFFIRMED IN PART, VACATED AND
REMANDED IN PART
18 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/999240/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELNORA MAE BOYD, individually and
as personal representative of the
estate of Richard Boyd,
Plaintiff-Appellant,
v. No. 98-1456
WATERFRONT EMPLOYERS ILA
PENSION PLAN, in the ports of South
Carolina,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-97-252-18-2)
Argued: March 4, 1999
Decided: July 13, 1999
Before HAMILTON and TRAXLER, Circuit Judges,
and LEE, United States District Judge for the
Eastern District of Virginia,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Howard Wayne Floyd, WAYNE FLOYD LAW OFFICE,
P.A., West Columbia, South Carolina, for Appellant. Marvin DeWitt
Infinger, SINKLER & BOYD, P.A., Charleston, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Plaintiff-Petitioner Elnora (Ella) Mae Boyd brought this action
seeking benefits as the "surviving spouse" of Richard Boyd from
Defendant-Respondent Waterfront Employers - I.L.A. in the Ports of
South Carolina Pension Plan (the "Plan"). The Plan is a defined bene-
fit plan under the Employee Retirement Income Security Act of 1974
("ERISA"). After discovering that Ella and Richard Boyd were never
legally married, the Plan terminated benefits and this termination was
affirmed by the Plan's trustees ("Trustees"). Ms. Boyd sued to rein-
state her benefits in South Carolina state court. The Plan removed the
case to district court because it involved benefits under ERISA. After
a bench trial, the district court upheld the Trustees' decision. For the
reasons stated below, we affirm the decision of the district court.
Plaintiff Ella Boyd "married" Richard Boyd on July 27, 1967.
Richard Boyd was a member of the Plan. Mr. Boyd was killed in a
job related accident in 1989, at which time the Plan covered him. The
Plan paid Ms. Boyd spousal benefits and life insurance proceeds in
excess of $170,000. Previously, Ms. Boyd had married George Alston
on June 29, 1951. In 1954, the Domestic Relations Court of the
County of Charleston ordered their "legal separation." However, they
were never legally divorced. When Mr. Alston, who was also a mem-
ber of the same plan, inquired about his benefits, he revealed that he
was not divorced from Ms. Boyd. Upon investigation, the Plan con-
firmed these facts and terminated payments to Ms. Boyd. We review
this decision.
2
According to Ms. Boyd, she and Richard Boyd thought that they
were husband and wife. The couple entered a good faith, licensed cer-
emonial marriage in 1967, raised three children, and lived together
until Mr. Boyd's death in 1989. Ms. Boyd argues that"beneficiary"
is defined as the person designated by the member, including any per-
son appearing equitably entitled to payment. As she was designated
Richard Boyd's beneficiary under the Plan, Ms. Boyd seeks benefit
payments. Furthermore, she contends that the Plan does not specifi-
cally preclude a putative spouse from receiving spousal benefits.
Although the putative spouse doctrine has not been ruled on in South
Carolina, Ms. Boyd contends that an intermediate appellate decision
indicates that it is a viable doctrine. See Lovett v. Lovett, 494 S.E.2d
823, 826 (S.C. Ct. App. 1997) (recognizing that some jurisdictions
have adopted the putative spouse doctrine but declining to address the
issue). Alternatively, Ms. Boyd would like the question certified to
the South Carolina Supreme Court as the Second Circuit certified a
similar question regarding ERISA benefits and the putative spouse
doctrine. See Grabois v. Jones, 77 F.3d 574 (2d Cir. 1996).
On the contrary, the Plan argues that trustees and administrators
have the primary responsibility for determination of benefit issues and
interpretations of ERISA plan provisions. In this instance, Defendant
contends that both the statute and the cases interpreting the statute
indicate that the Trustees' decision to deny Ms. Boyd benefits was a
reasoned, deliberate, principled decision. Finally, the Plan cautions
that South Carolina has not adopted the putative spouse doctrine.
The parties dispute which standard of review, de novo or abuse of
discretion, applies. Ms. Boyd contends that this Court has de novo
review over all issues presented, particularly whether the district court
applied the correct law when it failed to recognize the putative spouse
doctrine. The Plan argues that when reviewing the Trustees' decision
the Court must apply the abuse of discretion standard.
This Court reviews questions of law de novo.* However, where the
_________________________________________________________________
*Although Ms. Boyd presents her argument as a question of law, there
is no question that the district court applied the law of South Carolina as
it exists. Despite the dicta in the Lovett case, South Carolina has not
adopted the putative spouse doctrine. 494 S.E.2d at 826. Thus, the dis-
trict court applied the correct law.
3
benefit plan gives the administrator or trustee discretionary authority
to determine eligibility or to construe the terms of the plan, the denial
decision must be reviewed for abuse of discretion. Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Under this deferential
standard, the trustee's decision will not be disturbed if it is reason-
able, even if this Court would have come to a different conclusion
independently. Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228, 232
(4th Cir. 1997). Such a decision is reasonable if it is the result of a
deliberate, principled reasoning process and if it is supported by sub-
stantial evidence. Brogan v. Holland, 105 F.3d 158, 161 (4th Cir.
1997).
As a threshold inquiry, the reviewing court determines de novo
whether the ERISA plan confers discretionary authority on the trustee
and if so whether the trustee acted within that discretion. Ellis, 126
F.3d at 233. In this case, the Trustees possessed the discretionary
authority to determine whether Ms. Boyd was entitled to the benefits,
and the denial of benefits was within the scope of their authority. Nei-
ther party has disputed this issue. Thus, the Court reviews the Plan's
decision for abuse of discretion.
In determining whether trustees abused their discretion, the Court
considers 1) whether the trustees' interpretation is consistent with the
goals of the plan; 2) whether it might render some language in the
plan meaningless or internally inconsistent; 3) whether the challenged
interpretation is at odds with the procedural and substantive require-
ments of ERISA itself; 4) whether the provisions at issue have been
applied consistently; and 5) whether the trustees' interpretation is
contrary to the clear language of the plan. Brogan, 105 F.3d at 161.
Section 2.14 of the Plan provides that
"Eligible spouse" shall mean the husband or wife of a Mem-
ber to whom the Active Member has been married for a
period of at least one year immediately preceding the date
he dies or to whom the Active Member is married on the
date benefits payable to him hereunder (other than a Pre-
Retirement Spouse's Benefit) commence.
South Carolina law forbids a person from having more than one living
spouse. The statute provides that "[a]ll marriages contracted while
4
either of the parties has a former wife or husband living shall be
void." S.C. Code Ann. § 20-1-80 (Law. Co-op. 1976). Because Ms.
Boyd never dissolved her first marriage to Mr. Alston, her second
marriage to Richard Boyd was a legal nullity. Day v. Day, 58 S.E.2d
83, 85 (S.C. 1950). Thus, the Plan's decision to terminate benefits is
consistent with the language of the Plan and South Carolina law.
Ms. Boyd only seems to challenge the Plan's discretion concerning
whether the provisions have been applied consistently. She argues
that the Plan paid benefits to another survivor, Clementine Ellis, who
was not the legal wife of the Plan member. However, the record
reveals that Clementine Ellis was the common law wife of the
deceased and the Plan decided not to litigate the issue. In contrast,
Ms. Boyd was married to another man and does not have a legal basis
(besides the putative spouse doctrine which is not recognized in South
Carolina) to allege that she is the legal wife of Richard Boyd. Further-
more, the Plan reasoned that allowing her and other putative spouses
to recover may open the door to multiple claims for surviving spouse
benefits. The Trustees' interpretation that a legal marriage is a prereq-
uisite to qualifying as an "eligible spouse" prevents multiple persons
from claiming "eligible spouse" status. Thus, the Trustees' decision
to deny Ms. Boyd benefits was reasoned, deliberate, and principled,
and not inconsistent with their decision regarding Clementine Ellis.
On the issue of certification, the putative spouse doctrine has not
been specifically addressed in South Carolina. However, this case is
different from Grabois v. Jones, where the question was certified. 77
F.3d 574. In Grabois, the plan fiduciary had not made a decision.
Instead, the plan fiduciary filed an interpleader complaint for declara-
tory judgment as to which of the two claimants was entitled to receive
the benefits. Id. at 576-577. In our case, the Trustees decided not to
award the benefits and acted within their discretion and consistent
with South Carolina law.
For the reasons stated above, we affirm the decision of the district
court.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1033838/ | Filed 7/15/13 P. v. Lopez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B244558
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. BA372129)
v.
PASCUAL LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Kennedy, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, for Plaintiff and Respondent.
__________________________________
After the trial court denied defendant and appellant Pascual Lopez‟s motion to
suppress his confession as involuntary, the jury found defendant guilty of the attempted
willful, deliberate, and premeditated murder of Terek Taylor in violation of Penal Code
sections 664 and 187, subdivision (a).1 The jury found true the allegation pursuant to
section 186.22, subdivision (b)(1)(C) that the offense was committed for the benefit of a
criminal street gang with the specific intent to promote criminal conduct by gang
members. The jury found not true various allegations that defendant personally
discharged a firearm in the commission of the offense. The court imposed a sentence of
life with a minimum of 15 years in state prison. In this timely appeal from the judgment,
defendant contends admission of the confession violated due process because the
confession was involuntary. We affirm.
PROCEEDINGS ON THE MOTION TO SUPPRESS
Defendant filed a motion to suppress statements he made to police detectives
during a recorded, post-arrest interview on December 17, 2009. Defendant contended the
statements were involuntary, in that he was 17 years old and his statements were
procured by an implied promise that the police would release his father, brother, and
cousin, who were in custody, if he confessed to his role in the shooting. In support of the
motion, defendant submitted a stipulation of counsel and a transcript of the interview.
Stipulation
At the time defendant gave the interview, his father and brother were under arrest,
the father for possession of a firearm by a prohibited person in violation of section 12021,
subdivision (a)(1) and the brother for possession for sale of marijuana in violation of
Health and Safety Code section 11359. Defendant was 17 years old.
1 All statutory references are to the Penal Code unless indicated otherwise.
2
Interview Statements
A Los Angeles Police Department detective told defendant his cousin Luis was at
the police station, the police investigation had revealed that Luis‟s car and defendant
were involved in a drive-by shooting, and defendant was present at three separate
shootings, including one on Chesapeake and one on 28th Street. Defendant denied any
role or knowledge. “[Detective]: Well, here‟s the deal, you want to sit here and act like
you had nothing to do with it, fine. That‟s fine. But you know who‟s in here in jail?
Your dad. Your dad, your brother, your cousin. All because of you. [¶] [Defendant]:
Because of me? [¶] [Detective]: That‟s right. Because you brought us to this. This
investigation brought us to you and you brought us to them and now they‟re all here. [¶]
[Defendant]: Because of me? [¶] [Detective]: Because of you. So you should just be
honest with us now and tell us what the deal is. What happened? Maybe there‟s an
explanation. Maybe there‟s something that you can tell us: this is what happened. [¶]
[Defendant]: That‟s crazy. [¶] [Detective]: What‟s the deal? [Defendant]: It because -
- you all over here because of me? [Detective]: Everybody is here because of you. [¶]
[Defendant]: My cousin, my dad, and everybody is here because of me? [Detective]:
Yes. Is that what you want? [Defendant]: No. [¶] [Detective]: Well, why don‟t you be
honest then?”
Defendant denied knowledge of the 28th Street shooting. However, in connection
with the Chesapeake shooting, he stated he and Toker were driving through “the
Jungles,”2 looking for P Stones gang members, but when they did not find any, defendant
was dropped off at McDonald‟s. While there, he received a telephone call from Toker,
who told him Toker had “caught somebody.”
The detective told defendant, “I think you‟re being honest. I mean, at least
partially honest. You‟re kind of taking yourself out of the shooting and saying it was
2 The Jungles was the name of the territory of the P Stone gang. Defendant was a
member of a rival gang.
3
somebody else. I think you need to be completely honest for it to help you. Otherwise,
you know - - .” Defendant denied Luis was involved in gang activities with him, denied
knowing who fired the shots, and stated he and his brother never drove Luis‟s car.
“[Detective]: Well, I think if you want to be completely honest, you should tell us
everything now. Because if we find out something later on, then it‟s going to be - - it‟s
going to seem like you‟re just lying about everything. [¶] [Defendant]: That‟s all I got
to say. On everything.”
The detective told him to tell the truth. “[J]ust tell the truth is what‟s going to help
you. The truth shall set you free. It‟s true.” Defendant continued to insist he was
dropped off before the shooting. Defendant denied he was known as “Malo” but
acknowledged the nickname when the police told him they knew that was his nickname.
Defendant then admitted his role, as follows. The detective stated the police knew
defendant was in the car when the shooting occurred. “[Detective]: Look, we know that
you were in the car. If you weren‟t the shooter, [well] that‟s fine. Tell us the truth. But
if you were the shooter, tell us the truth too. But I know you were in the car. We know
that. [¶] [Defendant]: Yeah. I was inside the car. [¶] [Detective]: But - - I know you
were in the car during the shooting. That‟s why we want information. What happened?
[¶] [A second detective]: Maybe there‟s a good reason for what happened, you know, a
lot of people that walk around that hood are on patrol. A lot of people walk around have
guns too. Who knows.” Defendant replied, “All right,” and admitted he and his
companions were driving in the Jungle looking for enemies and he was the driver. When
they saw a man getting out of a car, Toker asked the man where he was from and shot the
man three times. Defendant insisted his brother and cousin had nothing to do with it.
Trial Court’s Ruling on Motion to Suppress Involuntary Confession
On June 29, 2012, the trial court denied defendant‟s motion to suppress the
confession as involuntary. The court ruled the detective‟s statement to defendant—that
the father, brother, and cousin were all in jail because of defendant so defendant should
4
just be honest and tell the police what happened—did not overcome defendant‟s will.
“And it seems to me that from even the stipulation, the brother and the father were
arrested for independent offenses for which there was probable cause for them to be
arrested. That is, the two bricks of marijuana in the backpack of the brother and guns in
the possession of a prohibited person who had a domestic violence prior conviction. [¶] .
. . [¶] . . . [D]efendant‟s relatives would not have been arrested for those particular
offenses [had the police not been in the home executing a search warrant for evidence of
the drive-by shooting]. [¶] So what the officer says in the statement is true, but he
doesn‟t say that the family members aren‟t guilty of those other crimes; he just kind of
says, „well, it is because of you that they are here.‟ But I don‟t see that that is coercive.
[¶] He doesn‟t say, „well, we are going to charge them if you don‟t tell us the truth‟ or
„we are going to release them if you do tell us the truth.‟ He doesn‟t say any of that. [¶]
He just refers to the fact that basically that it is the activity concerning the defendant that
led the police to arrest the brother and the father. [¶] And without any further evidence, I
don‟t see that this statement should be suppressed on that basis as being involuntary.”
The recording and a transcript of the recording were admitted in evidence at trial.3
DISCUSSION
Defendant contends admission of the interview violated due process, because his
statements were coerced by an implied promise of leniency for his family members if he
confessed. We disagree with the contention.
3 The victim testified at trial that defendant shot him four times from the back seat
of the car, with one bullet lodging in the victim‟s hip. Defendant presented an alibi
defense.
5
Standard of Review
“„In ruling on a motion to suppress, the trial court finds the historical facts, then
determines whether the applicable rule of law has been violated. “We review the court‟s
resolution of the factual inquiry under the deferential substantial-evidence standard. The
ruling on whether the applicable law applies to the facts is a mixed question of law and
fact that is subject to independent review. [Citation.]” (People v. Saunders (2006) 38
Cal.4th 1129, 1134[].)‟ ([People v.] Hernandez [(2008)] 45 Cal.4th [295,] 298-299.)”
(People v. Greenwood (2010) 189 Cal.App.4th 742, 745-746.)
Voluntariness Under Due Process
“An involuntary confession . . . is inadmissible under the due process clauses of
both the Fourteenth Amendment [citation] and article I, sections 7 and 15 [of the
California Constitution] [citations].” (People v. Benson (1990) 52 Cal. 3d 754, 778.) “If
a suspect‟s statements had been obtained by „techniques and methods offensive to due
process,‟ [citation], or under circumstances in which the suspect clearly had no
opportunity to exercise „a free and unconstrained will,‟ [citation], the statements [are
inadmissible in evidence].” (Or. v. Elstad (1985) 470 U.S. 298, 304.)
“„In general, a confession is considered voluntary “if the accused‟s decision to
speak is entirely „self-motivated‟ [citation], i.e., if he freely and voluntarily chooses to
speak without „any form of compulsion or promise of reward. . . .‟ [Citation.]”
[Citation.] However, where a person in authority makes an express or clearly implied
promise of leniency or advantage for the accused which is a motivating cause of the
decision to confess, the confession is involuntary and inadmissible as a matter of law.‟
[Citation.] „A confession is “obtained” by a promise within the proscription of both the
federal and state due process guaranties if and only if inducement and statement are
linked, as it were, by “proximate” causation. . . . The requisite causal connection
between promise and confession must be more than “but for”: causation-in-fact is
6
insufficient.‟ [Citation.] „This rule raises two separate questions: was a promise of
leniency either expressly made or implied, and if so, did that promise motivate the subject
to speak?‟ [Citation.] To answer these questions „“an examination must be made of „all
the surrounding circumstances—both the characteristics of the accused and the details of
the interrogation.‟”‟ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 985-986.)
“[M]erely advising a suspect that it would be better to tell the truth, when
unaccompanied by either a threat or a promise, does not render a confession involuntary.
[Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 600.) “„[T]he ultimate issue of
“voluntariness” is a legal question.‟ [Citations.]” (Bobby v. Dixon (2011) __ U.S. __
[132 S.Ct. 26, 30, 181 L.Ed.2d 328].)
The Confession Was Voluntary
Defendant contends Detective Flores‟s statement—that, since defendant was
responsible for his family members being in jail and he did not want them there,
defendant should be honest now—was coercive because it implied his family would be
given leniency if defendant confessed. Defendant is incorrect. As the trial court noted,
the detective did not say, “„we are going to charge them if you don‟t tell us the truth,‟ or
„we are going to release them if you do tell us the truth.‟” We agree with the trial court,
as the import of the detective‟s statement was that after all the trouble defendant had
caused his family, he should now be honest about his role. Moreover, the record of the
suppression hearing contains no evidence defendant understood he could help his family
if he confessed. He did not subsequently refer to this exchange or try to confirm the
meaning of the detective‟s words. When he confessed he was the driver, he said nothing
indicating he expected or had been promised leniency for his family. Further, the
detective continued during the interview to urge defendant to tell the truth but did not
again refer to the arrests. Finally, defendant responded to the detective‟s statement with a
denial he was in the car when the drive-by shooting occurred. He did not confess his role
as the driver until much later in the interview, after he was caught lying about his gang
7
moniker and after being told he was not being fully honest, his story made no sense, and
his story was contradicted by other evidence. Thus, the detective‟s words were neither
coercive nor the motivating cause of defendant‟s confession.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
O‟NEILL, J.*
* Judge of the Ventura County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
8 | 01-03-2023 | 07-16-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646181/ | 9 So.3d 582 (2007)
WILLIE SANKEY
v.
STATE.
No. CR-06-0354.
Court of Criminal Appeals of Alabama.
April 20, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2239111/ | 574 N.E.2d 143 (1991)
214 Ill. App. 3d 637
158 Ill. Dec. 349
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Robert DOTSON, Defendant-Appellant.
No. 1-87-1038.
Appellate Court of Illinois, First District, Second Division.
May 21, 1991.
*145 Randolph N. Stone, Public Defender of Cook County, Chicago (Douglas Uhlinger, Alison Edwards, of counsel), for defendant-appellant.
Cecil A. Partee, State's Atty. of Cook County, Chicago (Renee Goldfarb, Paul Gliatta, of counsel), for plaintiff-appellee.
Justice DiVITO delivered the opinion of the court:
A jury found defendant Robert Dotson guilty of murder and unlawful use of weapons. He was sentenced on the murder count to 40 years in the penitentiary. He appeals, asserting that reversal is necessary because (1) he was not proven guilty of murder and unlawful use of weapons beyond a reasonable doubt; (2) an incriminating statement was obtained from him in violation of his sixth amendment right to counsel; (3) he was deprived of a fair trial by the State's improper final argument; and (4) the trial court abused its discretion in sentencing him to 40 years' imprisonment.
At trial, the following evidence was presented. At approximately 1:50 a.m. on March 14, 1985, Chicago police officer John Kinnavy responded to a call directing him to the scene of a shooting at 140 North Wood in the Henry Horner housing projects. Upon arrival, he found the body of Fred Poe lying on the floor in the lobby area, across from the mailboxes. Kinnavy found no guns, shells, or other evidence in the area, nor could he locate any witnesses. It was stipulated that the medical examiner would testify that Poe had sustained two *146 through-and-through gunshot wounds which entered his body from the back. The bullet which caused his death had perforated his lung.
Jeffrey Johnson testified that he and Terry Latham were with Poe when Poe was shot. They had entered the hallway of the building by the front entrance to drink beer and smoke marijuana. Johnson heard a back door open and took cover. He saw a head peek out from the back door. When Latham told the person to come out and identify himself, there was no response. Poe said "Big Five" and the person responded "Fuck Big Five" and began shooting. As the shooter and a second man emerged, Latham ran out another door, and Poe ran in the same direction. Johnson ran out the front door and went home. When he learned what had happened to Poe, he went to the hospital and spoke with police.
Johnson explained that "Big Five" referred to the Vice Lords or the Stones street gangs. Poe was a member of the Stones at the time of the shooting; Johnson was a member of the Vice Lords. Though he initially testified that he was not a member at the time of the shooting, he later asserted that he left the gang because he had been shot at and his "partner" Poe had been killed in this incident. The Vice Lords and Stones controlled or dominated the building in which Poe was shot.
Johnson could not see the faces of the two men who emerged from behind the door during the shooting. He did see that the shooter wore a baseball cap and was 5'8" or 5'9" tall. He did not see defendant during the shooting. Two days before the shooting, he had witnessed a bare-hands, boxing-like fight between Poe and defendant. At the end of the fight, defendant left and Poe spoke to a policeman who had arrived.
Tyrone Jackson was another State's witness. He knew defendant, but was not a friend of his. He considered Fred Poe to be a friend and regarded Jeffrey Johnson as "like family." On March 14, 1985 at approximately 1:30 a.m., he was at home, but left to visit his girlfriend Norma Jean who lived three blocks from him at 140 North Wood. When he was about 20 feet from the building, he heard five gunshots coming from inside the building. Jackson continued toward the door and tried to pull it open but could not do so. He then pulled the door open with both hands and a man known as "Little Black Kenny" fell out. Jackson knew Little Black Kenny but was not a friend of his. Little Black Kenny was a member of the Disciples street gang, as was defendant.
When Little Black Kenny fell out of the door, he said, "Get the fuck out of here," and ran off across the parking lot. Jackson then walked straight ahead and came upon a second closed door. He opened the door and could hear someone moaning and mumbling. At this point, Jackson observed a person lying in the corner, but could not tell who it was. When he came closer, he realized that it was Fred Poe. Poe's chest was full of blood; he was bleeding from his wrist; and his eyes were big.
At this point, Jackson heard a noise and turned around. Michael Charles, a person he knew to be related to defendant, pointed a gun at his face. As Michael Charles "clicked" the gun, defendant, whose street name Jackson knew to be "Bay," said "Shoots (sic) the motherfucker. Let's get out of here." Michael Charles squeezed the trigger five times, but the gun did not fire. Defendant and Michael Charles then ran out a back door, different from the one Jackson had entered.
Jackson then knocked on the doors of the first-floor apartments in an attempt to get help, but no one answered. Although he knew many people in the building, he did not seek help on any other floor. He then exited through the back of the building. He saw no one, but heard noises. He ran home and went to sleep. The next morning, Jackson told his mother what he had seen and then went to speak to Officer William Freeman of the Chicago police department. That evening, he identified defendant and Michael Charles in a lineup.
Officer Freeman testified that Jackson told him that he knew who had killed Fred *147 Poe, naming Robert Dotson, Michael Dotson, and Kennedy Blount, also called Black Kenny. Jackson did not tell him that Robert Dotson had said "shoot the motherfucker."
Also testifying concerning conversations with Jackson were Officer Charles Toussas, Detective John Thomas, and Assistant State's Attorney David King. King's written synopsis of what Jackson told him did not include the instruction to shoot. According to the synopsis, Jackson told him that defendant appeared at the door after the gun misfired, and the two men then left. Detective Thomas could not recall if Jackson told him that defendant had told Michael to shoot him and no such statement was in his report. Only Officer Toussas testified to Jackson having told him about defendant's statement, but Toussas neither wrote that statement down nor did he ever tell anyone else about it until trial. Jackson testified that he had related this statement to the authorities, specifically naming Officer Freeman, Officer Toussas, Assistant State's Attorney King, and the "detectives."
Officer Charles Toussas testified that on March 14, 1985 he arrested defendant in the 1900 block of west Washington after he saw defendant hand a revolver to a second person, who placed it in an open mailbox. The gun was recovered, as was a quantity of .32 caliber ammunition found on defendant. These items were introduced into evidence although none of them were linked to the shooting.
The first arrest of defendant resulted only in a charge of unlawful use of a weapon against him. On March 19, 1985, after his release on bond, Toussas asked Kennedy Blount to call defendant's home while, with Blount's permission, Toussas listened on a second phone. A woman answered and Blount asked for defendant, who then came on the line. Blount stated, "What's up? They got me down in the police station for killing Freddie." Defendant replied, "Don't say nothing. Don't tell `em nothing. They can hold you two, three days, and then they got to let you go. They got no witnesses." Defendant also stated "Don't tell them anything about what we did." Following the phone call, Toussas went to the 1700 block of north Francisco and placed defendant under arrest for the murder of Fred Poe.
Norma Jean Jones, identified by Tyrone Jackson as his girlfriend at the time of the shooting, testified for defendant and directly contradicted Jackson's account of having witnessed the aftermath of the shooting. She testified that on the night in question, Jackson was in her apartment on the 17th floor of the 140 North Wood building. In the early morning hours while watching television, she heard five shots coming from the front of the building. Jackson wanted to go down but she would not allow him to do so. She also testified that her sister Arlene had been Jackson's girl friend.
Arlene Jones testified that she had been Jackson's girl friend and was with him at Norma Jean's apartment until about 11 p.m. on the night of the shooting. He took her home and told her he was returning to Norma Jean's apartment. The next afternoon, he told her that he had been at Norma Jean's when Poe was shot and that Norma Jean would not let him out the door.
Both sisters admitted that a defense investigator's report of what they had told him contained two statements contradicting aspects of their trial testimony. The written statement which Norma Jean signed stated that the shots woke her up. The statement Arlene signed contained a crossed-out portion stating that on the 14th, Jackson had told her he knew who had done the shooting. Arlene testified that she had crossed out that portion because it was not true. The statement, however, also said that Jackson told her he was at Norma Jean's and she would not let him out. This portion of the statement was not crossed out.
The defense investigator, Carlton Williams, testified that he spoke to these two women without taking notes. He prepared the statements later and was mistaken when he attributed to them the two statements they repudiated at trial. When he later showed the statement to Arlene *148 she crossed out the erroneous statement and inserted the corrected paragraph.
The jury returned guilty verdicts for murder and unlawful use of weapons. The trial court denied defendant's motion for a new trial and sentenced him to 40 years on the murder conviction. No sentence was imposed on the weapons charge because the trial judge ruled that it merged with the murder conviction. Defendant appeals from the judgment.
I.
Defendant initially contends that the State failed to prove him guilty of murder and unlawful use of weapons beyond a reasonable doubt. The State maintains that the evidence which was presented at trial provided ample support for defendant's murder conviction. The State further argues that because no judgment or sentence was entered on the unlawful use of weapons charge, that portion of the conviction is not appealable.
The standard to be applied by a reviewing court considering a challenge to the sufficiency of the evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 131 Ill. Dec. 78, 538 N.E.2d 453.
A person is legally accountable for the actions of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid, such other person in the planning or commission of the offense. Ill. Rev.Stat.1985, ch. 38, par. 5-2(c).
To be accountable for the acts of another, one must have a specific intent to promote or facilitate the commission of a crime. (People v. Ramirez (1968), 93 Ill. App. 2d 404, 236 N.E.2d 284.) However, words of agreement need not be adduced at trial. The jury may infer an agreement from the conduct of the accused in attaching himself to a group which combines to act in circumstances showing a common design to do an unlawful act to which all assent. (People v. Bolden (1978), 59 Ill. App. 3d 441, 16 Ill. Dec. 791, 375 N.E.2d 898.) Bolden is analagous to the case at bar. In that case, the court stated that while there was no evidence as to who actually wounded the victim, there was sufficient evidence from which the jury could believe that as a member of the group, defendant lent aid and assistance. Bolden, 59 Ill.App.3d at 450, 16 Ill. Dec. 791, 375 N.E.2d 898.
A similar situation is presented in the instant case, where defendant was observed with his brother Michael Charles and cousin Blount at the scene. Furthermore, his statement of "Shoots (sic) the motherfucker. Let's get out of here," is clearly indicative of aid and solicitation. Also noteworthy is that defendant was present at the scene of the crime, was free to leave the area or seek aid from others, but did nothing to disassociate himself from the occurrence. (People v. Reed (1982), 104 Ill.App.3d 331, 60 Ill. Dec. 80, 432 N.E.2d 979.) It is the jury's function to draw conclusions based on the evidence and to decide whether there is a reasonable doubt as to defendant's guilt. (Young, 128 Ill.2d. 1, 131 Ill. Dec. 78, 538 N.E.2d 453.) In applying the appropriate standard, we cannot say that the jury could not properly determine that the essential elements of murder had been proven beyond a reasonable doubt.
Concerning the unlawful use of weapons charge, the State's position regarding appealability is correct. There is no final judgment in a criminal case until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be entertained. (People v. Flores (1989), 128 Ill. 2d 66, 131 Ill. Dec. 106, 538 N.E.2d 481.) The trial judge explicitly stated that the weapons charge would merge with the murder charge and that no sentence would be entered on it. Thus, there is no appealable judgment with respect to that charge.
*149 II.
Defendant's next contention is that he was denied a fair trial when the State introduced an incriminating statement allegedly obtained from him in violation of his sixth amendment right to counsel. Specifically, defendant refers to the telephone call made by Kennedy Blount while Officer Toussas listened on a second phone. The State argues that defendant has waived this issue because he failed to allege it with adequate specificity in his post-trial motion. Although the State is correct that defendant has not challenged the telephone conversation specifically on sixth amendment right to counsel grounds, we shall consider the issue to determine whether plain error exists. 134 Ill.2d R. 615(a).
Defendant argues that when he was charged with unlawful use of weapons, his sixth amendment right to counsel attached. In felony cases, the sixth amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated. (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.) In Scott v. Illinois (1979), 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383, the United States Supreme Court adopted an actual imprisonment test to determine whether a defendant's sixth amendment right to counsel exists in misdemeanor cases. In People v. Lynn (1984), 102 Ill. 2d 267, 80 Ill. Dec. 48, 464 N.E.2d 1031, our supreme court stated that an indigent defendant's right to appointed counsel is not absolute when he is charged with a misdemeanor.
Nevertheless, defendant argues that his sixth amendment right to counsel had attached with regard to the unlawful use of weapons charge and that that offense was so closely related to the murder charge that the right extended to any questioning about the murder. Indeed, the Illinois Supreme Court has held that the sixth amendment rights of one who has been formally charged with an offense extend to other offenses which are closely related to the charged offense and for which defendant is subsequently formally accused. People v. Clankie (1988), 124 Ill. 2d 456, 125 Ill. Dec. 290, 530 N.E.2d 448.
However, defendant's argument must be rejected for either of two reasons: (1) he has not established any sixth amendment right to counsel for the misdemeanor weapons charge; and (2) assuming arguendo that he had a right to counsel for that charge, a close relationship between that charge and the murder charge has not been established.
In Clankie, defendant had already been indicted for two burglaries of a home when the State surreptitiously tape recorded his statements in which he implicated himself in a later burglary of the same home. The court, in applying the rationale of the United States Supreme Court in Maine v. Moulton (1985), 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481, found that these offenses were so closely related that the right to counsel extended to the later charge. (Clankie, 124 Ill.2d at 463, 125 Ill. Dec. 290, 530 N.E.2d 448.) In the instant case, no such relationship exists. Defendant was arrested for unlawful use of weapons on March 14, 1985. The call placed by Kennedy Blount was made on March 19, 1985. No weapon or ammunition was ever recovered from the scene of the shooting. Thus, the two offenses in the instant case lack the close relationship necessary for the Clankie analysis to apply.
Defendant also relies upon People v. Hoskins (1988), 168 Ill.App.3d 904, 119 Ill. Dec. 612, 523 N.E.2d 80, for authority that the two offenses are so closely related that the sixth amendment right to counsel renders his statement inadmissible. His reliance on Hoskins is misplaced, however. In that case, the court found that the two offenses arose out of the same underlying situation; defendant confessed to murder after he had been formally charged with aggravated battery of the same victim, who subsequently died. There is no evidence in the case at bar that the two offenses arose out of the same underlying offense, and thus, Hoskins is inapplicable.
Although defendant insists that application of Maine v. Moulton (1985), 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481, renders his statement inadmissible, his interpretation of that case is incorrect. The evil *150 which the United States Supreme Court sought to avoid in Moulton was the use of a defendant's incriminating statement against him for the offense with which he had been charged and for which sixth amendment rights had attached. The Court specifically held, however, that statements regarding other crimes were not rendered inadmissible simply because sixth amendment rights had attached to other charges. In the instant case, when the call was placed, defendant had been charged with unlawful use of weapons, not with murder. Defendant's contention that any questioning about the murder was prohibited is contrary to Moulton.
In support of his argument, defendant points out that the two charges were tried together. Though that is true, it is unrelated to the question of whether the offenses were sufficiently related for sixth amendment purposes. We conclude that the two offenses were not so closely related that any sixth amendment right which may have existed as to the weapon charge extended to the murder charge.
III.
Defendant next contends that he was deprived of a fair trial when the State allegedly made a prejudicial and improper final argument.
A prosecutor has wide latitude in closing argument, and the trial court's determination of the propriety of that argument will not be disturbed absent a clear abuse of discretion or substantial prejudice to the defendant. Where allegedly improper comments do not constitute a material factor in the conviction, or where they are of such minor character that prejudice to the defendant is not their probable result, the verdict will not be disturbed on appeal. People v. Neumann (1986), 148 Ill.App.3d 362, 373-74, 101 Ill. Dec. 899, 499 N.E.2d 487.
Defendant argues that the State repeatedly misstated and distorted the evidence. Specifically, he contends that the prosecution misstated the evidence concerning the fight which occurred on March 12, 1985 between Fred Poe and defendant. He argues that the State, in the absence of any evidence, repeatedly told the jury that Poe had won the fight, thus providing a motive for defendant to kill him. The prosecutor has a right to comment on the evidence and to draw any legitimate inferences, even if the inferences may be to the detriment of the defendant. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 20 Ill. Dec. 14, 379 N.E.2d 847.) The prosecutor's comments about the fight were within the bounds of permissible inference.
Defendant also alleges as error that the prosecution impermissibly attacked him as a "punk" and an "animal," referred to defense counsel as "desperate," and said that Tyrone Jackson had been called "everything from scum to shit." A prosecutor's reference to a defense as desperate has not been found to be plain error. (People v. Husted (1981), 97 Ill.App.3d 160, 52 Ill. Dec. 753, 422 N.E.2d 962.) Though we decry the use of invective, especially the use of a word such as "shit" when it was not part of the evidence, we do not believe that the verdict would have been different if these comments were not made.
The next instance in which defendant alleges that the People misstated the evidence concerns Tyrone Jackson's testimony that as Michael Dotson held him at gunpoint, defendant stated "Shoots (sic) the motherfucker. Let's get out of here." Defendant contends that the State misstated the evidence when it argued,
"`Kill the motherfucker, too, and let us go'. What does that show you, ladies and gentlemen? Kill the motherfucker, too. Does that show you they knew a little bit about who killed Freddy Poe?" (Emphasis added.)
The State contends that defendant has waived this assertion of error because, not only did he fail to allege it in the post-trial motion, he also failed to object to the comments during closing argument. Though the quoted argument does distort defendant's statement, we do not believe it rises to the level of plain error. We note, moreover, that the jury was instructed by the *151 trial court to base its verdict only upon the evidence. We have considered defendant's other allegations of error concerning the State's closing argument and find them without merit.
IV.
Defendant's final contention is that the trial court abused its discretion in sentencing defendant to 40 years in the penitentiary. The state maintains that the trial court in no way abused its discretion where the sentence was properly based on the circumstances of the crime and the factors in aggravation and mitigation.
The trial court is normally the proper forum in which a suitable sentence is to be determined, and the trial judge's decisions in regard to sentencing are entitled to great deference and weight. Absent an abuse of discretion by the trial court a sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 11 Ill. Dec. 274, 368 N.E.2d 882.) The reviewing court will find an abuse of discretion "only if the judgment of the trial court is manifestly unjust or palpably erroneous." (People v. Anderson (1986), 112 Ill. 2d 39, 46, 96 Ill. Dec. 58, 490 N.E.2d 1263.) In the instant case, it cannot be said that the judgment of the trial court was either manifestly unjust or palpably erroneous.
The trial judge based his sentence on the nature and circumstances of the offense. He expressed concern that this was a gang-related murder and stated that "a sentence that is much more than the minimum is necessary to deter such conduct which is a blight on society and in particular to the project buildings of this city." The trial judge took into consideration not only defendant's role in Poe's murder, but also the fact that defendant encouraged his brother to kill a witness, Tyrone Jackson. In rejecting the State's requested sentence of life imprisonment, the judge considered that defendant was 17 years of age at the time of the offense and that he lacked substantial criminal background.
Defendant's reliance on People v. Steffens (1985), 131 Ill.App.3d 141, 86 Ill. Dec. 392, 475 N.E.2d 606, is misplaced. In Steffens, the defendant was a juvenile at the time of the offense and had only a prior juvenile adjudication for burglary. Here, defendant was 17 years old and had a prior juvenile adjudication for unlawful use of weapons. We find no abuse of discretion in the trial court's sentence.
Accordingly, the judgment of the circuit court of Cook County is affirmed.
AFFIRMED.
SCARIANO, P.J., and HARTMAN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567930/ | 10 So. 3d 1154 (2009)
Mary S. CONRAD, Appellant,
v.
Anne R. YOUNG, Nancy G. Mendel, Edward C. Mondell, Jr., Terry T. Mondell, Harding W. Willinger, Richard Power, Maria Power, Nita S. Fogg, Elesbath I. Gillet, Gregory L. Wilson, Lisa C. Wilson, Beatrice Tollman, Frances G. Scaiffe, Shirley Prudden, Horton R. Prudden, Jr., James D. Prudden, Jeffrey P. Prudden, Salomon J. Dayan and Frank L. Chopin, Appellees.
No. 4D07-2441.
District Court of Appeal of Florida, Fourth District.
May 27, 2009.
Rehearing Denied July 9, 2009.
*1155 Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellant.
Roy E. Fitzgerald, Alan B. Rose and Stefanie R. Shelley of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for appellees.
TAYLOR, J.
This appeal concerns the enforceability of a fifty-foot beach access easement for residents of Via del Lago in the Town of Palm Beach. Via del Lago is a private residential street which runs west from the Intracoastal Waterway to AIA. It is separated from the Atlantic Ocean by a strip of land east of AIA. The easement allows the Via del Lago residents access across this land to the beach. Appellant, Mary S. Conrad, is the current owner of property burdened by the easement. She appeals the final judgment upholding and enforcing appellees' easement.
Appellee Anne Young bought her property on Via del Lago in 1993. In 1999, she discovered from a survey that there were obstructions on a portion of her beach access easement. The servient property owners at the time, A. Allan Resnick and Mildred Resnick, had placed certain obstructions on the beach access easement, including a fence, barbecue grill, Jacuzzi, landscaping, and a paved driveway. When Via del Lago residents asked the Resnicks to remove the obstructions, they agreed as to some, but they were not willing to remove a three-foot bulkhead on the seawall. In February 2002, Young filed suit against the Resnicks, requesting declaratory judgment and injunctive relief as to her easement rights upon twenty-five feet of the north section of the Resnicks' property. She sought an injunction to prevent the Resnicks from obstructing or blocking any portion of the easement.
Young's property was originally owned by the Phipps, who conveyed title to Diana Kristavi in 1937. When the Phipps conveyed the land to Kristavi, they granted her and her heirs and assigns:
a right-of-way to the waters of the Atlantic Ocean fifty (50) feet in width over that portion of the beach lying east off the Ocean Boulevard and included within a line parallel to and ten feet north of the north line of the above private roadway[1] projected east, in a line parallel to and ten feet south of the south line of the above mentioned private roadway projected east.
In 1949, the Phipps conveyed a large parcel of land, including the Resnicks' property, to Bessemer Properties, Inc., "together with all the public and private easements, rights, privileges and hereditaments thereunto belonging or in anywise appertaining" and "subject to all public and private easements encumbering the same." Bessemer then conveyed the same property to Owen Roberts subject to:
an easement over, across, in and upon the north twenty-five feet thereof for access to the ocean and for uses incidental to ocean bathing for the use and benefit of the owners, occupants and inhabitants of the lands bounded by the Ocean Boulevard and Lake Worth on the east and west respectively, and on the north and south by lines 478.08 feet and 913.98 feet, respectively, south of the south line of Vita Serena aforesaid.
*1156 The conveyance to Roberts was also subject to a restrictive covenant "not to obstruct the use of the easement over the north twenty-five feet of the premises."
The Resnicks took title to Roberts' property in 1985. The deed stated that the conveyance was subject to "the easement reservation contained in the deed dated April 14, 1952 from Bessemer Properties, Incorporated, to Owen Roberts ..."
In sum, based upon deeds dating from 1937 and 1949, the Via del Lago residents were granted a fifty-foot easement. After the easement was granted, the servient estate was subdivided at the midline of the easement, such that twenty-five feet is on the north parcel and twenty-five feet on the south parcel. The easement covering the south parcel is the focus of this appeal.
After Young filed her complaint, the Resnicks sold the property to Conrad, who substituted as party defendant in the case. Conrad raised affirmative defenses of statute of limitations, laches, and estoppel. She also filed a counterclaim and third-party complaint against the other residents of Via del Lago and Frank L. Chopin, whose property adjacent to the north of Conrad's property was encumbered on the south by easement. She requested declaratory relief that the original Phipps easement and the Bessemer easement were unenforceable and that her improvements on the property did not interfere with or obstruct either easement.[2]
After the close of the evidence, the court denied Conrad's motion to amend her pleadings to assert a claim for adverse possession because the issue was not tried by consent, there was no showing that there had been seven years of adverse possession which was "continuous, adverse and exclusive of any right, the predecessors in title acknowledged the existence and validity of the easement, and the objecting parties would be prejudiced by such amendment."
The trial court also denied Conrad's motion for directed verdict on her statutory laches defense, stating in its final judgment that the "uncontroverted evidence before the court is that the easement owners first discovered the encroachment of the Easement on the Conrad property in 1999. The Easement Owners did not sit on those rights nor has there been any proof of the issue of reliance: accordingly, this action is not barred by the doctrine of laches."
The trial court's final judgment declared that the easement was valid. It stated that neither the Phipps nor the Bessemer deed was ambiguous and that the court therefore was only permitted to consider the plain language of the deeds to determine the location and width of the easement. The court further found that, as to equitable defenses, the equities lie against Conrad because she purchased the property with knowledge of the pending suit.
In the final judgment, after granting the third party defendants and Young declaratory relief, the trial court entered an injunction preventing Conrad and her successors in title from obstructing the use of the easement.
The court also ordered Conrad to remove the existing obstructions, including a *1157 three-foot bulkhead which had been added to a seawall.[3]
Conrad argues on appeal that the trial court erred in denying her motion for directed verdict on the statutory laches defense because neither Young nor the other Via del Lago residents brought suit for enforcement of their easement rights within five years of being put on notice of the obstructions. The limitations period for actions to enforce an easement is five years after discovery of its breach. § 95.11(2)(b), Fla. Stat. (2002). According to appellant, the testimony at trial showed that since 1985 her predecessors in title treated the southern twenty-five feet of the easement as their private property, enclosing it with a fence, hedge, driveway, seawall, and other obstructions, and that the easement holders always used the northern twenty-five feet of the easement for ocean access because of these obstructions. Hence, they abandoned their easement and failed to take action within five years.
Young and the third party defendants/easement holders argue that their cause of action did not accrue until they were prevented from using the easement by someone claiming adversely to their rights. They argue that the undisputed evidence in the record proves that the residents had continuous use of the easement and were never actually prevented from using the easement to reach the beach because of the encroachments. Testimony showed that when the 1999 survey revealed certain encroachments on a portion of the fifty-foot easementa fence, sea grapes, barbeque, Jacuzzi tub, pavers, light pole, and the seawallVia del Lago residents approached the Resnicks, who acknowledged the validity of the easement and agreed to remedy the situation by removing these obstructions, except for the seawall because of the expense. Indeed, Conrad, the successor servient owner, testified at trial that the easement was valid and that she did not intend to restrict or obstruct the use of the easement:
Q. So it is fair to say that you would like to be able to grant some or have some additional security of your property but you are not trying to obstruct the ability of the residents from using your property?
A. I don't think I've ever held the position that I would obstruct known owners of Via del Lago from crossing my property and going to use the beach. I have never held that position even though I have been advised that I could put into doubt their so called easement, whatever.
According to appellees, they were never barred from using their easement and the servient owners' use did not prevent them from using the easement. They contend they had continuous access to the beach, and thus the time limitation for statutory laches did not begin to run until they unsuccessfully sought to remove the Resnicks' encroachments from their easement after the 1999 survey.
When an appellate court reviews the trial court's denial of a motion for directed verdict, it must "view the evidence and all inferences in a light most favorable to the non-movant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant." Weinstein Design Group, Inc. v. *1158 Fielder, 884 So. 2d 990, 997 (Fla. 4th DCA 2004).
Under Florida law, the following must be commenced within five years:
A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(2)(a)2 and 713.23(1)(e).
§ 95.11(2)(b), Florida Statutes (2002). Moreover,
Laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter regardless of lack of knowledge by the person sought to be held liable that the person alleging liability would assert his or her rights and whether the person sought to be held liable is injured or prejudiced by the delay...
§ 95.11(6), Fla. Stat. (2002). The statutory laches provision applies to actions involving easements. See Carlton v. Germany Hammock Groves, 803 So. 2d 852, 856 (Fla. 4th DCA 2002).
As we explained in Carlton, "[a] cause of action for an easement accrues when an adverse party prevents use of the easement." 803 So.2d at 856 (citing Estate of Johnston v. TPE Hotels, Inc., 719 So. 2d 22, 26 (Fla. 5th DCA 1998)). Here, the undisputed evidence was that the Via del Lago residents were never denied the use of the easement and continuously had access to the beach. Under Florida law, the servient owner has the right to use the easement in common with the easement holders, and it is presumed that any such use of the easement is permissive. See Crigger v. Fla. Power Corp., 436 So. 2d 937, 948 (Fla. 5th DCA 1983). No cause of action accrues until such time as the servient owners' use is hostile or until the easement holders retract permission for the servient owners' use. Id.; Hollywood, Inc. v. Zinkil, 403 So. 2d 528, 535 (Fla. 4th DCA 1981). As noted in Estate of Johnston, wherein the plaintiff's claim was deemed timely, "there was no need for [the easement holder] to claim her right to use the easement until she was barred from its use by a party claiming adversely to her." 719 So.2d at 26.
Here, the record is devoid of any evidence that Conrad and the predecessor owners of her property intended to prevent Young and the other Via del Lago residents from using the easement or to deny them access by the obstruction. Rather, Conrad testified that the obstructions were placed on the property to provide additional privacy, aesthetics, security, and storm protection, without denying access to the easement holders. See, e.g., Bentz v. McDaniel, 872 So. 2d 978 (Fla. 5th DCA 2004) (holding that servient owner did not extinguish easement by adverse possession although he built bulkhead on river side of easement and planted a grapefruit tree and some shrubbery in the easement). Because there was no evidence in this case that the servient owners' use of the property was hostile or adverse to the easement owners until 1999, when the servient owners refused their request to remove certain encroachments, the trial court did not err in denying Conrad's motion for directed verdict on her statutory laches defense.
Conrad also argues on appeal that the trial court committed fundamental error in ordering her to lower her seawall and remove sea grapes within the easement. She submits that compliance with this portion of the injunctive relief in the final judgment would cause her to commit violations of local and state laws. In support, *1159 she requests that we take judicial notice of Rule 62B-33.005 of Florida's Administrative Code and the Department of Environmental Protection's guidelines governing sea grape trimming and sea turtles and guidelines for obtaining permits to construct in the beach and dune system.
Appellees object to our judicially noticing these matters and finding fundamental error based on Conrad's inability to comply with the order. They argue that these issues are being raised for the first time on appeal, and that no evidence or testimony was presented to the trial court regarding how these rules and guidelines apply to Conrad's property and what efforts, if any, Conrad has made to comply with the final judgment. We agree that, on this record, we cannot determine whether Conrad can legally comply with the order to lower her seawall and remove sea grapes, as such determination at this time would call for speculation as to whether she can obtain the necessary permits, waivers, or variances or successfully pursue administrative remedies. We are thus unable to find that the court's order constitutes fundamental error as contrary to the law.
Based on the foregoing, we affirm the judgment in all respects.
Affirmed.
WARNER and POLEN, JJ., concur.
NOTES
[1] Via del Lago is the roadway referred to in the deed.
[2] The third party defendants named in Conrad's counterclaim were seventeen individuals who could claim the same or similar easement rights over Conrad's property by virtue of owning property at Via del Lago. Conrad also named Frank L. Chopin as a third party defendant because he owned the property adjacent to the north of Conrad's property. Chopin stipulated to the existence and validity of the twenty-five-foot easement across the southern edge of his parcel, and he was accordingly dismissed from the case.
[3] According to appellees' brief, the parties agreed at trial that the only unresolved problem was the seawall. The resident/easement holders testified that they were not seeking removal of a six-foot sea grape that had grown on the southern twenty-five feet of the easement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567931/ | 170 F.2d 108 (1948)
JOHNSON et al.
v.
STEVENSON.
No. 12529.
United States Court of Appeals Fifth Circuit.
October 7, 1948.
Raymond Buck, of Fort Worth, Tex., Dallas Scarborough, of Abilene, Tex., B. D. Tarleton and Luther E. Jones, Jr., both of Corpus Christi, Tex., John H. Crooker, Sr., of Houston, Tex., Alvin J. Wirtz, John Cofer and Everett L. Looney, all of Austin, Tex., and James V. Allred, of Houston, Tex., for appellant Lyndon B. Johnson.
A. W. Moursund, of Johnson City, Tex., and Everett L. Looney, of Austin, Tex., for appellants Streigler and others.
T. R. James, of Fort Worth, Tex., Dan Moody, of Austin, Tex., C. C. Renfro, of Dallas, Tex., and Josh H. Groce, of San Antonio, Tex., for appellee.
Before HUTCHESON, Chief Judge, and SIBLEY and McCORD, Circuit Judges.
SIBLEY, Circuit Judge.
On September 15, 1948, Appellee Stevenson filed this suit in the district court against Appellant Johnson and others to *109 stop by injunction the certifying by the officers of the Democratic Party in Texas of the name of Johnson as the nominee of that party for United States Senator as a result of a Democratic primary election; to prevent his name as such being placed on the official ballots for the general election to be held November 2, 1948; and for a cancellation of such certification if made; and a declaration that Stevenson is the true nominee. The other defendants are the party officers who are charged with the duty of certifying; the Secretary of State to whom the certificate is addressed and who prepares the form of ballot; and the members of the election board of Tarrant County, who are alleged to be proper representatives of all the board members in the 253 other counties of the State who are too numerous to be brought before the Court. A restraining order was at once granted and a hearing set for a temporary injunction. At the hearing Johnson filed a motion to dismiss on various grounds, including these: that the relief sought is in essence a contest of the primary election and the Court has no jurisdiction to hear and determine such election contest; that the Court has no jurisdiction to determine the right and title to the Democratic nomination for United States Senator, and that such jurisdiction is expressly denied by 28 U.S.C.A. § 1344; that no deprivation of a right or privilege secured by the Constitution or laws of the United States is alleged, but only of a right to a party nomination under the election laws of the State of Texas, as to which there is no jurisdiction in the federal district court; and that there is no jurisdiction in equity to nullify a certificate of nomination duly made under the laws of Texas in favor of Johnson, who is a person qualified to hold the office, in order to substitute another as nominee. Johnson also filed under oath what he calls an opposition to the temporary injunction which takes issue with some of the factual allegations of the petition and proposes at a proper time and in a proper forum to show illegal votes in larger numbers which were counted for Stevenson than those Stevenson claims were fraudulently counted for Johnson. The other defendants filed motions to dismiss as to them and answers, but none of these has any real interest in the result or is charged with any personal misconduct, and they need not be further noticed. The motions to dismiss were overruled. Evidence was introduced by both Stevenson and Johnson tending to support their contentions of fact. The Court made no specific findings of fact, but held generally that the facts were with the plaintiff and granted a temporary injunction on September 22, 1948, "for the reason that there was evidence of fraud in the official returns from certain election officials in Jim Wells, Zapata, and possibly other counties, to the State Democratic Executive Committee, without which there would have been a change in the official certification by the officers of the State Convention as to who was the Democratic nominee for the office of United States Senator." The injunction forbids the certifying and reporting to the election boards of all the counties that Johnson is the Democratic nominee, and forbids the boards to prepare and distribute ballots carrying Johnson's name for use in the election. The appeal is from the grant of this temporary injunction.
We are of opinion that whatever may be the truth as to the fraudulent returns from certain precincts in the named counties, and whatever may be the truth as to illegal votes elsewhere which are claimed as more than an offset, the subject matter is not one to be taken cognizance of by the district court for the exercise of equitable relief. The object to be attained is precisely that of a contest of an election, the evidence so far heard is all appropriate to such a contest, as is that proposed to be taken by one or more masters which the record shows are to be appointed to go to all of the counties in which illegal returns or voting has been or may by amendment be alleged to have occurred. The Texas Statutes afford machinery for such a contest as part of their provision for both party nominations and final elections. It is urged that there is not time to review a statewide primary by such a contest before the general election comes on. But if there were no provision at all for contesting the result of a primary it would not give a district court jurisdiction *110 which it lacks. The Constitution, Art. I, Sec. 5, after all makes each House of Congress the final judge of the qualifications, elections, and returns of their respective members; and if a State, as Texas has done, makes nominations by a primary to be a part of its election machinery, and if, as is alleged here, Democratic nomination insures election, no reason occurs to us why this constitutionally provided judgment of the election should not reach back to the nomination; and we judicially know that such Congressional investigations have included primaries.
The jurisdiction of the district court is limited to those cases within Art. III, Sec. 2 of the Constitution over which an Act of Congress has given it jurisdiction. The petition refers us to Sec. 1343 of Title 28 of the United States Code as recently revised and enacted, 28 U.S.C.A. § 1343, entitled "Civil Rights", and to Sec. 43 of Title 8 of the U.S.C.A.Code in the chapter on Civil Rights entitled "Civil Action for deprivation of rights". Both sections use equivalent language, that of Sec. 43 being: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." The redress here chosen is a suit in equity. The right claimed is the Democratic nomination as United States Senator in a primary held under the laws of Texas, which is alleged to be a right of property exceeding $3,000 in value because Democratic nomination insures final election and the emoluments of the office far exceed that sum or value. We may assume without deciding that this nomination is the equivalent of election and that the right to the election is really in controversy. We then face Sec. 1344 of Title 28 entitled "Election Disputes", which does give the district court jurisdiction over such disputes if the sole question arises out of the denial of the right to vote on account of race, color or previous condition of servitude, and limits the jurisdiction to the determination of the right to vote. No such question is raised in this case; but if it were, the section expressly excludes disputes concerning the office of "elector of President or Vice President, United States Senator, Representative in or delegate to Congress, or member of a State legislature." This is a dispute about the office of United States Senator. In this section there is a manifest purpose to keep the judicial department from intervening, even by the usually available law writ of quo warranto, in the election of these high functionaries in the executive and legislative departments. According to the common law there was no right at all to contest in a court any public election, because they belong to the political branch of the government and are beyond the control of judicial power, and the only remedy in the nature of an election contest was a quo warranto or an information in that nature. 29 C.J.S., Elections, § 246. This explains the words in Sec. 1344 "to recover possession of any office", which would be the object of a quo warranto. The aim of the section is to enable the district court to interfere in elections only to the limited extent it prescribes and to exclude it altogether from interfering with the election of a Senator or with the constitutional right of the Senate to judge of his election in all its steps or stages.
But if Sec. 1344 has no application because a party nomination is not an office, and if Sec. 1343 is to be applied, we get no further. Its words, as set forth in Sec. 43 of Title 8, were before the Supreme Court in Giles v. Harris, 189 U.S. 475, 23 S. Ct. 639, 47 L. Ed. 909, which was a case concerning the right of Negroes to register for voting in Alabama, which was brought by the excluded voters themselves. Their standing to complain under this statute had just previously been established, as it has been recently confirmed by Smith v. Alluright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987, 151 A.L.R. 1110, in the Supreme Court, and by Chapman v. King, 5 Cir., 154 F.2d 460, in this Court. But Justice Holmes for the Court said, 189 U.S. page 486, 23 S.Ct. page 642: "It seems to us impossible *111 to grant the equitable relief which is asked. It will be observed, in the first place, that the language of § 1979 (now Section 43 of Title 8) does not extend the sphere of equitable jurisdiction in respect of what shall be held an appropriate subject-matter for that kind of relief. * * * They allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding. The traditional limits of proceedings in equity have not embraced a remedy for political wrongs. Green v. Mills [4 Cir.], 69 F. 852, 853, 30 L.R.A. 90." To Green v. Mills may be added a host of authorities: 18 Am.Jur., Elections, Sec. 272; 30 C.J.S., Equity, § 66 and cases cited. Blackman v. Stone, D.C., 17 F. Supp. 102, by three judges, contains a review of the federal cases. Turman v. Duckworth, D.C., 68 F. Supp. 744, is also a recent case by three judges. Appeals in both cases were dismissed in the Supreme Court.
But Stevenson does not have the standing of a voter who is being discriminated against contrary to the Constitution and whose right is clearly secured by it. He is here claiming a political nomination by a primary under laws of Texas. As was remarked in United States v. Gradwell, 243 U.S. 476, 488, 489, 37 S. Ct. 407, 61 L. Ed. 857, in applying the similar provisions of the Criminal Statute then Sec. 19 of the Criminal Code, now Sec. 241 of Title 18 U.S.C.A., to a nominating primary, there is no applicable provision of the federal Constitution or statutes which secures the rights of a candidate for nomination; and the distinction between the personal right of the voter and the general right of a candidate to a pure final election was made in United States v. Bathgate, 246 U.S. 220, 226, 227, 38 S. Ct. 269, 62 L. Ed. 676. We have found no case holding that one claiming a nomination in a primary held under state law, though it be a part of the state election machinery, has any right secured by the laws of the United States. We have here no question of votes excluded contrary to the Constitution, but only of frauds and illegalities under the Texas law. The persons alleged to have perpetrated the frauds are not even parties. We are of opinion, both on the words of Sec. 1343 of Title 28 and under the broad policy indicated in Sec. 1344, that there is here no case for interference by a federal court of equity in a senatorial primary; that the injunction ought not to have been granted; and that the motion to dismiss ought now to be sustained. We can order dismissal on this interlocutory appeal. Smith v. Vulcan Iron Works, 165 U.S. 518, 17 S.C. 407, 41 L. Ed. 810, and cases following it.
The order of injunction is set aside and the cause is remanded with direction to dismiss the petition.
Reversed with direction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567936/ | 10 So. 3d 638 (2009)
FEDOR
v.
STATE.
No. 2D09-1636.
District Court of Appeal of Florida, Second District.
May 21, 2009.
Decision without published opinion Mandamus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567951/ | 10 So. 3d 634 (2009)
CARTER
v.
WAL-MART STORES, INC.
No. 1D08-2576.
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/1568245/ | 139 F.2d 266 (1943)
COMMONWEALTH OF KENTUCKY ex rel. UNEMPLOYMENT COMPENSATION COMMISSION
v.
FARMERS BANK & TRUST CO. OF HENDERSON, KY.
No. 9564.
Circuit Court of Appeals, Sixth Circuit.
December 7, 1943.
H. Kelly Clore and Edward W. Pflueger, both of Frankfort, Ky. (Elwood Rosenbaum, O. B. Hannah, H. Kelly Clore, and Edw. W. Pflueger, all of Frankfort, Ky., on the brief), for appellant.
S. O. Heilbronner, of Henderson, Ky., for appellee.
Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.
McALLISTER, Circuit Judge.
The Kentucky Unemployment Compensation Commission filed its claim against a bankrupt estate for past-due unemployment contributions and penalty for nonpayment provided by state law. The referee denied allowance of the penalty, and his determination was sustained by the District Court. On appeal, the sole question is whether the claim, including the penalty, should have been allowed against the bankrupt estate. In the District Court, the Unemployment Compensation Commission contended: (1) that the penalty provided by state law was, in fact, interest; (2) that if the charge were considered a penalty within the intendment, it should be allowed against the bankrupt estate as a lien, created by statutory provisions of the State of Kentucky.
The District Court held that the charge was a penalty. The Legislature *267 used the term "penalty" to describe the charge; and the unpaid contributions were subject to the charge at the rate of one per cent per month, or fraction thereof, from and after the due date of the unemployment contribution, until payment was received by the Commission. The use of the term "penalty" in the statute, and the fact that the entire percentage of one per cent per month was charged for any fraction of a month, clearly indicates that the charge was a penalty, rather than interest. See People of State of New York v. Jersawit, 263 U.S. 493, 44 S. Ct. 167, 68 L. Ed. 405. With regard to the contention that the charge should be allowed against the bankrupt estate as a lien, the District Court made no disposition.
At the time the claim was filed, the statutes of Kentucky provided: "A lien on a parity with tax liens is hereby created in favor of the Commission upon all property both personal and real or rights thereto owned by any subject employer and used by him in connection with his trade, occupation, profession or business, from whom contributions, interest or penalties are or may hereafter become due. Such lien shall be for a sum equal to the amount at any time due from each subject employer to the Commission on account of contributions, interest and penalties thereon. Such lien shall commence from the time such contributions, interest or penalties become, or shall hereafter become, due. No action to enforce a lien under this section shall be brought after two years from the date of filing of such lien." Acts 1940, c. 193, Baldwin's Kentucky Statutes, 1941 Supp. 4748g-8.
In 1942, the foregoing section was amended to provide: Kentucky Revised Statutes, Sec. 341.310. "(1) A lien on a parity with tax liens is hereby created in favor of the Commission upon all property of any subject employer from whom contributions, interest or penalties are or may hereafter become due. This lien shall be for a sum equal to the amount at any time due from each subject employer to the commission on account of contributions, interest and penalties thereon. The lien shall commence from such time as the contributions, interest or penalties become due. No action to enforce a lien under this section shall be brought after two years after the date of filing the lien."
Section 57, sub. j of the Bankruptcy Act, 11 U.S.C.A. 93, sub. j provides: "Debts owing to the United States or any State or subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued thereon according to law."
While penalties, therefore, are not allowed in claims against bankrupt estates, the past due contributions and penalties, in this case, were supported by the lien provided by state statute. Statutory liens for taxes and debts owing to the United States or any state or subdivision thereof, created or recognized by the laws of the United States or any state, are valid against the trustee in bankruptcy. Title 11 U.S.C.A. § 107, sub. b. "It may be conceded that section 57j of the Bankruptcy Act (11 U.S.C.A. § 93(j), precludes the `allowance' of a claim for penalties, but * * * adjudication in bankruptcy does not affect a valid and existing lien, consequently where a lien exists to support a penalty at the time of adjudication, section 57j does not come into operation." In re Knox-Powell-Stockton Co., 9 Cir., 100 F.2d 979, 983.
The claim of appellant for the unpaid contributions and penalty, which by virtue of statute, became a lien, should have been allowed as filed. The order of the District Court is vacated and the case remanded for further proceedings in accordance with this opinion.
SIMONS, Circuit Judge (dissenting).
I agree with the opinion of the majority that the exaction imposed by Kentucky law for failure to pay past-due unemployment contributions constitutes a penalty. I am unable to agree that § 57, sub. j of the Bankruptcy Act, 11 U.S.C.A. § 93, sub. j, does not come into operation because the Bankruptcy Act preserves liens valid under state law, and this with all due respect for the views of my associates and the opinion of the Circuit Court of Appeals for the Ninth Circuit in the Knox-Powell-Stockton Company case.
A lien is a charge upon property for the payment or discharge of a debt. It *268 is therefore dependent upon the existence, the amount of, and the provability of the debt. If the debt has been paid or otherwise expunged as for fraud or by set-off, the lien is extinguished. An inchoate lien does not ripen into security until a debt comes into existence. In the case of private liens, it may be impermissible to prove a debt because of the Statute of Frauds or the running of the Statute of Limitations.
Section 57, sub. j, provides that debts owing to the United States or any state or subdivision thereof, as a penalty or forfeiture, shall not be allowed except for the amount of pecuniary loss sustained. I am unable to see how a lien, however valid it may be under state law, will breathe life into an unprovable debt in the face of a provision which deals expressly with debts owing to any state or subdivision. The two provisions of the Bankruptcy Act are not irreconcilable. The tax lien is preserved to the extent that it does not include a penalty and the tax debt, other than the amount of the penalty, is provable. To the extent that the debt is not provable in bankruptcy, the lien ceases for all practical purposes to exist. Nor is this taking of property in contravention of the Fifth Amendment because the bankruptcy power is paramount in respect to the debts of adjudicated insolvents. Billings v. United States, 232 U.S. 261, 282, 34 S. Ct. 421, 58 L. Ed. 596; McCray v. United States, 195 U.S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1 Ann.Cas. 561. I think the judgment should be affirmed.
Another consideration contributes to this view. It has long been held that the grant of the taxing power to the Federal Government is wholly inconsistent with the concept that the states can, by legislation, interfere with assessments or set up a limitation of time within which they must be collected. United States v. Snyder, 149 U.S. 210, 13 S. Ct. 846, 37 L. Ed. 705. So with other constitutional grants of power which includes the bankruptcy power. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S. Ct. 573. This is on the ground, among others, that the granted powers are to be exercised with uniformity throughout the states. It seems to me, therefore, wholly incongruous that a penalty must be disallowed as a claim against a bankrupt estate in one state and a similar penalty allowed in another, merely because of a statutory lien in one case and not the other, or that one penalty may be allowed, and another disallowed in the same state against the same bankrupt. Section 57, sub. j, deals specifically with penalties for nonpayment of state taxes, and so it seems likewise incongruous and not within the intention of the Congress, to permit states wholly to nullify it by providing statutory liens for all penalties. As was said in Paul v. United States, 6 Cir., 127 F.2d 64, 66, affirmed Detroit Savings Bank v. United States, 317 U.S. 329, 63 S. Ct. 297, "Provisions of the Michigan statute governing liens for property taxes are not here applicable; and if they were, being in derogation of federal law, would not control." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568266/ | 139 F.2d 571 (1943)
HARRIS
v.
TWENTIETH CENTURY-FOX FILM CORPORATION.
No. 72.
Circuit Court of Appeals, Second Circuit.
November 10, 1943.
Dwight, Harris, Koegel & Caskey, of New York City (Harry J. McIntyre, of New York City, of counsel), for appellant.
O'Brien, Driscoll & Raftery, of New York City (Milton M. Rosenbloom, of New York City, of counsel), for respondent.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
Plaintiff alleged in her complaint that she had been engaged as a writer for what is known as the California Studio of the defendant; that while so engaged, she had *572 written certain material on the life of Brigham Young; that she later contracted to sell that material to the Studio; that thereafter she worked at the Studio on a screen treatment of Brigham Young; that the Studio produced a motion picture concerning Brigham Young and did not give the plaintiff proper "screen credit" in that motion picture for her literary work. She asked that the motion picture be enjoined, and in support of a motion for temporary injunction submitted affidavits in which she sought to support her claim by certain conversations and correspondence with officials and employees of defendant Studio. The defendant submitted counter-affidavits of five of those persons flatly contradicting plaintiff's affidavits. The motion for temporary injunction was denied by the District Court which, in its opinion, stated that "the affidavits are indeed very conflicting." Plaintiff then amended her complaint so as to make it an action at law for damages in the amount of $50,000. Defendant then, on notice to plaintiff, took the depositions in New York of the plaintiff in five separate hearings. Defendant subsequently took the depositions in California of five of its employees including those with whom plaintiff claimed to have had conversations or communications. Thereafter defendant moved for summary judgment under Rule 56, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, on the ground that the facts disclosed in the pleadings and in the testimony of the witnesses whose depositions had been taken, showed that no triable issue existed. All the depositions were incorporated in defendant's moving papers but none is included in the record before us. The District Court granted the motion and dismissed the complaint. The judgment refers to all the depositions, but the opinion of the District Court refers solely to the plaintiff's depositions, and there is nothing elsewhere in the record to indicate that the contents of the other depositions were in any way needed in connection with the motion for summary judgment, or in any manner affected the decision of the District Court. The judgment stated that the complaint should be dismissed with costs, and, as originally entered, included, among other things, the stenographers' fees incurred in connection with the deposition of the plaintiff, the fees of the Commissioner who was present at the taking of those depositions and the stenographers' and attorneys' fees for the five depositions taken in California. The Clerk of the District Court refused to allow any part of the expenses incurred in the taking of plaintiff's deposition and or any expenses incurred in the taking of three of the five California depositions. The defendant moved the District Court for a review of these rulings of the clerk. That court allowed as costs the stenographers' fees in connection with the plaintiff's depositions, but, by an order, disallowed the Commissioner's fee therefor, and the stenographers' fees and statutory attorneys' fees in connection with three of the five depositions taken in California. From that order defendant appeals.
Rule 54(d) provides: "Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs * * *". The "unless" clause clearly gives the trial court discretion in allowing costs except as a statute or some other Rule otherwise provides.[1] Under Rule 30(a) and (b), a party desiring to take a deposition may give notice and the court, upon motion of the other party, may make an order that the deposition shall not be taken. Since plaintiff made no such motion, this case must be considered as if the court had directed the depositions to be taken. Rule 30(c) requires a Commissioner to be present at the taking of depositions.[2] However, nothing *573 in those rules refers to costs. Rule 80(a) provides that a court or master may direct that evidence be taken stenographically, and that the stenographer's fees "may be taxed ultimately as costs, in the discretion of the court." Thus Rule 80(a) confirms the court's discretion as to stenographers' fees where the evidence is taken in court; a fortiori, the court has such discretion as to such fees in connection with depositions. The trial court is better acquainted with the proceedings than we can be.[3] There is here no such showing of abuse of discretion as to justify our over-ruling its order, except as to one item. 28 U.S.C.A. § 572, provides that there shall be allowed $2.50 for "each deposition taken and admitted in evidence in a cause." That statutory provision is expressly excepted from the operation of Rule 54(d).[4] There may perhaps be some question whether, on this record, it can be said that the depositions taken in California were "admitted in evidence," but we think that the recital in the summary judgment order is sufficient to show that they were. We therefore hold that the District Court erred in disallowing such statutory fees in connection with three of the California depositions.
Reversed in part.
NOTES
[1] That Rule appears to have adopted, for all suits covered by it, the previous federal practice in equity, according to which the trial court had wide discretion in fixing costs, a discretion not reviewable unless manifestly abused (especially where the appeal related solely to the costs). Newton v. Consolidated Gas Co., 265 U.S. 78, 82-84, 44 S. Ct. 481, 68 L. Ed. 909; Minar Inc., v. Hammett, 60 App.D.C. 291, 53 F.2d 149; In re Michigan Cent. R. Co., 6 Cir., 124 F. 727, 732; Reconstruction Finance Corp. v. J. G. Menihan Corp., 2 Cir., 111 F.2d 940; Gold Dust Corp. v. Hoffenberg, 2 Cir., 87 F.2d 451, 453. Moore, 3 Federal Practice (1938) 3160, says that Ex parte Peterson, 253 U.S. 300, 40 S. Ct. 543, 64 L. Ed. 919, as to costs in actions at common law has been superseded by Rule 54(d).
[2] Accordingly, the trial court could, in its discretion, tax the Commissioner's fees as costs but, we think, in some modest sum not to exceed $10 for each day's hearings.
[3] Newton v. Consolidated Gas Co., supra.
[4] Cf. Newton v. Consolidated Gas Co., supra; Reconstruction Finance Corp. v. J. G. Menihan Corp., 2 Cir., 111 F.2d 940, 941. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568269/ | 139 F.2d 995 (1944)
VANDERLINDEN
v.
LORENTZEN et al.
No. 160.
Circuit Court of Appeals, Second Circuit.
January 12, 1944.
Edgar R. Kraetzer, and Haight, Griffin, Deming & Gardner, all of New York City (J. Ward O'Neill, of New York City, of counsel), for Lorentzen.
Patrick J. McCann, of Brooklyn, N. Y., and E. C. Sherwood, of New York City, for Turner & Blanchard, Inc.
Abraham M. Fisch, of New York City, for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
*996 L. HAND, Circuit Judge.
This is an appeal by both defendants from a judgment for the plaintiff for personal injuries suffered by the breaking of a ship's ladder (Jacob's ladder) leading over the side of the ship to the deck of a lighter alongside. The jury found both defendants liable, but awarded indemnity in favor of one of them, the stevedore, against the other, the shipowner. In substance, the appeal is therefore only by the shipowner, because, although the stevedore also appeals from the judgment, it needs no more for its protection than to preserve that part of the judgment which awarded indemnity against the shipowner. The cause was tried to a jury which brought in a "verdict of $40,000 for the plaintiff against both defendants. We recommend indemnification for Turner & Blanchard" (the stevedore). The shipowner raises upon this appeal (1) the absence of evidence to support a finding of negligence against him; (2) that, even if he could properly be held negligent, the provision for indemnity was wrong; and (3) that in any event, the judge was wrong in allowing the jury to consider evidence of a custom for stevedores not to examine ladders furnished by the ship. The stevedore appeals on the ground that the evidence did not support a finding of negligence against it.
From the evidence the jury might have found the following facts. Vanderlinden, the plaintiff, was a "checker" in the employ of one, Jansen, whom the stevedore had employed to check the cargo which was to be discharged from a lighter of the Delaware, Lackawanna & Western Railroad and laden upon Lorentzen's ship, alongside of which the lighter had been made fast. Jansen billed the stevedore for the checking service, and the stevedore passed on the charge to Lorentzen. When Vanderlinden went to work on the lighter, he crossed the deck of the ship from the pier where she lay, and started down a Jacob's ladder which the stevedore's foreman, Ristuccia, and some fellow employees had just put over the ship's side to reach to the deck of the lighter. This ladder belonged to the ship, but the ropes were thoroughly rotten and altogether unfitted to bear a man's weight. As soon as Vanderlinden had gone down a step or two, it broke and he fell to the deck of the lighter, suffering extremely severe injuries. Ristuccia had asked Wathne, the ship's second officer, for a Jacob's ladder to put over the ship's rail, and was told that he would find one on the boat deck. Ristuccia said that Wathne spoke of only one ladder; Wathne, that he told Ristuccia that there were four. Wathne also testified that in fact there were four, three of which were sound, but the fourth unfit, and that this one had been rolled up and put aside under the water tank. Ristuccia said that he saw only one. If there were four, the ladder that he took was the rotten one, and concededly Wathne did not tell him to avoid any one of the four. While Ristuccia was fastening one end of the ladder to the ship's rail, and as he let it unroll over the side, he did not notice its condition; nor did he examine it after it was in place. His excuse was that there was a custom for stevedores to rely upon the ladders furnished by the ship, and not to examine them.
The judge charged the jury that it was the stevedore's duty to furnish the plaintiff with a "safe mode of access to work" and that "the measure" of it was the "foreseeability of danger, and what a reasonable man * * * would do." He also charged them that the shipowner was also liable unless, assuming that there were four ladders he had put the unfit one reasonably beyond access by Ristuccia. If there was only one, they might find the shipowner negligent without more. In specification of the stevedore's liability he said that if "an ordinary look at the coiled ladder * * * would have put a reasonable man on notice that the ladder was defective," that would charge the stevedore. But if the "defect would not be apparent on an ordinary looking at it," they were to "consider the evidence of custom * * * that stevedores always accept the ladder as they get it * * * and merely * * * drop it overside." Such an acceptance might not be reasonable; the custom was not final; in the end they must decide what degree of inspection was reasonable care. On this charge, as we have said, the jury found both defendants guilty of negligence, and the first question, before we come to the question of indemnity, is whether the verdict was right pro tanto.
We hold that both defendants were under a duty to use reasonable care to see that the plaintiff had a safe approach to the deck of the lighter: i. e., that the ladder was safe. Vanderlinden was a "business visitor" of both, because he went upon the lighter in the interest *997 of both, and neither could devolve its duty to him upon the other, however much they might agree upon its final incidence as between themselves, or whether the law would do so without agreement. We have just so decided as to the ship in Grillo v. Royal Norwegian Government, 2 Cir., 139 F.2d 237, to which we refer without further discussion. That the stevedore owed him a similar duty is beyond question; indeed as we understand it, it does not deny the duty, but insists that it discharged it, when it used the ship's ladder. For this it relies upon testimony that from casual inspection "ordinary looking" the defect did not appear, and that custom justified it in not making any further examination. The jury found it liable, and under the charge they must have done so, either because a casual inspection would have detected the defect, or because, if it would not, the supposed custom either did not exist, or would not protect the stevedore, if it did. In view of the grant of indemnity in the same verdict we must assume that they found that the custom did exist, but that as between the stevedore and the plaintiff it was no protection. In that they were clearly right; a custom exonerating the stevedore from all need of examining a ladder, down which its employees or "business visitors" must descend, would be so "unreasonable" as to be unlawful without more. The jury might disregard it altogether; indeed the judge could probably have done so himself. Prima facie therefore the defendants were joint tortfeasors, since each failed to inspect the ladder as his duty demanded. As such, under well-settled law, there could be no indemnity between them (Union Stock Yards Company of Omaha v. Chicago, B. & Q. R. R., 196 U.S. 217, 25 S. Ct. 226, 49 L. Ed. 453, 2 Ann.Cas. 525), although now in New York contribution is allowed by statute. N. Y. Civil Practice Act, § 211-a.
There are however exceptions to this doctrine, even when the negligence of the tortfeasor entitled to indemnity is personal and not imputed, as an agent's negligence is to his principal, or as in situations like Washington Gas Light Company v. District of Columbia, 161 U.S. 316, 16 S. Ct. 564, 40 L. Ed. 712. The tortfeasor may for instance contract for indemnity. John Wanamaker, New York, Inc. v. Otis Elevator Company, 228 N.Y. 192, 126 N.E. 718. The Restatement of Restitution, § 93, lays it down that, if the buyer of a chattel uses it in reliance upon the seller's care in furnishing goods proper for the intended use, the seller must indemnify him, provided that the reliance is "justifiable"; and while that may not much advance the solution, at least it serves to put the question. We may assume that the evidence at bar was enough to justify a verdict that stevedores in New York Harbor seek and receive from the ships on which they work, such Jacob's ladders as they need, and that they get them rolled up, as the ladder here in question was rolled up. On the other hand the evidence was not enough indeed there was none whatever that shipowners knew that the stevedores fastened one end of the ladder to the ship, let it unroll over the side, and used it without any examination whatever. If that was the custom of stevedores, it was a unilateral custom, which did not charge the shipowner; indeed, it was so wantonly reckless that only the plainest possible evidence should charge the shipowner with notice of it. He might rightly assume that the stevedore would make at least some inspection, and some inspection was indeed inevitable, for the stevedore could not use the ladder at all, without at least looking over the side to see whether it was long enough to reach the lighter, or so long as to double on the deck. That much scrutiny would alone at once have disclosed the unfitness of the ladder at bar, whose ropes had in places been frayed so much as to be hardly more than strings. The doctrine that there may not be indemnity between joint tortfeasors is certainly desirable in a case like this, where the stevedore's fault was so much the greater of the two. It would be shocking to hold that the stevedore's "reliance" on the ladder furnished was "justifiable", and so to throw the whole loss on much the less reprehensible of the two wrongdoers. The provision in the judgment for indemnity must be reversed.
Judgment in favor of the plaintiff against both defendants affirmed.
Judgment of indemnity in favor of the stevedore against the shipowner reversed and the cross-complaint dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646186/ | 9 So.3d 589 (2007)
EX PARTE LARRY GENE THOMAS.
No. CR-06-1180.
Court of Criminal Appeals of Alabama.
May 4, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/667423/ | 21 F.3d 427NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Alma DANIELS, Widow of Floyd Daniels, Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UnitedStates Department of Labor, Respondent.
No. 93-4275.
United States Court of Appeals, Sixth Circuit.
March 29, 1994.
Before: RYAN and NORRIS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
ORDER
1
Alma Daniels, pro se, petitions for review of the Benefits Review Board's (BRB) decision denying her request for survivor's benefits under the Black Lung Benefits Act. 30 U.S.C. Secs. 901-945. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Floyd Daniels died in May of 1979. On April 12, 1988, Ms. Daniels filed her claim for benefits, as the surviving divorced spouse of Mr. Daniels. The claim was denied on August 26, 1988. After Ms. Daniels submitted further evidence, the District Director, construing the additional evidence as a request for modification pursuant to 20 C.F.R. Sec. 725.310, again denied the claim, on March 23, 1990. The claim was referred to the Office of Administrative Law Judges for a formal hearing, which was held on October 23, 1991. Thereafter, the Administrative Law Judge (ALJ) issued a Decision and Order Denying Benefits. The ALJ first found that Ms. Daniels was not an "eligible survivor" within the meaning of the Act, because she was not "dependent" on the miner for support at the time of his death. 20 C.F.R. Secs. 725.212 and 725.217. The ALJ also found that even if Ms. Daniels were an eligible survivor, she had not shown that the miner died from pneumoconiosis or complications due to pneumoconiosis, as required to be entitled to benefits. 20 C.F.R. Sec. 718.205.
3
On appeal, the BRB affirmed the ALJ's determination that Ms. Daniels had not established that the miner's cause of death was related to pneumoconiosis or that the disease contributed to his death in any way. On appeal to this court, Ms. Daniels argues that there are "several things" that were not considered by the ALJ, specifically that the autopsy was incomplete and that Mr. Daniels had a hard time breathing before his death. Ms. Daniels also states that the miner was "never tested for Black Lung," that some of the employers for which Daniels worked did not report his earnings so that his income would appear on a Social Security earnings statement, and that the ALJ simply failed to take into account all of her statements made at the hearing. Ms. Daniels also requests the appointment of counsel and for leave to proceed without paying the filing fees.
4
This court has recognized that it must affirm the BRB's decision if the Board has not committed any legal error or exceeded its statutory scope of review of the ALJ's factual determinations. Director, OWCP v. Quarto Mining Co., 901 F.2d 532, 536 (6th Cir.1990). This court must review the decision below only to decide whether it is supported by substantial evidence and is in accordance with the applicable law. Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir.1985) (per curiam). Substantial evidence is that relevant evidence which a reasonable mind would accept as adequate to support a conclusion. Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 488 (6th Cir.1985).
5
Because Ms. Daniels filed her claim after January 1, 1982, the ALJ and BRB properly analyzed her claim under 20 C.F.R. Sec. 718.1(a) and Sec. 718.205. This section requires a survivor to establish that the miner's death was due to pneumoconiosis. The regulations provide that death will be considered "due to" pneumoconiosis where: 1) competent medical evidence establishes that the miner's death was due to pneumoconiosis; 2) pneumoconiosis was a substantially contributing cause or factor leading to the miner's death, or death was caused by complications of pneumoconiosis; or 3) the presumption set forth in Sec. 718.304 is applicable.
6
Because no complicated pneumoconiosis was described in the record, the presumption provided under Sec. 718.304 is inapplicable to Ms. Daniels's claim. With regard to the criteria for determining whether a miner's death occurred as a result of pneumoconiosis under Sec. 718.205(c), Ms. Daniels need not prove that the miner died from pneumoconiosis "in and of itself," but must show only that pneumoconiosis was a "substantially contributing cause or factor leading to the miner's death...." 20 C.F.R. Sec. 718.205(c)(2); Adams v. Director, OWCP, 886 F.2d 818, 824 n. 7 (6th Cir.1989). This court has recently interpreted this regulatory language to encompass situations where pneumoconiosis, even if not a proximate cause of death, actually hastens a miner's death. Brown v. Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir.1993).
7
In support of her claim, Ms. Daniels submitted medical evidence consisting of a hospital summary report by the miner's treating physician, Dr. Ronald J. Smith, and an autopsy report prepared by Dr. D.W. Peterson. The autopsy report shows that the principal cause of death was edema of the lungs, with the additional diagnosis of: 1) cardiomegaly; 2) Duodeno peritoneal cavity fistula with Candida species demonstrated in fistula tract; 3) advanced micronodular cirrhosis of liver; 4) status post repair of perforated duodenal ulcer and gastrojejunostomy; and 5) mild chronic pancreatitis, inactive. The hospital summary is consistent with the findings in the autopsy report, with no mention of respiratory difficulty aside from edema of the lungs. There is no other evidence in the record to establish that the miner's death was caused by or related in any way to pneumoconiosis. Thus, the findings by the ALJ are supported by substantial evidence and, on this basis, the ALJ properly denied benefits.
8
Ms. Daniels and her daughter testified that they were later informed by a doctor at the Veterans Administration Hospital where the miner died that the autopsy report was not accurate. However, this fact is not supported by any medical opinion or documentation of record. Such lay testimony, alone, cannot support entitlement to benefits unless no other relevant medical evidence exists. Coleman v. Director, OWCP, 829 F.2d 3, 5 (6th Cir.1987) (per curiam). Other medical evidence does exist in this case in the form of the autopsy report. Lastly, Ms. Daniels's request for leave to proceed without the payment of filing fees has been rendered moot by this court's waiver of the fees.
9
Accordingly, the claimant's request for the appointment of counsel is denied, her petition for review is denied, and the BRB's decision affirming the denial of benefits is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/8304517/ | DeWTTT, J.
On April 26, 1927, E. P. Stubblefield, postmaster at Morrison, upon solicitation by one W. C. Brown, agent for the Mutual Benefit Health •& Accident Association, made application to said Association for a policy of insurance against injuries from accident and disability from disease. The policy was issued on May 5, 1927, and delivered to said applicant.- He paid the premiums thereon, or tendered them, so- that there is no issue as to lapse for non-payment. The issues presented upon this record are:
(1) 'Whether or not the policy was void ab initio for misrepresentation material +o the risk made in the application;
(2) Whether or not the defendant is estopped to rely upon any misrepresentation contained in the application;
(3) Whether or not the illness of the insured from and after December 1, 1928, was a “confining illness” within the meaning of the contract. ' '
The bill in this cause was filed on March 28, 1929, by the insured, E. P. Stubblefield, to recover benefits under said policy because on or about October 25, 1928, he became ill from what was diagnosed by his physicians as a cancer of the intestines and was totally disabled, and confined continuously within doors and required the services of physicians from that time. The Insurance Company filed an answer and cross-bill, denying liability on the ground that complainant knowingly made a false representation material to the risk in his written application for the insurance. It alleged, and it is undisputed, that on or about January 29, 1929, it notified the insured that it would treat the policy as void, and tendered to him the amount of the premiums paid from the date of issuance of the policy. It prayed that the policy be declared void.
To this cross-bill the complainant filed an answer embodying a plea of estoppel because of knowledge on the part of the agent of the true facts and his misleading complainant into believing that the representations made by him related to matters, that were trivial and not material to the risk. -
Prior to the hearing and determination of this cause the complainant E. P. Stubblefield died and the cause was revived in the name of his widow as executrix of his will.
The Chancellor sustained the bill and dismissed the cross-bill. He rendered a decree in favor of the executrix against the Association for the sum of $763.25, as indemnity provided by the policy as follows: for partial disability and confining illness for the month of November, 1928, $50; for total disability and confining illness from December 1, 1928, until July 4,-1929, -at the rate of $100 per month, $710; for expense for hospital service, $3.25.
The application contained the following questions and answers:
*413. "13. Have you received medical or surgical advice or treatment or had any local or constitutional disease within the past five years? Answer to each— No.”
"18. Do you hereby apply to the Mutual Benefit Health and Accident Association for a policy to be based upon the foregoing statements of facts, and do you understand and agree that the falsity of any statement in this application shall bar the right to recover if such false statement is made with intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the Association, and, do you agree to notify the Association promptly of any change in your occupation, or if you take additional insurance? Yes.”
The policy provided for strict compliance on the'part of the insured and the beneficiary with all the provisions and agreements of the policy and the application, as a condition precedent to recovery, and for forfeiture of all right to indemnity for any failure in this respect. It further provided:
"No statement made by the applicant for insurance not included herein shall void the policy or be used in any legal proceeding hereunder. No agent has any authority to change policy or to waive of its provisions.”
In answer to an interrogatory as to what happened when the aforesaid question No. 13 in the application, was asked, the insured, E. P. Stubblefield testified:
"I told Mr. Brown that I had not lost a day’s work in twenty-five years on account of sickness,'but about two years before I took out the policy I had a spell with my liver and that I went to Dr. Price to get medicine for a torpid liver and I went back three or four times, but during this time I was doing my full work. Mr. Brown said that that made no difference as anybody was liable to these bilious attacks.”
He testified that other than this he had neither received treatment nor had any local or constitutional disease within the previous five years; and that he considered himself to be in sound health, having his normal weight. He further said that he had no intention of deceiving the Association; that Brown wrote the answers, and he signed the application with full knowledge of the negative answer to question 13, having confidence in what Brown had said to him. He stated that his statement to Brown was a complete disclosure of his previous trouble and treatment; and that there was no connection between the former illness and that from which he was then suffering. The former trouble arose in the year 1926. He stated that it was in.the side of his body, while the trouble then existing was "one big rising after another” in his abdomen.
The insured’s physician. Dr. Price, testified that in August, 1926, he made a careful examination of him and diagnosed his trouble *414as cholecystitis, an inflammatory condition of the gall bladder; that after treatment with medicine and use of proper diet, he considered him cured. He knew of no recurrence of this trouble. His patient gained twenty pounds, attaining his normal weight. The physician said that the intestinal cancer was not caused by the previous condition of the gall bladder, and that, so far as he knew, it would not lead to it. He said that he did not consider the previous trouble as serious; that it was a toxic condition requiring about three months of treatment “to get him back into good shape.” There is no evidence of any causal relation between the former and the latter troubles.
If the soliciting agent had written the statement which the applicant gave to him, the Association would have found, upon full investigation,, that the previous illness was not serious, but was a slight or temporary illness which left no detrimental effect upon the general health or constitution of the applicant. The statute, Shannon’s Code, sec. 3306, provides, that no misrepresentation “shall be deemed material or defeat or void the policy or prevent its'attaching, unless such misrepresentation (or warranty) is made with actual intent to deceive, or unless the.matter represented increase the risk of loss.”
This statute incorporates itself in every policy of insurance issued, and serves as an effectual bar' to the destruction of the rights of the insured, or the beneficiary, where innocent mistakes of fact which are not material to the-risk have been made. Insurance Co. v. Stallings, 110 Tenn., 1, 72 S. W., 960.
The representation which would avoid the policy must be false in the sense that it was made with intent to deceive and concealed matters which increased the risk of loss. Volunteer State Life Ins. Co. v. Richardson, 146 Tenn., 589, 244 S. W., 44, 26 A. L. R., 1270. We cannot see how the answer to question 13 in the application in question could be made with intent to deceive, when the applicant answered the question truthfully to the agent of the Association. The knowledge of the agent must be imputed to his principal. Hnder chapter 442 of the Acts of 1907 (being section 3275a2 of Shannon’s Annotated Code) such agent is regarded as the agent of the company, and not the agent of the insured, in all matters relating to' the application and the policy issued in consequence thereof.' Upon these principles the Association. cannot be heard to say that had it known the true facts it would not have issued the policy. We mighty go further and apply the rule that after the illness or death has .occurred it is for the court to say whether or not the alleged misrepresentation was of that character which would reasonably affect the insurer’s judgment as to the issuance of the policy. Volunteer State Life Ins. Co. v. Richardson, supra. But it is sufficient to say that the Association is clearly *415estopped to set up such a defense. Insurance Co. v. King, 137 Tenn., 686, 195 S. W., 585; Moak v. Continental Casualty Co., 4 Tenn. App., 287, and cases cited. The argument that no estoppel could arise in view of the knowledge of the applicant that the agent had written .an untrue answer is not sustainable because the applicant accepted in good faith the agent’s assurance that the question did not relate to such facts as the applicant had disclosed; and to allow the Association, under such circumstances, to avoid its contract, on account of the assurance which it, through its agent, gave to the applicant, would be to allow it to take advantage of its own wrong. Planters’ Ins. Co. v. Sorrels, 1 Baxt., 352; Hale v. Sovereign Camp, 143 Tenn., 555, 226 S. W., 1045. The applicant could thus rely on the agent’s determination of the materiality of the question and answer and the necessity of disclosure called for by the question. 5 Cooley’s Briefs on Insurance, p. 4123, and eases cited. In view of his good faith, the insured could not equitably be deprived of benefits upon the theory of his conscious participation in any fraud.
The Chancellor awarded the maximum benefit of one hundred dollars per month upon the conclusion that the insured was under “disability resulting from disease, which confines the insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.”
The policy also provided for a payment at the rate of $50 per month, and not exceeding one' month, for disability resulting from disease, “and which does, not confine the insured continuously within doors, but requires, regular medical attention; provided said disease necessitates total disability and total loss of time.’-’
My. Stubblefield was constantly under treatment, by physicians from the latter part of October, 1928, until his death. This treatment was given him at his home, at Nashville, at Chattanooga and at St. Louis, Missouri. From April 1, 1929, he was confined to his bed. About December 1, 1928, he employed another person to do his work as postmaster, and he was from that time unable to attend to the ordinary duties of his office, except that he spent about an hour every morning at his office and came back home and went to bed. During this hour at his office he did nothing except look over his books. He was physically unable to do any other kind of work. The appellant insists that the insured was entitled to in any event only $50 for non-confining illness for one month preceding April 1, 1929, $100 per month for the period from that date' to the date of death, and $3-25 for hospital expenses. It. is admitted that he was totally disabled from and after December 1, 1928, but insisted that his illness did not become a confining one so as to entitle him to the maximum benefit, until April 1, 1929.
*416A rule of liberal construction in favor of the insured and against the insurer has generally been applied in determining what, constitutes a continuous confinement to the house, in suits upon policies which did not provide different benefits where the insured were not confined continuously within doors. In such a case, where the insured was totally disabled and suffered total loss of time from the performance of his regular occupation, if he stepped occasionally into his yard, or visited his physician, or sat on his porch, or left his house for a short time for other purposes, he is not regarded as not confined to his house. Wilkes v. Insurance Co., 7 Tenn. App., 36; Insurance Co. v. Bradley, 6 Hig., 566; Insurance Co. v. Hawes, 42 L. R. A. (N. S.), 700, and note; Jennings v. Brotherhood, 44 Colo., 18 L. R. A. (N. S.), 109; Briel v. Insurance Co., 23 L. R. A. (N. S.), 359; 14 R. C. L., 1318.
However, a rule of literal construction has generally been applied where the policy provided other benefits for illness which did not confine the insured continuously within doors. The view is taken that under a liberal rule this provision would be meaningless. This court upheld this view in Bockman v. Mutual Health B. & A. Ass’n., 7 Tenn. App., 618, holding that the insured, a lawyer, was not entitled to the full benefits where the policy contained literally the same provisions as those now under interpretation, as he was able to. leave his room and go to the courthouse to try cases and to “stir around for the purpose of getting air and sunshine.” Of course, he was not totally disabled, but it was said: “The language of the policy now in question leaves no doubt that a different rate is to be paid when the insured was not confined to his room.” A leading case, and one quite analogous upon its facts, is Sheets v. The Farmers & Merchants Mutual Life & Casualty Association, 116 Kans., 356, 225 Pac. Rep., 929, in which the court said:
“As will be observed, the policy provides for two rates of insurance, one for disabling sickness by reason of which the insured is necessarily and continuously confined within the house, and another for such sickness which does not confine the insured within the house. . . . It is insisted by plaintiff that incapacity for work or business was the prime condition contemplated by the parties for which insurance was to be paid, and that confinement to the house was not a material consideration, ,but this construction ignores and would nullify the second clause of the contract. The policy is not one of indemnity for disability alone.' To recover the higher rate, the disabling sickness must be such as keeps the insured necessarily and continuously in the house. The parties plainly contracted for degrees of sickness and presumably premiums were assessed and paid on the basis of these degrees. ... . It was *417competent for the parties to stipulate that insurance should be paid according to the degrees of sickness which incapacitated the insured for work or business. They agreed that it would be measured by confinement to the house, and the court is not wárranted in ignoring or eliminating an ambiguous provision included by the parties in their contract. The entire contract should be considered together and effect given to every part of it, and the clause relating to non-confining sickness can be no' more ignored than those limiting the time for which insurance shall be paid. To1' do so would be to make a different contract than the parties made for themselves.”
"We must adhere to the terms of the contract. The illness of Mr. Stubblefield from October, 1928, until April 1, 1929, fell within the second category described in the policy; otherwise, that provision would be of no force or effect. The Association had the right to differentiate between “confining,” and “non-confining” illness in contracting to pay indemnity. It was not unreasonable to fix a higher rate of indemnity for a sickness so serious as to confine the insured totally to the house, than should be paid for an illness which disabled the insured from work or business, but did not prevent him from leaving the house and spending an hour each day at his office.
It results, therefore, that the amount which the complainant is entitled to recover of the defendant is $366.58 with interest from the date of the decree of the Chancery Court, and said decree is so modified and affirmed. A decree will be entered in this court for said sum and all costs in favor of the complainant against the defendant and the surety on its appeal bond.
Faw, P. J., and Crownover, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1568006/ | 10 So. 3d 643 (2009)
SHRUM
v.
STATE.
No. 5D08-3860.
District Court of Appeal of Florida, Fifth District.
May 19, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568023/ | 139 F.2d 1019 (1944)
HOUBIGANT, Inc., et al.
v.
FEDERAL TRADE COMMISSION.
No. 101.
Circuit Court of Appeals, Second Circuit.
January 27, 1944.
Mock & Blum, of New York City, for petitioners.
W. T. Kelley, Chief Counsel, Joseph J. Smith, Jr., Asst. Chief Counsel, and Donovan R. Divet, Sp. Atty., all of Washington, D. C., for respondent.
Before SWAN, CLARK, and FRANK, Circuit Judges.
PER CURIAM.
In March 1938 the Federal Trade Commission issued its complaint against the petitioners charging them with the use of unfair methods of competition in commerce in violation of section 5 of the Act of September 26, 1914, 15 U.S.C.A. § 45. After hearings the Commission on April 16, 1942, made findings of fact and issued its order requiring the petitioners to desist (1) from using upon their products the words "Paris" or "Paris, France" or other terms indicative of foreign origin, and (2) from using the terms "Houbigant", "Cheramy" or any other French or foreign words as trade names for toilet preparations compounded in the United States, without also stating that such products were compounded in the United States. The petitioners object only to (2) of the restraining order.
*1020 The contention that the Federal Food, Drug, and Cosmetic Act of June 25, 1938, 21 U.S.C.A. § 301 et seq., vested in the Federal Security Administration exclusive jurisdiction over the labeling of perfumes has been rejected by this court. Fresh Grown Preserve Corp. v. Federal Trade Comm., 2 Cir., 125 F.2d 917, 919; Justin Haynes & Co. v. Federal Trade Comm., 2 Cir., 105 F.2d 988, 989, certiorari denied 308 U.S. 616, 60 S. Ct. 261, 84 L. Ed. 515. The restraint which the Commission's order imposes is substantially the same as in other cases which we have approved. Establissements Rigaud v. Federal Trade Comm., 2 Cir., 125 F.2d 590, 591; Parfums Corday v. Federal Trade Comm., 2 Cir., 120 F.2d 808; Fioret Sales Co. v. Federal Trade Comm., 2 Cir., 100 F.2d 358.
The petitioners urge that if required to change their markings they should be given a period of at least two years in which to make the necessary adjustments. No application for a stay of enforcement of the order was made to the Commission. Whether this court has power to stay enforcement we need not now decide. See El Moro Cigar Co. v. Federal Trade Comm., 4 Cir., 107 F.2d 429, 432; cf. H. N. Heusner & Son v. Federal Trade Comm., 3 Cir., 106 F.2d 596, 598. Assuming that the power exists the record is barren of facts to justify its exercise.
The order is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568019/ | 139 F.2d 596 (1944)
KEITH
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 75.
Circuit Court of Appeals, Second Circuit.
January 5, 1944.
*597 Benjamin Mahler, of New York City, for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and John F. Costelloe, Sewall Key, Helen R. Carloss, and Carolyn E. Agger, Sp. Assts. to the Atty. Gen., for respondent Commissioner of Internal Revenue.
Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The taxpayer was the owner of two participating insurance policies in the Equitable Life Assurance Society. The dividends paid thereon could either be withdrawn or applied to the reduction of the premiums due. On or about August 4, 1939, the taxpayer owed the insurance company $18,844.33 which he had borrowed against the security of his policies. On that date he executed two applications for loans totalling $1,862.27 and the company applied these additional loans as follows:
Policy No. 2226602:
(a) Interest on outstanding
balance of petitioner's indebtedness
for period
March 1, 1939 to August 4,
1939 ............................... $ 257.04
(b) Prepaid interest on petitioner's
outstanding indebtedness
for period August 4,
1939 to March 1, 1940 .............. 367.09
Policy No. 2228280:
(c) Interest on outstanding
balance of petitioner's indebtedness
for period
March 1, 1939 to August 4,
1939 ............................... 226.20
(d) Prepaid interest on outstanding
indebtedness for
period August 4, 1939 to
March 1, 1940 ...................... 323.04
(e) Interest on balance of premium
due March 1, 1939 .................. 10.84
(f) Balance of premium due
March 1, 1939 ...................... 507.09
By check to taxpayer ............... 170.97
_________
$1,862.27
The taxpayer accordingly deducted the foregoing interest items aggregating $1,184.21 in his 1939 income tax return as interest "paid by deductions from loans". Both the Commissioner and the Tax Court disallowed the items on the ground that the taxpayer was on a cash basis and had not paid such interest during the taxable year. We think that the ruling of the Tax Court was right and should be affirmed.
This taxpayer gave nothing but a formal contract obligation in the place of his interest obligations. Such action on his part, like the giving of a note to a creditor in substitution for the latter's claim upon an open account, cannot be regarded as the equivalent of a payment in cash. This principle was recognized by the Supreme Court in its decision in Eckert v. Burnet, 283 U.S. 140, 51 S. Ct. 373, 75 L. Ed. 911, in which Justice Holmes wrote the opinion. Indeed, such was the effect of the holding of that court in Helvering v. Price, 309 U.S. 409, 60 S. Ct. 673, 84 L. Ed. 836, and the direct decision of the First Circuit in Hart v. Commissioner, 54 F.2d 848, which we approved in Jenkins v. Bitgood, 101 F.2d 17, 19, certiorari denied 307 U.S. 636, 59 S. Ct. 1033, 83 L. Ed. 1518. Cf. Massachusetts Mutual Life Ins. Co. v. United States, 288 U.S. 269, 53 S. Ct. 337, 77 L. Ed. 739; United States v. Mitchell, 271 U.S. 9, 46 S. Ct. 418, 70 L. Ed. 799. The situation might well have been different if the taxpayer had borrowed the $1,184.21 from a bank and had paid the interest due the insurance company with proceeds of the loan. The transaction here is like the case of a trader who has borrowed from his broker on the security of stock purchased on the Exchange and seeks an income tax deduction of the interest charged by the broker but not actually paid by the customer to the latter. He cannot avail himself of such a deduction unless the broker receives dividends from his securities which are applicable to the interest due. I. T. 3483, 1941 1 Cum. Bull. 207.
The taxpayer seeks to establish that there has been a "constructive" payment of the $1,184.21 because the cash reserves applicable to the policies were diminished by the amount of the additional borrowing to pay the interest. But the same contention may be made where there is an additional borrowing from a broker to pay arrears of interest on hypothecated securities. There, as in the case of insurance policies, the borrower's equity is reduced by the amount of the accrued interest. In either case the original amount of interest remains unpaid though secured by the securities or the policies as the case may be. The giving of the policies as security for the arrears of interest, if not thus held *598 already, did not "transform" an existing obligation "into the payment required to constitute a deductible loss in the taxable year." Helvering v. Price, 309 U.S. 409, 414, 60 S. Ct. 673, 676, 84 L. Ed. 836. The collateral represented by the policies could be released pro tanto by the payment of the additional loan. In the year when such a payment occurred, and not until then, the taxpayer could properly claim a deductible loss in his income tax. We find no basis for the contention that there was a constructive payment.
The taxpayer relies on our recent decision in Andrews v. Commissioner, 2 Cir., 135 F.2d 314. There scrip having a current value in over-the-counter trading was issued to a taxpayer in payment of interest on bonds held by the latter. In view of a covenant contained in the bonds providing that interest thereon might be paid in the obligor's "securities", we treated the scrip as different from a mere promise to pay an existing obligation and directed that it be valued as property subject to income tax on the part of a taxpayer who was on a cash basis.
The order of the Tax Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568003/ | 139 F.2d 153 (1943)
BOZEL
v.
UNITED STATES.
No. 9511.
Circuit Court of Appeals, Sixth Circuit.
December 14, 1943.
*154 *155 Emmet H. Bozel, in pro. per.
Roy C. Scott, of Cleveland, Ohio (Don C. Miller and Roy C. Scott, both of Cleveland, Ohio, on the brief), for appellee.
Before ALLEN, HAMILTON, and McALLISTER, Circuit Judges.
HAMILTON, Circuit Judge.
Appellant, Emmet H. Bozel, appearing here in propria persona was indicted in the United States District Court for the Northern District of Ohio, Eastern Division, June 14, 1939, for violation of U.S.C.A., Title 18, Section 338. The indictment contained three counts and appellant on trial was convicted on all of them. The trial court, on September 15, 1939, sentenced appellant to five years imprisonment on each count, the sentences on counts 1 and 2 being consecutive and the sentence on count 3 being concurrent with those on counts 1 and 2. On January 30, 1943, appellant filed a motion for vacation of the sentences which the trial court denied and from which order of denial this appeal is prosecuted.
Appellant states five alleged grounds for vacation of the sentences:
(1) The first count charged appellant with devising a scheme or artifice to defraud. The scheme was therein particularized and the persons and corporations who were its objects were named. This count charged appellant with placing in the mails at Cleveland, Ohio, a letter addressed to one of the corporations previously named as one of the intended victims. The second and third counts incorporated by reference the particulars of the scheme stated in the first count and each of these counts separately charged appellant with placing in the mails at Cleveland, Ohio, a letter in furtherance of his scheme, each letter being addressed to a different corporation whose name was listed in the first count.
From these facts, appellant insists that the entire indictment charged but one offense and that the trial court was without jurisdiction to impose a sentence for more than one offense, and as the sentences on counts one and two were consecutive that the trial court twice put him in jeopardy for the same offense.
The test for determining whether the offenses charged in one or more counts of an indictment are identical is whether the facts alleged in one, if offered in support of the other would sustain a conviction. Morgan v. Devine, 237 U.S. 632, 639, 35 S. Ct. 712, 59 L. Ed. 1153; Ebeling v. Morgan, 237 U.S. 625, 630, 35 S. Ct. 710, 59 L. Ed. 1151. Where one count requires proof of a fact which the other does not, the offenses charged are not identical. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306; Gavieres *156 v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489.
The proof of the mailing of the letter to the corporation named in the first count would not sustain a conviction on the second count, and vice versa the mailing of the letter to the corporation named in the second count would not sustain a conviction on the first count. The gist of the offense under the statute in question is the mailing of a letter in the execution of the scheme to defraud. The mailing and the letter itself constitute the corpus delicti. The statute forbids, not the general use of the post office for the purpose of carrying out a fraudulent scheme or device, but the depositing in the post office of a letter or the removal of a letter from the post office in furtherance of a fraudulent scheme. Each letter so removed and each letter so deposited is a separate and distinct violation of the statute. In re Henry, 123 U.S. 372, 8 S. Ct. 142, 31 L. Ed. 174; Durland v. United States, 161 U.S. 306, 16 S. Ct. 508, 40 L. Ed. 709.
The fact that the first count listed the persons and corporations which appellant's scheme envisioned and included those named in the second and third counts does not lead to the conclusion that the United States intended to charge numerous offenses in the first count nor make the indictment duplicitous. The purpose of naming the persons and corporations in the first count was to designate the names of those injured by the scheme and to set forth the facts which constituted appellant's transgressions.
On November 21, 1934, appellant was convicted and sentenced by the United States District Court at Jacksonville, Florida, for a violation of the Mail Fraud statute (Title 18 U.S.C.A. § 338).
Under the Parole Act (Title 18 U.S.C.A. §§ 724-727) appellant had been released from incarceration at the time of the imposition of the sentences here but there remained unserved fifteen months of his previous sentence. He claims it was the duty of the trial court to have provided in the present sentences that they be concurrent or consecutive with the unserved portion of the earlier sentence and further insists that the trial court failed to take into consideration the fact that his present conviction would, under the Parole Act, require him to finish the service of the old sentence.
Under the Parole Act, if the behavior of defendant warrants, he may be paroled when he has served one-third of his sentence, but the court lacks the power to arrest execution of sentence after it is imposed and defendant has been delivered to the executive officers of the government for its service. The matters of commutation of sentence, pardon, conditional or otherwise, or parole, are purely the province of the executive department. Article 2, Section 2, Clause 1 of the Constitution; Ex parte Wells, 59 U.S. 307, 18 How. 307, 15 L. Ed. 421; United States v. Murray, 275 U.S. 347, 348, 48 S. Ct. 146, 72 L. Ed. 309.
The beginning of the service of a sentence in a criminal case ends the power of the court to control it at the expiration of the term at which it is imposed. Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L. Ed. 872; Zerbst v. Kidwell, 304 U.S. 359, 58 S. Ct. 872, 82 L. Ed. 1399, 116 A.L.R. 808.
A court, when imposing sentence, may take into consideration the fact that a prisoner sentenced to a federal penal institution for an offense committed while he was on parole from such an institution may be required by the Parole Board to serve the unexpired portion of his first sentence after the expiration of his second one, but it is not compelled to do so, and the fact that the judgment in a criminal case makes no provision for this contingency does not make the second sentence irregular or invalid. According to the allegations of appellant's motion, the trial court was aware at the time the present sentences were imposed that appellant was a parolee and the presumption prevails that the court gave consideration to appellant's status in fixing the length of sentences. In any event the trial court had a discretion in the matter and, there being no showing that such discretion was abused, the appellate court has no control over it.
All of the persons and corporations named in the indictment, which it is claimed were within the ambit of appellant's fraudulent scheme, were non-residents of the Northern District of Ohio and the only jurisdictional fact appearing in the record on which the indictment was based was that appellant, in furtherance of his scheme, had deposited in the United States mails at Cleveland, Ohio, letters addressed to non-residents of the District. There is *157 no charge that the letters were delivered to the points of destination.
From this, appellant urges that the court lacked jurisdiction because no part of the alleged scheme on which the indictment was based was effected in the District where the indictment was returned. Under the plain language of the statute, the government may elect to commence prosecutions under it in the District where the letter is mailed or in the District where it is received. Hagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 76 L. Ed. 861. The trial court had jurisdiction.
(3) and (4). Appellant claims that the sentences imposed on him are the result of irregularities growing out of the presentation to the Grand Jury of evidence of other offenses committed by him beyond the court's jurisdiction, and also that in the course of the trial witnesses were permitted to testify over appellant's objection that he had theretofore been convicted of the offense of using the mails in fraudulent schemes and that other incompetent evidence was heard by the jury over his objection, all of which permeated the sentences. These contentions are not open for the court's consideration on a motion for a correction for a sentence. It is a familiar general rule that, in the absence of a statute providing otherwise, a criminal court cannot alter or set aside its final judgment after the expiration of the term at which it was entered unless proceedings to that end were initiated at the term of court at which the sentence was imposed. United States v. Mayer, 235 U.S. 55, 35 S. Ct. 16, 59 L. Ed. 129.
On a motion made for the correction of a sentence after the expiration of the term at which such sentence was imposed, the jurisdiction of the district court is of limited scope. Before a sentence may be avoided on such a motion, the burden rests on the defendant to show that the court was without jurisdiction to impose the particular sentence or that the proceedings on which it was based were themselves so involved or irregular as to make the judgment void. Such a proceeding may not be resorted to for the correction of errors of law which do not vitiate the judgment. The matters of which appellant complains in his contentions (3) and (4), relate to alleged errors of law, if any, committed in the course of the trial of which the court had jurisdiction. Holiday v. Johnston, 313 U.S. 342, 550, 61 S. Ct. 1015, 85 L. Ed. 1392; Crockett v. United States, 9 Cir., 125 F.2d 547; Gilmore v. United States, 10 Cir., 129 F.2d 199.
(5) Lastly, appellant attacks the judgment on the ground that the court awarded costs of $25.00 to the United States. The practice as to the imposition of costs is the same in criminal cases as in civil. The trial court, in its discretion, had the authority to award the United States a judgment for costs against appellant.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568025/ | 450 S.W.2d 64 (1970)
PIONEER CASUALTY COMPANY, Petitioner,
v.
John L. JOHNSON, Respondent.
No. B-1664.
Supreme Court of Texas.
January 21, 1970.
Rehearing Denied March 4, 1970.
Robert L. Strickland, San Antonio, for petitioner.
Brown & Brown, William V. Brown, Jr., Texarkana, for respondent.
STEAKLEY, Justice.
This is a venue case in which jurisdiction of this Court must rest upon conflict as provided in Subdivision 2 of Article 1728. See Articles 1728 and 1831, Vernon's Annotated Texas Civil Statutes; John Farrell Lumber Company v. Wood, 400 S.W.2d 307 (Tex.Sup.1966). The controlling venue exception is Subdivision 23 *65 of Article 1995, and the asserted conflict is with Pan American Fire and Casualty Company v. Loyd, 411 S.W.2d 557 (Tex. Civ.App.Amarillo 1967, no writ). We have concluded that the requisite conflict does not exist and that the application for writ of error must be dismissed for want of jurisdiction.
John L. Johnson and wife, respondents here and plaintiffs below, were the insureds in an automobile liability policy issued by Pioneer Casualty Company, petitioner here and defendant below. Mrs. Johnson was involved in a collision in Texarkana, Texas, with one Thomas J. Young. The Johnsons sued Young and obtained a default judgment against him in the total sum of $5,803.60. Young subsequently took bankruptcy and the judgment is unsatisfied. Thereafter, the Johnsons filed this suit in Bowie County against Pioneer seeking to invoke the uninsured motorist provisions of the automobile liability policy[1] on the basis of the unsatisfied judgment against Young. Pioneer filed its plea to be sued in Bexar County, the county of its residence, and this was controverted by the Johnsons. The trial court overruled the plea of privilege and this was affirmed by the Court of Civil Appeals, 447 S.W.2d 188, the opinion reading as follows:
"A venue case. Plaintiffs-appellees first sued Thomas J. Young in the District Court of Bowie County, Texas, for damages as the result of a car wreck. Young did not have any liability insurance. Appellees notified the defendant-appellant about the wreck at the time of the filing of the first suit. Appellees recovered a judgment against Young. Young took bankruptcy. Appellees had insurance that provided uninsured motorist coverage. Appellees filed suit against appellant under their insurance policy. Appellant's plea of privilege was overruled. It has perfected its appeal and brings forward fifteen points of error.
"Appellees plead Subdivisions 9a, 23 and 28 of Art. 1995, Vernon's Ann.Rev. Civ.St., as exceptions to the general venue statute. Appellant contends that the trial court erred in overruling its plea of privilege under these exceptions. Appellees proved that Young was an uninsured motorist, that he was involved in an accident with appellees in Bowie County, Texas, and, that appellees suffered damages. They also plead and proved their uninsured motorist insurance coverage and offered in evidence the insurance policy that was issued to them in Bowie County, Texas. The evidence is sufficient to sustain the judgment of the trial court. Pan American Fire & Casualty Co. v. Loyd, CCA, 1967, 411 S.W.2d 557, N.W.H. The points are overruled.
"The judgment of the trial court is affirmed."[2]
*66 The suit in Pan American Fire and Casualty Company v. Loyd, supra, seeking to invoke the uninsured motorist endorsement was in the form of an initial direct action against the insurer; the controlling holding was stated as follows:
"We, therefore, are compelled to the conclusion that appellee [the insured] failed to discharge the burden of proving a prima facie case that Cofer [the third party participant in the automobile collision] was an uninsured motorist, * *."
It was also stated in Loyd:
"There is also a very serious question of prima facie proof of negligence and causation, the other requirement to show a cause of action in Hale County."
Here, the suit against the insurer is upon the judgment previously obtained by the Johnsons against Young and not, as in Loyd, a direct action against the insurer. It could be held as is contended by the Johnsons, that proof of the unsatisfied judgment against Young established prima facie the negligence, causation and damage elements of the requisite venue case against Pioneer. Moreover, no claim is made by Pioneer that the Johnsons did not meet their burden of showing that Young was uninsured. It thus becomes clear that the state of facts in Loyd is not the same as here, and that the decision of the Court of Civil Appeals would not operate to overrule the decision in Loyd had the cases been decided by the same court. It follows that there is an absence of conflict in rulings necessary to our jurisdiction. See also State v. Wynn, 157 Tex. 200, 301 S.W.2d 76 (1957).
Our order granting the application for writ of error is set aside and the application is dismissed for want of jurisdiction.
Dissenting opinion by SMITH, J., in which GREENHILL and POPE, JJ., join.
SMITH, Justice (dissenting).
I respectfully dissent. The holding in this venue case is in conflict with the holding in the venue case of Pan American Fire and Casualty Company v. Loyd, 411 S.W.2d 557 (Tex.Civ.App.1967, no writ). In both cases, the plaintiff, an insured in an automobile liability policy, was involved in a collision with an alleged uninsured motorist. The insured plaintiff in each case filed suit seeking to invoke the uninsured motorist provisions of the automobile liability policy, which had been issued by his insurer, and, which was in full force and effect at the time of the collision. In each case, the Court of Civil Appeals held that the burden of proof rested with the plaintiff to establish that the defendant was an uninsured motorist within the meaning of the "Uninsured Motorist Insurance' provision of the policy issued by his insurer. On this phase of proof, there appears no conflict upon the face of the opinions. Such conflict appears on the question of the burden of proving negligence on the part of the uninsured motorist. In Pan American, the court recognized that the insurer's agreement to "pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile * * *", involves the concept of negligence. The court held:
"Under the terms of the endorsement * * * this required proof by a preponderance of the admissible testimony, that deceased Cofer was an uninsured motorist, a condition precedent to proof of a cause of action under the terms of such endorsement. The other requirement, of course, was that appellee must prove by a preponderance of the evidence Cofer was negligent upon the occasion in question and that such negligence *67 was a proximate cause of the damages sustained by appellee." Emphasis added.
While the court reversed the judgment of the trial court on the ground that the plaintiff failed to discharge his burden of proving that Cofer, the defendant, was an uninsured motorist, nevertheless, the court made it clear that upon another trial it would be necessary for the plaintiff to prove negligence and proximate cause.
Turning now to the opinion of the Court of Civil Appeals in the case at bar, it is clear to me from the language used in the opinion, that the holding is that it was unnecessary for the plaintiffs to prove negligence and proximate cause. In other words, the court has held that plaintiff's only burden was to prove that the defendant was an uninsured motorist. The court held:
"Appellees [Plaintiffs] proved that Young [Defendant] was an uninsured motorist, that he was involved in an accident with appellees in Bowie County, Texas, and, that appellees suffered damages. They also plead and proved their uninsured motorist insurance coverage and offered in evidence the insurance policy that was issued to them in Bowie County, Texas. The evidence is sufficient to sustain the judgment of the trial court."
The court cited Pan American in support of its holding. The test announced by this Court in State v. Wynn, 157 Tex. 200, 301 S.W.2d 76 (1957) does not, in order to show conflict, require a recitation in the opinion that proof of negligence and proximate cause is not necessary. The conflict appears on the face of the opinion just as though the Court in the present case had said that negligence and proximate cause need not be proved. In legal effect, the Court of Civil Appeals in the present case has so held. These conflicting holdings present a conflict in rulings sufficient to give this Court jurisdiction. This Court bases its holding that no conflict exists on pure speculation as to the quantum of proof offered by the plaintiff in the trial court prior to the entry of the default judgment. In other words, this Court's judgment relieves the plaintiffs of their burden of proving negligence and proximate cause in the plea of privilege hearing, in effect, agreeing with the Court of Civil Appeals. This is the question to be decided, once the Court takes jurisdiction. In my opinion, the Court has jurisdiction to pass upon the issues raised in the plea of privilege and the controverting affidavit.
The controverting affidavit reflects that the plaintiffs relied upon exceptions 9a, 23 and 28, of Article 1995, Vernon's Annotated Civil Statutes to sustain their position that the suit against Pioneer was properly brought in Bowie County, Texas. The Court of Civil Appeals fails to specifically state which exception is applicable. The Court here deals with the question as though the Court of Civil Appeals based its judgment solely on exception 23. Pioneer has points in its application for writ of error that the holding of the Court of Civil Appeals is in conflict with decisions regarding exceptions 9a and 28. Pioneer is entitled to have these points passed upon before judgment is entered denying jurisdiction.
GREENHILL and POPE, JJ., join in this dissent.
NOTES
[1] "COVERAGE J UNINSURED MOTORISTS (DAMAGES FOR BODILY INJURY) To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company."
See Nickum, Uninsured Motorist Protection, 1 Tex.Tech.L.R. 163.
[2] Pioneer in its application for writ of error properly states: "As Pan American v. Loyd concerned Subdivision 23, and as the instant case clearly would not be governed by either Subdivision 9a or 28, then by inference the Court of Civil Appeal's (sic) decision herein was based on Subdivision 23." Section 9a is inapplicable because the suit against Pioneer is upon the contract of insurance; Section 28 is inapplicable because Pioneer is not the type of company, and the insurance policy sued on is not the type of policy, to which this exception applies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568028/ | 139 F.2d 445 (1943)
PENNSYLVANIA POWER & LIGHT CO.
v.
FEDERAL POWER COMMISSION.
No. 8107.
Circuit Court of Appeals, Third Circuit.
Argued April 21, 1943.
Decided December 7, 1943.
Rehearing Denied February 11, 1944.
*446 *447 John F. MacLane, of New York City (Richard Hawkins and Simpson Thacher & Bartlett, all of New York City, and Thomas J. Perkins, E. G. Hauff, and C. J. Green, all of Allentown, Pa., on the brief), for petitioner.
Howard E. Wahrenbrock, of Washington, D. C. (Charles V. Shannon, Gen. Counsel, Louis W. McKernan, F. R. Bell, and Frederic M. P. Pearse, Jr., all of Washington, D. C., on the brief), for respondent Federal Power Commission.
Before MARIS and GOODRICH, Circuit Judges, and BARD, District Judge.
MARIS, Circuit Judge.
The Pennsylvania Power & Light Company constructed the Wallenpaupack Power Project in Pennsylvania under license issued by the Federal Power Commission by authority of the Federal Water Power Act, 41 Stat. 1063. The project was begun in 1924 and completed in 1926. Pursuant to Section 4(a) of the Federal Water Power Act, 41 Stat. 1065, to Article 17 of the license and to Regulation 20, Section 2, of the Federal Power Commission's Rules and Regulations, the licensee filed with the Commission on October 24, 1928, its statement of actual legitimate original cost of the project to December 31, 1927, and subsequently filed annual statements of additions, betterments and retirements to December 31, 1934. In these statements the licensee claimed $9,148,755.88 as the total actual legitimate original cost of the project, additions and betterments.
By order of April 14, 1942, as amended September 29, 1942, the Commission determined the actual legitimate original cost of the Wallenpaupack project as of December 31, 1934, to be $8,579,186.15. The Commission arrived at this figure by disallowing a number of the items claimed by the licensee as cost. It directed the licensee to conform its books of account to reflect such determination. By the present petition filed under authority of Section 313(b) of the Federal Power Act,[1] 49 Stat. 860, 16 U.S.C.A. § 825l(b), the licensee seeks to have the order of the Commission set aside or modified so as to have included in the actual legitimate original cost of the project several of the items disallowed by the Commission and to eliminate from the Commission's order the direction that the disallowed items be written out of the licensee's capital accounts and transferred to its earned surplus. If it succeeds in having the order modified so as to have any or all of the disallowed items included in cost the licensee also seeks to have the interest during the construction period recomputed in accordance with such adjustment.
The items which were disallowed by the Commission and as to which the licensee seeks review were the following:
Phoenix Utility Company construction
fee .................................. $197,596.35
Electric Bond and Share Company
engineering charges .................. 93,629.87
Accounting and hearing expenses ....... 28,118.41
Flow Line Bands and Shoes ............. 15,167.99
We shall discuss them in the order stated.
Phoenix Utility Company Construction Fee
Construction work upon the project was done by Phoenix Utility Company under a cost plus fixed fee contract. The fee of 3% amounting to $197,596.35 paid by the licensee to Phoenix under this contract was disallowed by the Commission because of the affiliation which existed between Phoenix and the licensee through Electric Bond and Share Company. In doing so the Commission applied its "no profit to affiliates" rule. The rule was stated in Louisville Hydro-Electric Company, 1 F.P.C. *448 130 (1933). In that case the Commission was called upon to determine actual legitimate original cost as that term was used in the Federal Water Power Act. The Commission there said (p. 136): "In making a determination of the actual legitimate original cost of the project constructed under this contract, the Commission is not blinded by legal technicalities nor misled by attenuated theories. Where there is admitted control of both the licensee and the service company and where, as here, the two companies are virtually departments of an integrated system, the Commission must, under the provisions of the Federal Water Power Act, disregard the contract and hold that cost to the licensee can be no more, though it may under certain circumstances be less, than the cost of such service to the service company. Since the relationship of these two companies so unmistakably points to the existence of a superimposed power arbitrarily to dictate contracts and fix charges for services, the Commission cannot be bound by the terms of such contract, but must demand evidence of the cost to the Byllesby Service Co. of the services rendered."
Congress was informed of this interpretation of the statutory phrase "actual legitimate original cost" by the Commission in its Fourteenth Annual Report transmitted December 1, 1934, in which the Commission said (p. 2): "* * * the Commission has sought to protect the public interest by denying claims of costs for services to the licensee, performed by holding companies or affiliated service corporations, pending production by the licensed operating company of the original records of cost. In considering such claims the Commission holds that `cost to the licensee can be no more, though it may under certain circumstances be less, than the cost of such service to the service company.'"
In 1935 Congress made extensive amendments and additions to the Federal Water Power Act but retained without change the act's use of the phrase "actual legitimate original cost."[2] Immediately after the enactment of the 1935 amendments the Commission again applied its "no profit to affiliates" rule. Northern States Power Co., 1 F.P.C. 329, 344, 345 (1936).
The licensee urges that since Section 3 of the act states that "`net investment' in a project means the actual legitimate original cost thereof as defined and interpreted in the `classification of investment in road and equipment of steam roads, issue of 1914, Interstate Commerce Commission'," the interpretation of the phrase "actual legitimate original cost" by the Interstate Commerce Commission is controlling. It urges further that the Interstate Commerce Commission has so interpreted the phrase as to allow profits paid by a carrier to an affiliated construction company to be included in cost without differentiating between them and payments made to non-affiliated contractors. The licensee relies primarily upon Texas Midland Railroad, 1918, 75 I.C.C. 1, 176, as authority for this proposition. The Commission cites, as authority for an opposite conclusion, Kansas City Southern Railway Company, 1919, 75 I.C.C. 223, 233.
Before considering these cases, however, we note that the Valuation Act of 1913, 37 Stat. 701, 49 U.S.C.A. § 19a, under which the "classification of investment in *449 road and equipment of steam roads" was issued in 1914 by the Interstate Commerce Commission pursuant to the mandate of the act to the Commission to investigate and report upon the "original cost", inter alia, of the physical property of the carriers subject to its jurisdiction, refers merely to "original cost" and does not use the qualifying adjectives "actual" and "legitimate." Likewise the classification itself does not use these adjectives as qualifying "original cost". Its purpose was to define and classify the elements entering into the cost of road and equipment and to prescribe the several general and primary accounts in which the costs thus defined and classified were to be entered. The only provisions of the classification touching our present problem are the following statements appearing in the general instructions: "Costs shall be actual money costs to the carrier." (p. 10). "The cost of construction shall include the cost of labor, materials and supplies, * * * contract work, * * * and other analogous elements in connection with such work." (p. 11). "Cost of contract work includes amounts paid for work performed under contract by other companies, firms, or individuals, and costs incident to the award of the contract." (p. 12). We find nothing either in the general instructions or in the body of the classification bearing upon the question whether work done by affiliated service or construction companies is to be deemed "work performed under contract by other companies" or whether the corporate forms are to be disregarded and the work is to be deemed to have been performed by the carrier itself acting through the instrumentality of its corporate affiliate.
Turning to the Interstate Commerce Commission's opinion in the Texas Midland Railroad case we find nothing therein which may fairly be construed as dealing with the question whether the Interstate Commerce Commission interpreted original cost so as to include profits paid by a carrier to an affiliated corporation. In that case the issue which the Interstate Commerce Commission was called upon to decide was whether in determining the cost of a project the amounts actually expended by the carrier or the fair average cost must prevail. It ruled in favor of the amounts actually expended. Nor is the case upon which the Federal Power Commission relies authority for its present contention. In Kansas City Southern Railway the carrier paid profits not only to independent subcontractors who did the actual construction but also to affiliated corporation contractors which had sublet the construction work to the independent subcontractors. The Interstate Commerce Commission allowed the profits paid to the independent subcontractors to be included in the cost. It disallowed the claim for profits paid to the carrier's affiliated corporations, not because of the affiliation but because they had not done the work and therefore were not entitled to any profits based upon construction work done.
We conclude that the "classification of investment in road and equipment of steam roads, issue of 1914, Interstate Commerce Commission", to which the Federal Water Power Act referred as defining and interpreting "actual legitimate original cost", did not determine whether profits paid by a carrier to an affiliated construction company were to be included in determining such cost and does not in fact throw any light upon the meaning intended by Congress to be given to the qualifying words "actual" and "legitimate" as used in the Federal Water Power Act, since those words did not appear in the statute under which the classification was issued. We further conclude that up to the time of the enactment of the Federal Water Power Act in 1920 the Interstate Commerce Commission had not ruled upon the question whether under the Valuation Act of 1913 and the classification issued in 1914 profits paid to an affiliated construction corporation by a carrier were includible in determining original cost of the road. The Interstate Commerce Commission cases decided after the passage of the Federal Water Power Act and cited[3] by the licensee have no bearing on the question before us since they could not have been in the contemplation of Congress when it passed the act and do not deal with the meaning of the statutory phrase with which we are concerned "actual legitimate original cost". We must, therefore, determine whether the Federal Power Commission's "no profit to affiliates" rule is justified by the statutory direction that the original *450 cost which is to be determined must be "actual" and "legitimate".
We think that the Commission's "no profit to affiliates" rule is in accord with the statutory mandate that costs are to be restricted to actual expenditures and are not to be illegitimately inflated by any device. Had the licensee itself constructed the project one could hardly contend that it could charge as a part of the cost any profit to itself. Clarion River Power Company, 1 F.P.C. 269, 279 (1935). Such a charge would not be an actual or legitimate item of cost. But payment of profits to an affiliated corporation may for all practical purposes be the equivalent of payment of profits to the licensee itself. In such a case the interposition of the corporate veil between what may be in fact, if not in law, mere departments of a single integrated system will not serve to legitimize what otherwise would be an illegitimate item of cost. For an intercorporate profit which upon a consolidated income statement of the affiliated group would disappear entirely is too lacking in substance to be treated as an actual cost. Our view in this respect is in accord with the rulings in two recent cases.
In Alabama Power Co. v. McNinch, 1937, 68 App.D.C. 132, 94 F.2d 601, the profit fee was denied as an item of cost by the Commission because the construction corporation was found to be but a department of the licensee. Upon appeal the licensee contended, as does the licensee in this case, that the item must be allowed when reasonable as measured by amounts which would have been charged by others for the performance of like services. The court answered this contention by saying (page 94 F.2d at 618): "The statute in insisting upon actual legitimate cost must be taken to forbid inflation of cost by any device; and the finding that the Dixie Construction Company was a department of the licensee, since it is supported by substantial evidence, cannot be disturbed. If, as the Commission found, the Dixie Company was but the construction department of the Power Company, to allow a 3% fee on the costs of the `Dixie Company' would be to allow 3% more than the actual cost to the Power Company of the work. Our conclusion is that the disallowance of the Dixie fee was correct."
The same power company, Alabama, and the same construction company, Dixie, were again involved in Alabama Power Co. v. Federal Power Commission, 5 Cir., 1943, 134 F.2d 602. However, whereas, Alabama had owned all the stock of Dixie during the construction period involved in the McNinch case, it had subsequently transferred that stock to a company which was wholly owned by the same holding company which owned Alabama's stock. The Circuit Court of Appeals for the Fifth Circuit held that the 3% fee paid by Alabama to Dixie was an intercorporate profit and not a cost of construction. The court said (page 134 F.2d at 609): "The purpose of the determination of original legitimate cost is to protect the public against exaggerated claims by licensee utility companies of their investments in respect of which they are entitled to a return. Holding companies have much confused the matter. This is a situation in which the corporate fiction may be carefully scanned and separate corporate entities ignored when they are used to evade the law. So long as Alabama owned Dixie, there was no strain in holding it a mere department of Alabama. The matter is not much changed by the shift of stock ownership so that the same corporation owns them both. Legitimate costs cannot in either case be swelled beyond what they would have been if the construction had been done by the ultimate owner of the project. Legitimate cost includes everything spent that would have been rightly spent if there had been but one corporation, but not profits charged by one wholly owned corporation against another."
The facts of the present case justify the Commission's conclusion that a close relationship existed in the Electric Bond and Share holding company system among the licensee, Phoenix and Electric Bond and Share. Since the incorporation of Phoenix in 1906 as a construction company Electric Bond and Share has owned its total outstanding stock of 20 shares having a par value of $100 each. Aside from its name Phoenix has no genuine corporate existence. It operates with no funds of its own, has no construction equipment, no officers or employees of its own but only such as are supplied by Electric Bond and Share or by the operating companies, and pays none of their salaries. It operates only within the Electric Bond and Share system and obtains none of its contracts as a result of competitive bidding.
From the date of its organization in 1920 to December 31, 1934, the date as of *451 which the cost of the project is to be determined, the entire common stock and the majority of the outstanding voting stock of the licensee was owned by Lehigh Power Securities Corporation, a subsidiary of Electric Bond and Share. While Electric Bond and Share owns but 15% of Lehigh's voting securities it possesses working control of Lehigh through voting trust agreements and service contracts.[4]
Phoenix and the licensee are thus both puppets in the Electric Bond and Share system. Moneys paid by the licensee to Phoenix at the behest of Electric Bond and Share and designated as a fee for construction work might without altering the essential nature of the transaction have been paid by the licensee directly to the corporation which pulled the strings, Electric Bond and Share. The Commission was amply justified in its conclusion that by reason of the control exercised by Electric Bond and Share over both Phoenix and the licensee and the intercorporate relationship there was no arm's length dealing in the arrangement whereby the licensee agreed to pay Phoenix a fee of 3% of the cost of constructing the project. The fee thus exacted by Electric Bond and Share for its corporate dummy was not a legitimate item of cost. We conclude that the Commission properly applied its "no profit to affiliates" rule and properly disallowed the licensee's claim of $197,596.35 paid to Phoenix as an item of actual legitimate original cost.
Electric Bond and Share Company Engineering Charges
The engineering department of Electric Bond and Share provided the licensee with designs and specifications for the Wallenpaupack project under a contract whereby the licensee reimbursed Electric Bond and Share for the salaries paid to the employees of Electric Bond and Share who did the work and in addition paid a stated percentage to cover overhead. The overhead charged averaged approximately 95% of the salaries. The Commission determined that but 50% was properly allocable as overhead to the engineering and other services rendered on the project. It allowed as actual cost to Electric Bond and Share the salaries paid by it plus 50% and disallowed the remaining 45% which amounted to $84,555.75.
Our discussion of the Phoenix fee is equally applicable to the Electric Bond and Share charges insofar as those charges represent profits to Electric Bond and Share. However the partial disallowance of these charges raises the additional question whether the Commission erroneously reduced the overhead charges from 95% to 50%. The Commission reached its conclusion because it found from an independent study that Electric Bond and Share in computing the overhead claimed for the engineering department had loaded that department with expenses of other departments without justification. The purport of the licensee's argument is that the findings of the Commission are contrary to the testimony of witnesses called on behalf of the licensee, to the conclusions reached by the licensee's accountants, Haskins & Sells, in their accounting report, and to a report of an examiner of the Federal Trade Commission which contained a study and audit of Electric Bond and Share's engineering overhead. However, the licensee does not contend that the Commission's findings are contrary to the facts as presented by Andrew W. Wilcox, who audited the Electric Bond and Share books for the Commission and of Charles W. Smith, the Commission's chief accountant.
The Commission's determination that the facts do not justify more than a 50% allocation of the total overhead of Electric Bond and Share to the engineering department was not reached arbitrarily and capriciously but only after an exhaustive study of the books and practices of Electric Bond and Share. Section 313(b) of the Federal Power Act provides that "the finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." This court, therefore, may not disturb the determination of the Commission upon this question.
The Commission disallowed three items paid by the licensee to Electric Bond and Share as its proportionate share of engineering salaries and expenses incurred in making preliminary engineering investigations. The Commission disallowed the first two items because there was no evidence *452 that the work related to the Wallenpaupack site or project and also because there was no evidence as to how the charges were allocated. The licensee claims that there is testimony of one witness that as a result of the investigation which cost $10,812.81 and for which the licensee paid as its proportionate share $3,536.26 Wallenpaupack was recommended for development and acquired from the syndicate controlling it. We have examined that testimony and find that it relates to an investigation ordered by the licensee and does not by its terms refer to the investigation ordered by Electric Bond and Share for which the charges were paid. It, therefore, cannot be held as a matter of law that there was evidence to connect the salaries and expenses incurred for the investigation for which the charges were made with the site actually developed.
The second item for preliminary engineering studies is for $2,000 which was allocated as the licensee's share of a total of $12,336 paid by Electric Bond and Share as salaries and expenses. The licensee rests its claim upon the plea that since these expenses were incurred prior to 1921 and before construction of the Wallenpaupack project it is impossible to determine the accuracy of the allocation at this late date. The necessary voucher support was not submitted and although the reason for the failure to do so is understandable we cannot hold that the Commission erred in disallowing this item.
The third item is for $313.73. Before the commencement of active construction of the project the licensee gave a work order for an engineering study designed to obtain a greater water supply for the Wallenpaupack reservoir. The study had been estimated to cost $3,000 but was abandoned after but a small percentage of the work contemplated had been done. That work had no effect upon the project, either positive or negative, because not enough was accomplished to have any meaning. We conclude that the Commission properly disallowed the three items claimed for preliminary engineering investigations.
Accounting and Hearing Expenses
In conformity with Section 4(a) of the Federal Water Power Act[5] the licensee prepared and submitted its claim of original cost of the project together with supporting evidence. The cost of doing so was $28,118.41. This item was also claimed as cost. The Commission disallowed this item, we think properly. The cost was incurred after completion of the project. It was incurred in connection with the formal proceedings before the Commission. As such the item is properly classified as an operating expense rather than a construction cost. The fact that the expenditures were made pursuant to the license which had incorporated the statutory requirement that the licensee should provide the Commission with an original cost claim, does not alter the character of the expenditures as operating expenses.
Flow Line Bands and Shoes
The construction designs and specifications for the wood stave pipe line below the dam on the Wallenpaupack project called for the installation of saddles eight feet apart along the pipe line and of eighteen pipe line bands and shoes between each pair of saddles. Through an error but sixteen bands and shoes were actually installed between each pair of saddles. Electric Bond and Share's engineers decided that the cost of correcting the error would not be justified by the additional margin of safety to be achieved. The unused bands and shoes were resold to the manufacturing company at a loss of $15,167.99. The loss was claimed as an element of cost but was disallowed by the Commission. The Commission's position is that to allow this item as a cost would be to require the government, if it takes over the project, to pay for a margin of safety not provided by the project as it was actually constructed by paying for materials never incorporated in the work. We agree with the Commission that the loss incurred upon the resale of these unused bands and shoes was not an element of actual cost of the project. They had no *453 more to do with the completed work than if they had been used on another project or had never left the factory. This was not a case of excess material being supplied to cover the possibility of breakage, spoilage or similar contingency and afterward found not to be needed. These materials should have been used in the project but were omitted from it and they, therefore, have no place in its cost.
Accounting Disposition of Amounts Disallowed
The jurisdiction of the Commission to enter the order directing that the licensee remove from project accounts and transfer to the earned surplus account the items which the Commission disallowed is attacked by the licensee. It contends that the Federal Water Power Act, under which the license was granted, did not entrust the Commission with control of the licensee's capital accounts but merely of the project accounts and that even as to project accounts final determination of project cost or net investment was entrusted by the original act to the district court rather than to the Commission. It asserts that the 1935 amendment to section 14 of the act, which did give the Commission the right to determine net investment, could not affect its right under the original act to have this determination made by agreement or court decree. Finally it contends that the order of the Commission directing the disallowed items to be removed from the project accounts was, in effect, a final determination of the issue of net investment in violation of its right.
We see no merit in these contentions. Four federal courts of appeals have sustained the authority of the Commission to require items of project costs which it has disallowed to be written off to surplus under circumstances similar to those here disclosed. Northern States Power Co. v. Federal Power Commission, 7 Cir., 1941, 118 F.2d 141; Alabama Power Co. v. Federal Power Commission, 1942, 75 U.S.App. D.C. 315, 128 F.2d 280, certiorari denied 317 U.S. 652, 63 S. Ct. 48; Louisville Gas & Electric Co. v. Federal Power Commission, 6 Cir., 1942, 129 F.2d 126, certiorari denied 318 U.S. 761, 63 S. Ct. 559; Alabama Power Co. v. Federal Power Commission, 5 Cir., 1943, 134 F.2d 602. Those cases are clear authority for the Commission's order here complained of. We deem it unnecessary to add to their discussion of these questions other than to point out that the licensee had no vested right to have its investment determined by one procedure rather than by another at least so long as it was accorded a right to be heard and an ultimate judicial review. Accordingly the change of procedure which the 1935 amendment brought about did not, as applied to the present proceeding, violate the Fifth Amendment. Crane v. Hahlo, 1922, 258 U.S. 142, 42 S. Ct. 214, 66 L. Ed. 514. Compare Gibbes v. Zimmerman, 1933, 290 U.S. 326, 332, 54 S. Ct. 140, 78 L. Ed. 342; National Labor Relations Board v. Mackay Co., 304 U.S. 333, 351, 58 S. Ct. 904, 82 L. Ed. 1381.
Likewise we find no merit in the licensee's further contention that it was not afforded a sufficient notice that the question of the removal of the disallowed items from its accounts would be considered by the Commission or a sufficient opportunity to be heard thereon. As to this we need only quote what was said by Justice Miller in one of the Alabama Power Company cases (128 F.2d 280, 288): "Not only is it clearly apparent, therefore, that the Commission had full power to require accounting disposition of all items here in dispute, but it seems inescapable that accounting disposition of all was at issue from the very beginning of the proceedings here under review. Unless accounting disposition had been contemplated for the purposes of the statute, the inquiry would have been without meaning. The Company received its license with full knowledge that the law required it to cooperate with the Commission to the ends therein stated. It is impossible to read the statute without realizing the necessity of ascertaining and making accounting disposition of all items which the licensee put in issue. `The grant of a license, being a privilege from the sovereign, can be justified only on the theory of resulting benefit to the public. The act, therefore, should receive a practical construction, one enabling the Commission to perform facilely the duties required of it by Congress.' Every step in the proceedings and in the negotiations taken by the Commission has been for the purpose of establishing an accounting basis upon which it could perform its duties with respect to the licensee and to the public. This is precisely that regulation which is contemplated by the Act."
The order of the Federal Power Commission is affirmed.
NOTES
[1] The Federal Water Power Act was largely amended and added to by Title II of the Act of Aug. 26, 1935, 49 Stat. 838, 16 U.S.C.A. §§ 791a-825r. Among the amendments effected by Sections 212 and 213 of the Act was the change of the short title of the Federal Water Power Act to "Federal Power Act"; 49 Stat. 847, 863, 16 U.S.C.A. § 791a.
[2] Section 3 of the Federal Water Power Act, 41 Stat. 1064, reads: "`Net investment' in a project means the actual legitimate original cost thereof as defined and interpreted in the `classification of investment in road and equipment of steam roads, issue of 1914, Interstate Commerce Commission', plus similar costs of additions thereto and betterments thereof, minus the sum of the following items properly allocated thereto, if and to the extent that such items have been accumulated during the period of the license from earnings in excess of a fair return on such investment: (a) Unappropriated surplus, (b) aggregate credit balances of current depreciation accounts, and (c) aggregate appropriations of surplus or income held in amortization, sinking fund, or similar reserves, or expended for additions or betterments or used for the purposes for which such reserves were created. The term `cost' shall include, insofar as applicable, the elements thereof prescribed in said classification, but shall not include expenditures from funds obtained through donations by States, municipalities, individuals, or others, and said classification of investment of the Interstate Commerce Commission shall insofar as applicable be published and promulgated as a part of the rules and regulations of the commission."
By Section 201 of the Act of Aug. 26, 1935, 49 Stat. 839, 16 U.S.C.A. § 796(13), the foregoing language of Section 3 was retained without change as paragraph (13) of amended Section 3.
[3] New York, Philadelphia & Norfolk R. Co., 1925, 97 I.C.C. 273, 275; Atlantic City & Shore R. Co., 1927, 125 I.C.C. 353; Southern Pacific Company, 1933, 45 I.C.C., Val.Rep., 1, 12; Pullman Company, 1936, 47 I.C.C., Val.Rep., 501.
[4] Corporate control is possible without ownership of a majority of the corporate stock. Deleware & Hud. Co. v. Albany & Susquehanna, 1909, 213 U.S. 435, 452, 29 S. Ct. 540, 53 L. Ed. 862; United States v. Union Pacific R. R. Co., 1912, 226 U.S. 61, 95, 96, 33 S. Ct. 162, 57 L. Ed. 306.
[5] Section 4(a) of the Federal Water Power Act, 41 Stat. 1065, prior to the 1935 amendment, read: "In order to aid the commission in determining the net investment of a licensee in any project, the licensee shall, upon oath, within a reasonable period of time, to be fixed by the commission, after the construction of the original project or any addition thereto or betterment thereof, file with the commission, in such detail as the commission may require, a statement in duplicate showing the actual legitimate cost of construction of such project, addition, or betterment, and the price paid for water rights, rights of way, lands, or interest in lands. * * *" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858502/ | DHS v. Guthrie
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-335-CV
TEXAS DEPARTMENT OF HUMAN SERVICES AND BURTON F. RAIFORD,
APPELLANTS
vs.
MARY GUTHRIE AND MARILYN JACKSON,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 91-5668, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING
Mary Guthrie and Marilyn Jackson, appellees, sued the Texas Department of
Human Services and Burton F. Raiford in his official capacity as Department Commissioner
(collectively, "the Department"), appellants, challenging the constitutionality of two statutes
requiring their dismissal from employment in nursing-home facilities because of prior criminal
convictions. After a bench trial, the district court found the statutes facially unconstitutional for
failure to provide notice and hearing and enjoined their enforcement against the plaintiffs. The
Department, as well as appellees, complain of error by the trial court. We will overrule all claims
of error and affirm the trial court's judgment.
Both appellees were temporarily employed as nurse aides in nursing-home facilities.
Before permanent employment could be offered, appellees were required to undergo a criminal-conviction check as required by section 106 of the Texas Human Resources Code (1)
and former
article 4442c, § 18 of the Texas Revised Civil Statutes. (2) The background checks revealed that
both women had prior criminal convictions (3) of a type requiring automatic dismissal. (4) As
statutorily required, their employers dismissed them. Before termination, neither Guthrie nor
Jackson received notice of the impending discharge or a hearing.
Appellees filed suit in Travis County district court contending the statutes violated
both the due-course-of-law and equal-protection provisions of the Texas Constitution. The trial
court found the statutes facially unconstitutional for violation of the due-course-of-law provision,
Tex. Const. art. I, § 19, because the statutes failed to provide notice and hearing. Having so
found, the court enjoined enforcement of the statutes against the two women and did not address
the equal-protection claim. On appeal, the Department challenges the trial court's decision in two
points of error.
On appeal, the Department asserts first that the trial court erred in declaring the
statutes "facially" unconstitutional instead of unconstitutional "as applied." Our review of the
record reveals that this alleged error was not preserved for appeal. To preserve error, a complaint
must be presented to the trial court by motion, exception, or objection so the trial court knows the
nature of the error. See Tex. R. App. P. 52(a); PGP Gas Prods., Inc. v. Fariss, 620 S.W.2d
559, 560 (Tex. 1981). The Department never raised this issue before the trial court. Because the
Department failed to bring this issue to the attention of the trial court, it may not raise it for the
first time in this Court. See Tex. R. App. P. 52(a); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d
567, 568-69 (Tex. App.--Houston [14th Dist.] 1990, writ denied). Point of error one is
overruled. (5)
In its second point of error, the Department contends the district court erred by
issuing an injunction rather than ordering the necessary due process to be provided. However,
the Department conceded at oral argument that this point of error could not succeed if the first
point failed. Consequently, point of error two is also overruled.
In two cross-points of error, appellees also challenge the district court's ruling.
They contend first that the district court erred in failing to address their equal protection
argument. However, as the appellees admitted in oral argument, affirmance on the due-course-of-law challenge ends the inquiry. Having found for the plaintiffs on the due-course-of-law claim,
the trial court did not need to reach the equal-protection claim. Likewise, having affirmed the
trial court's due-course-of-law ruling, we need not reach this issue. Thus, we do not address
cross-point one.
In their second and final cross-point, appellees assert error in the trial court's
failure to award them attorney's fees. Appellees ask this Court to reconsider and overrule our
holdings in Texas Employment Commission v. Camarena, 710 S.W.2d 665 (Tex. App.--Austin
1986), rev'd on other grounds, 754 S.W.2d 149 (Tex. 1988), and Texas Department of Human
Services v. Methodist Retirement Services, Inc., 763 S.W.2d 613 (Tex. App.--Austin 1989, no
writ), that sovereign immunity bars an award of attorney's fees against the State under the
Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1986 &
Supp. 1993). We decline this invitation and overrule cross-point of error two.
We affirm the judgment of the trial court.
J. Woodfin Jones, Justice
[Before Chief Justice Carroll, Justices Aboussie and Jones]
Affirmed
Filed: March 17, 1993
[Do Not Publish]
1. Tex. Hum. Res. Code Ann. § 106.003(b) (West 1990 & Supp. 1993) requires the
Department of Public Safety to report to the Department of Human Services criminal
conviction records for:
(1) a misdemeanor or felony classified as an offense against the
person or the family;
(2) a misdemeanor or felony classified as public indecency;
(3) a felony violation of a statute intended to control the
possession or distribution of a substance included in
Chapter 481, Health and Safety Code, or Section 485.033,
Health and Safety Code;
(4) a felony violation of Section 31.03, Penal Code;
(5) robbery or aggravated robbery, as described by Chapter 29,
Penal Code; or
(6) burglary, as described by Section 30.02, Penal Code.
2. Act of June 11, 1985, 69th Leg., R.S., ch. 419, § 1, 1985 Tex. Gen. Laws 1522,
amended by Act of June 20, 1987, 70th Leg., R.S., ch. 1048, § 1, 1987 Tex. Gen. Laws
3515, repealed in part and codified by Health & Safety Code, 71st Leg., R.S., ch. 678, § 1,
1989 Tex. Gen. Laws 2230, 2479, repealed by Act of May 5, 1991, 72nd Leg., R.S., ch. 14,
§ 94, 1991 Tex. Gen. Laws 94.
3. The Department of Public Safety erroneously reported to the Department of Human
Services that Mary Guthrie had a 1984 conviction. Guthrie was not convicted in 1984; she
received deferred adjudication. An adjudication of guilt was made in 1990. The report from
the Department of Human Services to the nursing home facility not only repeated this error,
but contained the additional error of characterizing the conviction as one for "aggravated" theft
when the conviction actually was for aggregated theft. It reported Marilyn Jackson as having
a 1976 conviction for "assault on a police officer" and a 1977 conviction for "simple assault."
Jackson contests the accuracy of the Department of Public Safety records.
4. With limited exceptions, Tex. Hum. Res. Code Ann. § 106.008(a) (West 1990) requires
a facility to "immediately terminate" the employment of a person whose criminal conviction
check discloses a conviction for one of the offenses listed in § 106.003(b).
5. Because we decide this point on procedural grounds, we express no opinion as to the
constitutionality of the statutes in question. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4558403/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
No. 04-20-00295-CR
Neil Howard MCGINNIS,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 6780
Honorable Kirsten Cohoon, Judge Presiding
ORDER
On August 10, 2020, we advised the court reporter that the records were late. On August
17, 2020, court reporter Connie Calvert advised this court that counsel has not asked her to
prepare the reporter’s records.
We ORDER Appellant to provide written proof to this court within TEN DAYS of the
date of this order that (1) Appellant has delivered a written request to prepare the reporter’s
records to court reporter Connie Calvert that designates any exhibits to be included, see TEX. R.
APP. P. 34.6(b), and (2) either the arrangements have been made to pay the reporter’s fee, or
Appellant is entitled to free reporter’s records, see TEX. R. APP. P. 20.2.
If Appellant fails to respond as ordered, Appellant’s briefs will be due within THIRTY
DAYS of the date of this order, and the court will only consider those issues or points raised in
Appellant’s briefs that do not require a reporter’s record for a decision. See TEX. R. APP. P.
37.3(c).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of August, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1568251/ | 10 So. 3d 633 (2009)
SPANN
v.
STATE.
No. SC08-2228.
Supreme Court of Florida.
May 8, 2009.
Decision without published opinion Review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568073/ | STATE OF LOUISIANA
v.
KENNETH L. MIMS
No. KA 08-1420.
Court of Appeals of Louisiana, Third Circuit.
June 3, 2009
Not designated for Publication
JAMES C. DOWNS District Attorney-9th Judicial District MONIQUE Y. METOYER, Assistant District Attorney, Alexandria, Counsel for Plaintiff Appellee. State of Louisiana.
MARY CONSTANCE HANES Louisiana Appellate Project New Orleans, LA, Counsel for Defendant Appellant. KENNETH L. MIMS,
MONIQUE YVETTE METOYER, Attorney at Law Alexandria, LA, Counsel for Plaintiff Appellee. State of Louisiana.
Court composed of THIBODEAUX, Chief Judge, SAUNDERS, and PETERS, Judges.
SAUNDERS, JUDGE.
Defendant, Kenneth L. Mims, was originally charged with first degree murder. On August 18, 2004, the State amended the indictment to charge Defendant with one count of second degree murder, in violation of La.R.S. 14:30.1.
The defense filed a "Motion and Order for Appointment of a Sanity Commission" in October 2004. The motion alleged that Defendant had demonstrated symptoms of mental illness that could prevent him from understanding the trial proceedings. The motion further asserted a psychologist had examined Defendant and had found him to be mentally retarded. The motion finally contended that Defendant may be unable to assist in his defense. The trial court granted a sanity commission, and, on May 31, 2005, the trial court conducted a sanity hearing and determined Defendant was capable of proceeding to trial.
Voir dire commenced on January 10, 2006. After jury selection, the State objected to the defense's use of peremptory challenges to remove all women from the jury. After listening to arguments by the State and the defense's rebuttal, which included a statement of gender-neutral reasons for the challenges, the trial court granted the State's objections as to Doris Gibbs and Christine Luczak.
Defendant's jury trial began on January 11, 2006, and lasted through the following day. The trial concluded with the jury unanimously finding Defendant to be guilty of second degree murder. As a result, on January 20, 2006, the sentencing court ordered Defendant to serve the mandatory penalty, life imprisonment without benefit of probation, parole, or suspension of sentence.
Defendant now appeals, arguing that there is insufficient evidence to support his conviction, that he was unable to assist in his defense due to mental defect, and that his reasons for challenging Ms. Gibbs and Ms. Luczak should have been sufficient. We affirm Defendant's conviction and sentence.
STATEMENT OF FACTS:
Marlo Davis, with the Rapides Parish Office of Community Services (OCS) was the first witness to testify on January 11, 2006, the first day of trial. As part of her duties and in response to a call around 4:00 p.m., Ms. Davis went to the Huey P. Long Medical Center on June 26, 2002. At the hospital, Ms. Davis met with a social worker who informed her of the two-year-old victim, Christopher Griffin's, diagnosis and prognosis.[1] Ms. Davis then called the Pineville Police Department (PPD) to report the child's injuries, and then spoke to Judge Johnson for an instanter order placing both Christopher and his brother in the State's custody.
Ms. Davis stated that she interviewed Christi Griffin, Christopher's mother, and spoke with Officer Alvarado and Lieutenant Doug Washington from the PPD when they arrived at the hospital. Ms. Davis observed Christopher before the doctors rushed him to x-ray. She stated that he was limp, and that his face was red.
Officer Billie Alvarado testified as the State's second witness. He stated that he went to the Huey P. Long Medical center on June 26, 2002, in response to a child abuse complaint, arriving around 4:53 p.m. Officer Alvarado spoke to Ms. Davis and observed the child being worked on by doctors and nurses.
Officer Alvarado stated that Christopher was lying on his back with his head turned to the left and blood coming out of his mouth, with the child's head swollen, and the area around child's right eye black.
Lieutenant Doug Washington was the State's third witness. He testified that on June 26, 2002, Officer Alvarado called him to the Huey P. Long Medical Center. After he arrived at the hospital, Lieutenant Washington spoke with Officer Alvarado and Dr. Tenaglia. Lieutenant Washington then viewed and photographed Christopher.
Lieutenant Washington next spoke with Ms. Davis, asked Ms. Griffin to contact him at the PPD for a follow-up interview, and summoned Sergeant Fletcher to assist in locating Defendant, who had left the hospital prior to Lieutenant Washington's arrival. Once he and Sergeant Fletcher contacted Defendant, Lieutenant Washington requested Defendant contact him at the PPD. Lieutenant Washington also interviewed Defendant's mother, Nora Mims, and sister, Yasmine Batts.
Lieutenant Washington also testified that Ms. Mims, Ms. Batts, Defendant, Detective Joe Simon, and Detective Keith McLain all accompanied him to Defendant's residence so he could take photographs. In the bathroom, Lieutenant Washington found indentations in the sheetrock at a child's head-level above the child's potty. Lieutenant Washington next returned to the PPD, where he interviewed Defendant.
Lieutenant Washington's investigation continued into the next day. On June 27, 2002, Lieutenant Washington called the LSU Shreveport Medical Center, where Christopher had been sent the previous day, and spoke to Dr. Lynn Lloyd, who was the pediatric doctor in charge. After speaking with the doctor, Lieutenant Washington contacted the OCS police officer Jerry Cearly at the Alexandria Police Department (APD). Lieutenant Washington's investigation concluded for the day after the Rapides Parish Advocacy Center interviewed Christopher's four-year-old brother at the APD.
Lieutenant Washington testified that his investigation continued on June 28, 2002, when he again contacted the LSU Shreveport Medical center to follow up on Christopher's condition. The following morning, Lieutenant Washington and his supervisor, Detective Paul, met with Ms. Griffin at the PPD, and she informed them that Christopher died at 5:00 that morning.
Lieutenant Washington explained that he then conducted a second interview with Ms. Griffin and received permission for a second search. Following the search, Lieutenant Washington seized a white snake skin belt belonging to Defendant and continued his investigation by interviewing Todd Mims, Defendant's brother, and Jerry Williams, a friend of the family.
Lieutenant Washington conducted a second interview with Defendant on August 29, 2002. Lieutenant Washington related that, after Defendant waived his Miranda rights, Defendant related the following account of events:
Mr. Mims stated that anything possibly could have happened to the baby because he was flagged down by Jerry Williams, a friend of the family, and he was advised that the baby the baby was giving the mother a hard time. He was he became he said he was upset about it, came home and immediately disciplined the child the kids because they would not listen to the mother.
He stated that Jerry advised him that the babies were playing in the rain the mother made the baby go out in the rain and kept them out there because they were getting on her nerves. He came home and he disciplined them according to his methods.
Lieutenant Washington explained that Defendant's method of discipline involved spanking the children with his belt and putting them in a corner. The children were four and two years of age.
Lieutenant Washington recalled that Defendant told him that there were no bruises on Christopher's face when Defendant took him into the bathroom to give the child a bath. Defendant also stated that he put Christopher in two or three inches of bath water before leaving him alone for three to five minutes, and that no one, except he and Christopher, went into the bathroom during that time.
Further, according to Lieutenant Washington, Defendant told him that Christopher was lying lifelessly on his back when he returned to the bathroom. Defendant additionally reported lifting Christopher and taking him to Ms. Griffin.
Finally, Lieutenant Washington testified that Defendant admitted to him that he and Ms. Griffin had been arguing over how Defendant disciplined the children. Lieutenant Washington reported Defendant was five feet eight inches tall, weighed between 135 and 145 pounds, and had a muscular build.
Defendant's statement given to Lieutenant Washington set forth Defendant's version of events. Defendant stated that he had been told that Ms. Griffin had put the children out on the steps, but when he arrived home the children were on the couch. Defendant spanked Christopher's older brother on the backside with a belt and put him in a corner. Because Christopher had vomited on himself, Defendant instructed Christopher to go into the bathroom; Christopher complied. Defendant followed Christopher into the bathroom after he argued with Ms. Griffin.
In his statement, Defendant revealed that he had also spanked Christopher on the backside with a belt once they were in the bathroom. After two or three blows, Defendant stopped hitting Christopher with the belt; instead, Defendant began using his open hand to strike Christopher on his buttocks and the back of his head. Defendant claimed that he used his hand because OCS had told him he would go to jail if he bruised the children. When Defendant hit Christopher's head, Christopher fell forward and hit his head on the side of the bathtub. Defendant asserted that Christopher was conscious and had stopped crying when Defendant put him in the bathtub. Defendant stated that he left Christopher in the bathtub and went to argue with Ms. Griffin, and that when Defendant returned to the bathroom minutes later, Christopher was unconscious.
Mr. Williams was the fifth witness to testify at trial.[2] On June 26, 2002, Defendant's aunt, Bridget Joseph, asked Mr. Williams to check on Defendant. In accordance with Ms. Joseph's request, Mr. Williams went to Defendant's home. Defendant was not present, but Ms. Griffin, Ms. Mims, and Defendant's sister, Candace, were there with Christopher and his brother. Mr. Williams' stated that his visit lasted twenty to thirty minutes, and throughout his visit, the two boys loudly whined and cried in the front room. Ms. Griffin became angry, hollered at the boys, and hit Christopher on the side of his head. According to Mr. Williams, the blow caused Christopher to move back a little, but he was still on his feet walking around. Mr. Williams stated he left when Ms. Griffin put the boys outside on the front steps and locked them outside in the rain.
Mr. Williams explained that, after he arrived home, he told Ms. Joseph what had happened during his visit. Later, Mr. Williams saw Defendant who, at the time, was on his way home from work. Mr. Williams told Defendant what had happened and stated Defendant needed to check on the children because they had been locked out in the rain.
Ms. Griffin testified as the State's sixth witness. At the time of trial, Ms. Griffin had two children, a boy age eight and a girl age two. Ms. Griffin began a relationship with Defendant in January 2002. In March 2002, Ms. Griffin and her sons voluntarily moved out of her mother's house and moved in with Defendant, Ms. Mims,, and Defendant's younger brother.
Ms. Griffin recalled waking around 10:00 a.m. on June 26, 2002. When she got up, Ms. Griffin's two sons, Ms. Mims, Ms. Batts, and Ms. Batt's children were all present in the house. Christopher and his older brother were watching television in the living room. Ms. Griffin sat with her sons and rocked Christopher to sleep because he was not acting like himself. According to Ms. Griffin Christopher whined and fussed, looked as if he were sick or sleepy, but was having trouble falling asleep. When Christopher awoke, he was jumping and crying. Ms. Griffin gave Christopher some water, but he vomited after drinking.
Ms. Griffin stated she changed Christopher's shirt and sat with him on the couch while he dozed in and out of sleep. Ms. Griffin testified that Mr. Williams had visited during the day, staying fifteen to twenty minutes. Ms. Griffin said that, during Mr. Williams's visit, the boys continued to watch television from the couch. Ms. Griffin stayed on the couch the rest of the day.
Ms. Griffin explained that, when Defendant arrived home from work that afternoon, he was in a rage. Defendant stripped off his shirt and went into the living room yelling, "I can't even leave this mother f___ing house without having to come back and hearing [sic] things, that y'all don't know how to behave." Ms. Griffin stated that Defendant grabbed her older son off the couch, spanked him, and put him in the corner, and then Defendant yanked Christopher, who had been sleeping, "off the couch by his arm and threw him in the corner." During her testimony, Ms. Griffin asserted the children had not been misbehaving that day.
Ms. Griffin testified Christopher bumped his head on the television, fell to his knees, and vomited when Defendant slung him into the corner. Ms. Griffin began yelling at Defendant, but he did not stop. She stated that he was out of control.
Ms. Griffin next stated that because Christopher vomited on his clothing, Defendant yelled for him to go into the bathroom to take a bath. From her bedroom, Ms. Griffin heard Defendant whipping Christopher, Christopher screaming, and water running into the bathtub. Ms. Griffin yelled at Defendant, who did not listen, so Ms. Griffin, deciding they both needed time to calm down, went outside and sat on the back steps. Ms. Griffin stated that she heard Defendant stop whipping Christopher, Christopher stop crying, and the bathroom door close. Next, she recalled that Defendant called out to her, saying that something was wrong with Christopher. Defendant carried Christopher out of the bathroom and told her Christopher had fallen while he was in the bathtub.
Ms. Griffin explained that she told Defendant to take him to the hospital. Ms. Griffin testified that she sat in the back with Christopher and talked to him while Defendant drove. Ms. Griffin stated that she yelled at Defendant and demanded to know what had happened, but Defendant did not give her a straight answer.
At the hospital, Ms. Griffin had Defendant take Christopher into the emergency room and followed behind. Ms. Griffin could not carry Christopher, as she was weak from multiple sclerosis. She stated that Christopher's right eye had already been bruised that morning, but he did not have any other bruising before he went into the bathroom.
Ms. Griffin denied ever spanking her children and said she never had any behavioral problems from them. Ms. Griffin confirmed she pled guilty to negligent homicide based on the circumstances of Christopher's death.
On January 12, 2006, the State called Dr. Elizabeth Tenaglia Azel to testify as the prosecution's seventh witness. The parties stipulated that Dr. Azel was an expert in emergency room medicine. Dr. Azel testified that she worked at Huey P. Long Medical Center on June 26, 2002, and as part of her duties, she treated Christopher Griffin. Dr. Azel stated that she was standing near the ambulance ramp when a man walked in carrying a child. She recalled that the man said the child had passed out while in the bathtub. Dr. Azel had no further contact with the man, who identified himself as the mother's boyfriend.
Dr. Azel reported that emergency personnel began immediate emergency treatment. The child had diminished consciousness, no verbal skill, extensive bruising over his forehead and around his eyes, and was posturing-extending his arms and legs in an extensive pattern, thus indicating brain injury. The emergency personnel gave him oxygen and eventually intubated him. The medical staff performed a CT scan, which revealed: that intracranial blood was located where it did not belong, that Christopher's brain had shifted over to one side because of the swelling, and that Christopher's brain was compressed against the skull.
Dr. Azel asserted that Christopher's bruising would not have been the result of a single blow to the head. Christopher's bruising was also inconsistent with a thirtytwo-inch tall individual falling in the bathtub. Further, Dr. Azel stated that the intracranial bleeding was also inconsistent with a fall in the bathtub. According to
Dr. Azel's experience, the injuries Christopher had would have been caused by significant and sometimes repetitive force.
Dr. Collie Trant, who qualified as an expert in forensic pathology with a specialty in cases involving children, testified as the State's final witness. Dr. Trant received and examined glass slides of tissue and blood samples taken from Christopher, a packet of photographs of Christopher (including autopsy pictures), and all of Christopher's medical records, including the autopsy report. Based on the records, Dr. Trant concluded Christopher died from "shaken baby impact shaking syndrome."
Dr. Trant explained shaken baby impact shaking syndrome meant that, in addition to Christopher being severely shaken in a manner causing his head to move back and forth, he was also hit on the head several times with a blunt object around or during that period of shaking. Because Christopher survived more than four hours after his bruises were inflicted, it usually would not be possible to determine when his bruises had been inflicted due to swelling; however, because the emergency room doctors put Christopher on steroids to reduce inflamation, Dr. Trant was able to determine that Christopher had sustained his injuries less than four hours before being placed on the steroids.
Dr. Trant related that Christopher had severe bruises on the back of his scalp; the underlying tissue had been pulped. Christopher also had a subdural hematoma over the right cerebral hemisphere of his brain, severe swelling of the brain, and a hemorrhage into his eyes when he was presented to the hospital. Dr. Trant opined that Christopher would not have been able to walk with these injuries. So, according to Dr. Trant, if Christopher had walked into the bathroom before losing consciousness, as had been stated by Defendant, he did not have the injuries when he entered the bathroom. Additionally, Dr. Trant stated that Christopher's injuries were not consistent with a fall in the bathtub.
Dr. Trant reported Christopher was two feet and eight inches tall. Because the bruises on Christopher's head overlapped and blended into one large bruise, Dr. Trant could not determine the number of individual blows that caused the trauma, however, Dr. Trant guessed it could have been twenty blows. Dr. Trant said a child Christopher's size could not have inflicted all or even most of the injuries on himself.
On cross-examination, Dr. Trant explained that the retinal hemorrhages had been caused by the shaking because the lack of damage to the fragile bones around the eye indicated the bleeding had not been caused by a blow. Although vomiting can be a symptom of brain swelling, according to Dr. Trant, Christopher's vomiting, irritability, and jumping during sleep earlier in the day would not have been an indication he was suffering from shaken baby syndrome. Finally, Dr. Trant testified that the swelling in Christopher's brain caused brain death, that Christopher's injuries would have incapacitated him within ten minutes, and that, individually, either the blunt force or the shaking could have caused the brain trauma, as a single blow could have been responsible for killing Christopher.
Defendant called his mother, Ms. Mims, as his first witness. Ms. Mims and her daughter, Ms. Batts, were living with Defendant and Ms. Griffin at the time of the incident. Ms. Mims stated that she never saw either Defendant or Ms. Griffin discipline the Griffin children, nor did she see Ms. Griffin discipline the children that day.
The second witness for the defense was Ms. Batts. Ms. Batts testified that she was present all day at the location of the incident, but she did not see anything. Ms. Batts recalled that Defendant came in from work, greeted everyone, and then went with the children into the back of the house, where Ms. Griffin was already located. Ms. Batts stated that she saw, on approximately ten occasions, Ms. Griffin discipline her children by whipping them with a belt when they did something wrong.
On cross-examination, Ms. Batts stated she had never seen Defendant spank the children. Rather, she stated that he disciplined them by putting them on their knees in the corner. Ms. Batts then testified that she overheard Defendant and Ms. Griffin arguing in the back of the house.
Ms. Joseph was the last defense witness. Ms. Joseph stated that Defendant and Ms. Griffin had lived with her for approximately two months. During that time, Ms. Joseph observed Defendant discipline the children by yelling at them and putting them in a corner, and, once, used a switch on their legs. Ms. Joseph said she saw Ms. Griffin discipline the children on at least three occasions with a cable cord from the VCR. Ms. Joseph said that she had evicted Ms. Griffin after they argued about the use of the cord. Ms. Joseph explained that, on the last occasion, Ms. Griffin beat the children so hard that Ms. Joseph's next door neighbor overheard and intervened. Ms. Joseph additionally asserted that she had seen Ms. Griffin strike the oldest boy with her fist. Ms. Joseph denied ever seeing Ms. Griffin strike Christopher with her fist.
ASSIGNMENT OF ERROR NO. 1:
Defendant argues there was insufficient evidence to support his conviction as, although he made a statement to police indicating that he accepted the blame for the death and admitted that he had struck the child, according to the medical testimony, the state did not prove that the injuries that he inflicted led to the victim's death. The State responds that, based on the evidence presented at trial, a rational trier of fact could have concluded the prosecution proved its case beyond a reasonable doubt.
In order to determine sufficiency of the evidence, the evidence is viewed in the light most favorable to the prosecution in order to determine whether a rational factfinder could have determined that the State proved the elements of the offense beyond a reasonable doubt:
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.
State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So. 2d 1280, 1285-86 (citations omitted). "The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La.R.S. 15:438.
In 2002, the pertinent portion of the statute prohibiting second degree murder stated the following:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
....
(b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.
La.R.S. 14:30.1.
The trial court instructed the jury in both specific intent and cruelty to juveniles. In 2002, cruelty to juveniles included "the intentional . . . mistreatment . . ., by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child." La.R.S. 14:93. "The term `intentional' within the meaning of this statute, requires general criminal intent to cause a child unjustifiable pain and suffering," and "mistreatment" means abuse. State v. Porter, 99-1722, p. 15 (La.App. 3 Cir. 5/3/00), 761 So. 2d 115, 123.
When viewed in the light most favorable to the prosecution, the evidence presented at trial shows that, prior to Defendant's arrival home on the date of the incident, two-year-old Christopher exhibited symptoms of a stomach virus and had a black eye; otherwise, Christopher was ambulatory and able to speak. Once Defendant, who was in his twenties at the time of the incident, arrived home from work, no one but Defendant interacted with Christopher. Defendant, who was angry, grabbed Christopher by his arm and slung him into the corner; in doing so, Defendant caused Christopher to bump his head.
Defendant then had Christopher walk into the bathroom, so Defendant could bathe him. Once in the bathroom, Defendant not only spanked Christopher with a belt but also hit Christopher in the head with his hand. Christopher responded to the blows by screaming. Shortly thereafter, Christopher became unconscious and subsequently died from his injuries, which included severe bruising to the back of his head and bruising on his forehead.
The blows to the back of Christopher's head were so severe they pulped the tissue under the scalp. The repeated or severe blows also caused intracranial swelling that shifted and compressed Christopher's brain. The evidence further showed that, after the injuries had been inflicted, Christopher would not have been able to walk or talk. Christopher would have been unconscious within ten minutes of receiving his injuries.
Although Defendant claimed Christopher had hit the front or side of his head on the bathtub, the most severe injuries were to the back of Christopher's head, and those injuries were inconsistent with a fall. Additionally, according to the medical testimony, Christopher's being severely shaken within a short time of the blows contributed to his death.
In State v. Koon, 31,177 (La.App. 2 Cir. 2/24/99), 730 So. 2d 503, our second circuit examined a second degree murder case wherein the defendant claimed the injuries to the child had been caused during a fall. The defendant told the victim's mother that the boy had fallen out of bed. Medical expert testimony at trial showed that the boy died from skull fractures before he reached the hospital, that the head injuries were caused by multiple blows by a blunt instrument to the head, and that the fatal injuries were inconsistent with a fall from bed because only a thirty to fifty foot fall could have crushed the child's head in a similar manner. Moreover, the victim showed evidence of prior abuse. Based on the evidence presented, the second circuit affirmed the defendant's second degree murder conviction.
In State v. Miller, 06-595 (La.App. 3 Cir. 9/27/06), 940 So. 2d 864, writ denied, 06-2577 (La. 5/11/07), 955 So. 2d 1278, this court examined another case involving shaken baby syndrome. In Miller, the four-year-old victim died from non-accidental brain trauma consistent with abuse by violent shaking. Like this case, the child had behaved normally during the days leading up to her death, and exhibited no symptoms until she was alone in her room with the defendant. Again like this case before us, the medical testimony indicated that the symptoms of the abuse were severe enough that they would have manifested immediately; thus, the child did not receive her injuries until after she had completed the activities reported shortly before her death. In Miller, this court found sufficient evidence to support the defendant's second degree murder conviction and further noted there had been evidence presented to show the victim had previously been physically abused.
Based on the evidence presented at trial, when viewed in the light most favorable to the prosecution, a rational trier of fact could have found Defendant killed Christopher either by intentionally inflicting great bodily harm or while perpetrating cruelty to a juvenile. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2:
Defendant next urges he was not competent to assist in his defense, arguing that the trial court abused its discretion in determining that Mr. Mims, a mentally challenged man with an I.Q. of 60, was competent to stand trial for second degree murder in light of the strongly worded opinion of the psychiatrist who stated that Mr. Mims was not competent to proceed. Defendant further contends the trial court erred in accepting the opinion of the sanity commission psychologist because the opinion was conditioned on so many caveats that it was obvious Defendant was unable to assist in his defense.
The State argues that the record shows the information presented at the May 31, 2005, competency hearing supports the trial court's determination that Defendant was competent to assist in his defense. As such, the State contends that the trial court did not abuse its discretion.
Louisiana's law presumes sanity. State v. Ellis, 42,520 (La.App. 2 Cir. 9/26/07), 966 So. 2d 139, writ denied, 07-2190 (La. 4/4/08), 978 So. 2d 325.
The defendant bears the burden of proving his incapacity to stand trial. However, the burden is preponderance of the evidence and not proof beyond a reasonable doubt. In any event, the ultimate determination regarding competency is within the discretion of the trial court, and the reviewing court should not reverse that finding absent an abuse of that discretion.
State v. Cox, 07-774, p. 18 (La.App. 3 Cir. 1/30/08), 974 So. 2d 891, 903, reversed on other grounds, 08-492 (La. 1/21/09), ___ So.2d ____.[3] (citations omitted). "Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." La.Code Crim.P. art. 641.
The twofold test of mental capacity to stand trial under this article is: (1) whether the accused fully understands the consequences of the proceedings; and, (2) whether he has the ability to assist in his defense by consultation with counsel. A defendant can be incompetent in this sense even though free of psychosis, oriented as to time and place and aware of his surroundings. Being mentally retarded or of subnormal intelligence is not in itself proof of incapacity. However, when substandard mental ability combines with other problems to prevent a defendant from rationally assisting his counsel, a fair trial cannot proceed.
Where there is conflicting medical testimony, a trial judge's determination of defendant's capacity to stand trial is entitled to great weight.
State v. Williams, 381 So. 2d 439, 440 (La.1980) (citations omitted).
Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused's ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
State v. Bennett, 345 So. 2d 1129, 1138 (La.1977).
Dr. Vijaya L. Boppana, certified in psychiatry, issued a sanity commission report on Defendant after interviewing him on January 24, 2005. Dr. Boppana wrote that Defendant understood his warnings that anything said to Dr. Boppana could be used against Defendant because Dr. Boppana was working for the court and not for Defendant. After evaluating Defendant, Dr. Boppana concluded that Defendant's score on the Georgia Court Competency Test, seventy, fell in the range indicating he was competent to stand trial. Defendant was aware of the seriousness of the charges against him, understood the consequences of the possible verdicts in the case, could manage his behavior at trial, and could tolerate the stress from the trial proceedings, but he did not understand legal proceedings at that time.
Psychologist Dr. John C. Simoneaux issued a more detailed report after he examined Defendant on February 14, 2005. Dr. Simoneaux reported Defendant had an I.Q. of sixty and speculated that Defendant was mildly mentally retarded. Although Defendant attempted to present additional mental illness, Dr. Simoneaux concluded Defendant was malingering and suffered no mental illness apart from retardation. Defendant was generally aware of the legal situation, but his understanding was very basic. Dr. Simoneaux determined Defendant would require "significant assistance from his attorney and from supportive family members in order to fully understand his current circumstance[s]." Dr. Simoneaux found Defendant's score of thirty-four on the Georgia Court Competency Test, when compared with his previous score of sixty-eight and his level of cognitive functioning, confirmed Defendant was malingering.
Dr. Simoneaux opined it was arguable whether Defendant's mental retardation would significantly impact his awareness of his legal situation and his ability to assist in his defense. Defendant understood and appreciated the nature and the seriousness of the charges, as this was evidenced by Defendant's malingering in an attempt to avoid incarceration. Though Defendant only had a basic understanding of the defenses available to him, he clearly understood the distinction between a guilty and a not guilty plea as well as the consequences of both pleas. Defendant did not completely understand his legal rights, but he would be able to understand them if they were carefully and simply explained. Defendant also clearly understood the possible verdicts and the consequences of conviction.
Dr. Simoneaux believed Defendant was capable of recalling and relating facts concerning his actions and whereabouts, but he may be unwilling to cooperate. Defendant would also be able to assist counsel in locating and examining relevant witnesses, to maintain a consistent defense if properly motivated, and to make simple decisions in response to well-explained alternatives. Defendant's mental retardation would compromise his perceptions of witness testimony and cause him some difficulty in informing his attorney about distortions or misstatements made by the witnesses. If Defendant testified on his own behalf, it would be necessary to make sure Defendant understood each question before he answered. Defendant's mental condition would not deteriorate as a result of trial stress. Based on the stated findings and caveats, Dr. Simoneaux concluded Defendant would be able to assist in his defense.
At the May 31, 2005, sanity commission hearing, the trial court considered the reports submitted by both Dr. Boppana and Dr. Simoneaux. The court found Defendant to be "competent, specifically since Dr. Simoneaux says he would be able to assist counsel in locating and examining any relevant witnesses, and he should be able to maintain a consistent defense if properly . . . motivated."
Based on the findings of both Dr. Boppana and Dr. Simoneaux, we find that the trial court did not abuse its discretion in determining Defendant was competent to proceed to trial, which was held seven months after the sanity hearing. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3:
Finally, Defendant asserts the trial court should not have granted the State's Equal Protection objections. Defendant argues that the trial court erred in concluding that the State made a prima facia showing of gender discrimination by the defense in jury selection, and erred in rejecting defense counsel's gender-neutral reasons for using peremptory challenges to remove two female prospective jurors. Defendant urges that the reasons he gave for using peremptory strikes against the two women who were subsequently reinstated to the jury, Ms. Gibbs and Ms. Luczak, were gender-neutral and non-pretextual. The defense contends the trial court's rulings violated Defendant's constitutional rights, and, as a result, his conviction and sentence should be overturned, and the case should be remanded for a new trial.
The State responds that its objection arose when the defense used its strikes to remove all of the women remaining on the jury after the strikes by the State and for cause, and Defendant was subsequently unable to give legitimate neutral reasons for striking the two potential jurors. Thus, the State argues that the trial court's ruling was proper.
In Georgia v. McCollum, 505 U.S. 42, 56, 112 S. Ct. 2348 (1992), the United States Supreme Court held that criminal defendants, like the State, were prohibited from violating jurors' rights to equal protection under Amendment XIV of the United States Constitution through the use of peremptory challenges, and the State had standing to preserve the jurors' Equal Protection rights. "Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges." McCollum, 505 U.S. at 59, 112 S.Ct. at 2359.
In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419 (1994), the United States Supreme Court held that gender, like race, is an unconstitutional proxy for bias in determining juror competence and impartiality. Thus, the exercise of peremptory challenges to dismiss potential jurors because of their gender also violates the Equal Protection Clause of the Fourteenth Amendment. Moreover, "[a]ll persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination." J.E.B., 511 U.S. at 141-42, 114 S.Ct. at 1428. "When an explanation is required, it need not rise to the level of a `for cause' challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual." J.E.B., 511 U.S. at 145, 114 S.Ct. at 1430. However, "strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext." J.E.B., 511 U.S. at 143, 114 S.Ct. at 1429.
The Supreme Court recently re-examined the application of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) in Snyder v. Louisiana, ___ U.S. ___, 128 S. Ct. 1203 (2008). Under Batson, the party alleging discrimination "must make a prima facie showing that a peremptory challenge has been exercised on the basis of race;" next, the burden shifts to the opposing party to "offer a race-neutral basis for striking the juror in question;" finally, the trial court must determine whether the party alleging discrimination has shown purposeful discrimination. Snyder, 128 S.Ct. at 1207 (quoting Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317 (2005)).
The Snyder court determined that, "[o]n appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous" because the trial court was in a position to make first-hand observations of the best evidence of discriminatory intent: the demeanor of party employing the peremptory challenge as well as the demeanor of the juror being challenged. Snyder, 128 S.Ct. at 1207-08. Thus, the trial court is in a better position to determine the credibility of the race-neutral explanation. Snyder, 128 S. Ct. 1203.
The U.S. Supreme Court held that the race-neutral reason stated must be both convincing and plausible. Snyder, 128 S. Ct. 1203. If the race-neutral explanation also applies to another potential juror or multiple other potential jurors, but the challenging party declines to peremptorily challenge the other(s), then the challenging party's race-neutral explanation is insincere. Snyder, 128 S. Ct. 1203. Such a pretextual explanation "naturally gives rise to an inference of discriminatory intent." Snyder, 128 S.Ct. at 1212.
"The case law indicates district court decisions on Batson challenges are entitled to deference. This circuit has previously used the `abuse of discretion' standard on review. State v. Rice, 626 So. 2d 515 (La.App. 3 Cir.1993)." State v. Dugas, 96-49, p. 11 (La.App. 3 Cir. 10/9/96), 683 So. 2d 1253, 1259, writ denied, 96-2652 (La. 4/4/97), 692 So. 2d 417. The United States Supreme Court recently rendered an opinion, on March 31, 2009, holding a trial court's good faith error in denying a defendant's peremptory challenge of a juror does not require an automatic reversal of that defendant's conviction; a harmless error analysis applies. Rivera v. Illinois, 556 U.S. ___, 129 S. Ct. 1446 (2009).[4] If all jurors are unbiased and qualified, there has been no due process violation. Id.
After voir dire concluded and the newly-impaneled jury went home, the State objected to the defense's discriminatory use of peremptory challenges:
BY MR. BUCK: [COUNSEL FOR THE STATE]
I think we have I have an objection to make, your Honor, to [the] exercise [of] the defendant's challenges, preemptory [sic] exceptions. He excluded every female on this jury.
....
BY MS. METOYER: [COUNSEL FOR THE STATE]
He back striked the one on the first, but there's only there's actually only, uh, one female on the panel, um, that was kept. Every other single the State cut two females out of all the females on the panel. Uh, actually, when you start talking about the jury panel, the 12 and not the alternate, the State cut one female. Every other female that was cut was cut by the defense. Regardless to, um, their race. It was based upon gender. They were all cut except for one by the defendant.
THE COURT: All right.
BY MR. BUCK:
I think he exercised one challenge against one male, your Honor. THE COURT:
All right. Let the record reflect that if you look at what the defendant turned in I'm going to recite for the record what sex and [names] of everybody: Dave Coaty was a black male; Rhonda Chapman was a white female. This is Panel # 1. Wayne Rodgers white male; Sheila Rhea white female; Tom Jordan white male; Linda Bonin white female; Delores Rideau was a black female; Robert Allen was a white male; Mary Martin was a white female; Barbara Cockerham was a white female; Mable Emmitt was a white female; Norman Land was a white male; Tammi Robichaux was a white I said Tammi Robichaux was a white male.
BY MS. METOYER:
White female.
THE COURT:
All right. Female. Bennie Sauseda was a white male; Gloria Carter was a white [fe]male; Irma Leach was a black female; Sherry Kearns was a white female. Out of this group, the State, uh, filed preemptory [sic] challenges against Mable Emmitt Juror # 12 who had no business being on the jury. She was not going to mentally be able to, uh, actually she could have I should have excused her and filled that box. I didn't realize it until late. Bennie Sauseda was the other challenge, uh, preemptory [sic] challenge filed by the, uh, State. He was a white male.
The defendant in Panel # 1 excused Sheila Rhea a white female; Linda Bonin a white female; Delores Rideau a black female; so that's three. He did a back strike on Mary Martin who is a white female; that would have been four. Norman Land is a white male; Gloria Carter was a white female. Sherry Kearns was a white female. So out of that seven on Panel # 1, six out of seven were females.
Panel # 2 excused by the State was Marvin Veuleman. He was excused by the State and the defendant, and Latoya Quinney who was a black female. She was excused by the State. So, white male, black female. Excused by the defendant was Lloyd McNeely, a white male; Marvin Veuleman a white male; Janet Thompkins a white female; Doris Gibbs white female; Christine Luczak is a white female; and a Maurine
Dubois who was a white female. So I believe out of all of his challenges, he's had three, three white males three males, nine females. And the State used four two for males, two for females. Do you think that that is a prima fascia [sic] showing?
BY MR. BUCK:
I believe it's a prima fascia [sic] showing. It's intent to strike by gender, your Honor.
Yes, because I think not only that you would have to take it by the order that they are offered in, too. If the Court considers that he struck every female as they came.
BY MS. METOYER:
And then went and back striked...
BY MR. BUCK:
Back striked the only woman he left.
THE COURT:
Well, let's look to see who was selected. We have Dave Coaty who is a male; Wayne Rodgers a male; Tom Jordan a male; Robert Allen a male; Bradford Mason a male. We have Tammi Robichaux that was selected.
[COURT REVIEWS CHALLENGES]
THE COURT:
Do you have whether or not Sherry Kearns was selected by the defendant?
BY MR. BUCK:
She was allowed to, uh, stay, your Honor. She is jur[or] # ...
THE CLERK:
Number 7.
....
THE COURT:
All right. So she was juror # 7, so, there's two females from the first panel that he allowed to remain. . . .
BY MS. METOYER:
Correct, your Honor, I believe those are the only two females because there were three originally, and he back striked one. He cut them all on the second panel. They didn't select any females from the second panel whatsoever.
THE COURT:
Melder is a male; Verzwyvelt is a male; Shane Stokes is a male; Hanes is a male; Jason Wells is a male.
BY MR. BUCK:
Your Honor, I don't have the new case on that, but I believe that it's not enough anymore just to ___. If I allowed, uh, one certain juror or type of juror to stay, um, the Court says you must look a little bit further than that.
BY MR. WILLIAMS: [COUNSEL FOR THE DEFENSE]
Any of y'all know what the new cases say on that, but I believe that all I need is an independent reason to, uh, strike whoever I wanted to strike, that is race neutral.
THE COURT:
All right. Well, let me hear it then.
....
THE COURT:
I'm going to find that there's a pattern, and this is a prima fascia [sic] case, so I want you to explain neu a gender neutral reason why you've excused the people you've excused.
The Louisiana Supreme Court has abided by the three-part test set forth in Batson for determining whether the party objecting to the challenges established a prima facie case of discrimination: (1) the peremptory challenges must be directed at members of a cognizable racial and gender group; (2) the challenges must have been peremptory rather than for cause; and (3) the objecting party must show circumstances sufficient to create an inference that the peremptory challenge was used to strike the venire person based on his membership in that cognizable group. State v. Duncan, 99-2615(La. 10/16/01), 802 So. 2d 533, cert. denied, 536 U.S. 907, 122 S. Ct. 2362 (2002).
Under La.Code Crim.P. art. 799, each party had twelve peremptory challenges in the instant case. The record shows that Defendant used all twelve of his peremptory challenges to challenge three males and nine females. Thus, we find that the three to one ratio of women to men challenged by Defendant supports the trial court's conclusion that the State successfully presented a prima facie case of gender discrimination by Defendant. Therefore, the trial court did not abuse its discretion in proceeding to the second step of the Batson test.
The defense then explained its gender-neutral reasons for challenging the female potential jurors; it made the following statements regarding Ms. Gibbs and Ms. Luczak:
THE COURT:
Doris Gibbs?
MS. METOYER:
She's the one that works at Star Tek.
THE COURT:
And her husband works at the VA.
BY MS. METOYER:
Correct.
THE COURT:
Come on, hurry up and think of one.
BY MR. WILLIAMS:
I'm trying to read my writing. I've got that she's a supervisor for Star Tek. That wouldn't be a reason I don't believe. Her brother, uh, committed a crime for worthless checks. There is a little note here I can't figure out what it is.
THE COURT:
Well, she was talking about . . . . it was in Missouri...
BY MR. WILLIAMS:
She asked a lot-I've got here questions, is what I've got written here, which is a lot either she asked a lot of questions, or I had questions about her, so, I cut her.
THE COURT:
All right.
BY MS. METOYER:
Christine Luczak.
THE COURT:
Uh, Christine Luczak the little girl that works at Spirits.
BY MS. METOYER:
Single with no children.
BY MR. WILLIAMS:
That's right. She's still attractive, and I didn't want my jurors distracted.
THE COURT:
Are you serious?
BY MR. WILLIAMS:
Yes, I'm serious. It's a reasonable reason. It's a race, gender and true reason.
BY MR. BUCK:
It must be a gender reason. You kept all of the good-looking guys.
BY MR. WILLIAMS:
I don't know of any good-looking guys.
....
BY MR. BUCK:
By striking all of the women you don't have to worry about BY MR. WILLIAMS:
I will be more than happy to bring Christine Luczak back.
BY MR. BUCK:
Okay, then.
The trial court found the defense failed to state adequate gender-neutral reasons for both Ms. Gibbs and Ms. Luczak. Further, the trial court found that Ms. Gibbs's having a brother arrested for issuing worthless checks in Missouri was not a reason to challenge Ms. Gibbs. Additionally, the court determined the defense could not challenge a woman because she was too attractive. Based on its findings, the trial court granted the State's motions as to Ms. Gibbs and Ms. Luczak. Defendant objected to the inclusion of both women on the jury.
On January 11, 2006, prior to opening statements, the trial court identified the resulting jurors and alternate juror for the record. Following the reinstatement of Ms. Gibbs to the jury, the jurors in Defendant's trial consisted of nine men and three women, with Ms. Luczak served as the alternate juror.
The defense asserts the trial court should have accepted its gender-neutral reasons for challenging Ms. Gibbs and Ms. Luczak.
If a race-neutral [or gender neutral] reason is given, the trial court must then decide whether the challenger has proven purposeful discrimination. Whether there has been intentional racial [or gender] discrimination is a question of fact. The decisive question in the analysis is whether the race-neutral [or gender neutral] reason should be believed. A reviewing court owes the trial court's evaluations of discriminatory intent great deference and should not reverse unless the evaluations are clearly erroneous.
State v. Scott, 04-1312, p. 44 (1/19/06), 921 So. 2d 904, 937, cert. denied, 549 U.S. 858, 127 S. Ct. 137 (2006) (citations omitted).[5]
The basis Defendant gave for striking Ms. Gibbs was, ultimately, her brother's being arrested for issuing worthless checks. Based on the trial court's statement, "Come on, hurry up and think of one," the trial court seemed to believe defense counsel was struggling to invent a gender-neutral reason for challenging Ms. Gibbs. The subsequent verbal exchange showed defense counsel eventually read, or attempted to read, all of the notes he had taken on Ms. Gibbs in an attempt to allege a gender-neutral basis for the peremptory challenge.
The defense's stated reasons for the challenge do not automatically signal prejudice or impartiality on Ms. Gibbs' behalf, and Defendant did not explain why Ms. Gibbs's brother's arrest for an unrelated, nonviolent crime in Missouri would indicate prejudice. The record shows Ms. Gibbs specifically said her brother's arrest would not affect her ability to be fair and impartial. In contrast, both Mr. Hanes and Mr. Melder went unchallenged after they stated they, personally, had both been charged with aggravated assault though the charges had subsequently been dismissed.
The defense also stated that one of its reasons for challenging Ms. Gibbs was either it had questions about her for some reason it did not recollect or she asked a lot of questions. The record before this court shows that Ms. Gibbs did not ask questions during voir dire. Hence, Defendant's gender-neutral reasons for challenging Ms. Gibbs were pretext, i.e. they were not related to the case and neither convincing nor plausible. Thus, we find that the trial court did not abuse its discretion when it granted the State's equal protection objection insofar as it applied to Ms. Gibbs.
The reason Defendant gave for challenging Ms. Luczak was that her attractiveness would distract the other jurors. At the time of the equal protection objection, the jury consisted of ten men, two women, and one male alternate juror. We find that, under those circumstances, challenging a female prospective juror because her beauty would be distracting to the other jurors, who were mostly male, is not gender-neutral. This is reinforced by the information derived from the State's response to Defendant's explanation; the prosecution stated for the record that the defense had failed to challenge any of the attractive male prospective jurors. Moreover, the defense also eventually seemed to recognize the inherent gender-bias in its explanation by volunteering to allow Ms. Luczak back onto the jury although it subsequently objected to Ms. Luczak's inclusion as a juror.
Because the defense failed to give a gender-neutral reason for challenging Ms. Luczak, we hold that the trial court also did not abuse its discretion when it granted the State's equal protection objection insofar as it applied to Ms. Luczak. Accordingly, this assignment of error is without merit.
CONCLUSION:
We affirm Defendant's conviction and sentence.
AFFIRMED.
NOTES
[1] Pursuant to La.R.S. 46:1844(W)(1)(a), it is not necessary to preserve the victim's identity as the victim is deceased.
[2] Detective Keith McLain, who testified as the fourth witness for the prosecution, assisted Lieutenant Washington in investigating Christopher's death; however, his testimony did not add any information useful to resolving the assignments of error presented by the defense.
[3] 2009 WL 130278.
[4] 2009 WL 815033. Although the volume number is not indicated on Westlaw, the volume number was obtained from the slip opinion issued by the Supreme Court: "Cite as: 556 U.S. ___ (2009)."
[5] Our supreme court has overruled an unrelated point of law in this case. State v. Dunn, 07-878 (La. 1/25/08), 974 So. 2d 658. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568100/ | 139 F.2d 107 (1943)
COMMISSIONER OF INTERNAL REVENUE
v.
KATZ et al.
No. 8184.
Circuit Court of Appeals, Seventh Circuit.
November 24, 1943.
Samuel O. Clark, Jr., Sewall Key, Helen R. Carloss, N. Barr Miller, and L. W. *108 Post, all of Washington, D. C., for petitioner.
Max Swiren and Herbert Portes, both of Chicago, Ill., for respondents.
Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
This is an appeal by the Commissioner of Internal Revenue from a decision of the Board of Tax Appeals (Tax Court of the United States), finding no deficiency in respondents' income taxes for the year 1937.[1]
On April 5, 1937, Meyer Katz executed four separate written declarations of trust, one each for the benefit of his wife, Helen Katz, and their three children, all of whom were minors during the taxable year, except one who became of age during such year. The trust for the benefit of his wife is not involved in this litigation. The provisions of the trust instruments for each of the children are identical, except for the name of the child specifically designated as the primary beneficiary and the number of corporate shares transferred to each trust. We shall, therefore, as did the Board, consider the trust for the benefit of Stanley Michael Katz. Whatever is said with reference to the trust in his favor is equally applicable to those in favor of the other two children.
For many years prior to the execution of the trusts, Meyer Katz was president of Rival Packing Company and owned one-fourth of its outstanding capital stock. Also prior to the execution of such trusts, he entered into an employment contract with the Company for a term of years upon a fixed salary, plus a percentage of the Company's profits. His compensation under such employment contract amounted to more than $48,000 for 1937 and more than $65,000 for 1938.
The trust instrument expressly recited grantor's desire "to make suitable provision whereby sufficient property may be accumulated for the benefit of my son, Stanley Michael Katz, so that he may, at a future date, be financially independent and capable of caring for himself." The grantor further stated that he would "continue to support, care for and maintain my son out of my individual property and income without regard to, and entirely separate from, the property declared in the trust herein created." At no time since the creation of such trusts, including the taxable year in question, has any of the income therefrom been received by the grantor, nor has any of such income been used for the support, care and maintenance of his children. In accordance with his express intention, grantor has at all times provided for the support, care and maintenance of his children during their minority from his own property and income.
Under the terms of the trust, the grantor was precluded from receiving any portion of the income which was required to be distributed to each child during his or her lifetime. In the event of the death of a child prior to the termination of the trust, the income was to be distributed to the lawful issue of such child, but in case such child died without issue during the life of the trust, the income was to be distributed in equal shares to grantor's wife and children surviving. In this connection, it is provided: "The trustee may, in his discretion, at any time and from time to time, withhold and accumulate any of the net income payable to any of the foregoing beneficiaries and/or apply any or all of such income for the benefit of such beneficiaries." In the event the trust was terminated by a lapse of time or otherwise, all accumulated net income was to be paid to the beneficiaries entitled to share in the distribution of the corpus.
By Par. 10, the trust could be terminated only by delivery to the trustee of a written instrument directing such termination, executed as follows:
"(a) Jointly by myself, and my wife, Helen Katz, until my son, Stanley Michael Katz, reaches the age of twenty-one (21) years;
"(b) Jointly by myself and my son, Stanley Michael Katz, after my son, Stanley Michael Katz, reaches the age of twenty-one (21) years, or after the death of my wife, Helen Katz, whichever should first occur."
Upon grantor's death, the corpus was to be distributed to the respective primary beneficiaries when he or she reached the *109 age of twenty-five years. In the event any primary beneficiary predeceased grantor, the corpus was to be distributed in the same manner as was the income under a similar contingency. In the event that all of grantor's children predeceased him without leaving issue surviving grantor, then the entire corpus was to be distributed to grantor's wife, if she survived him; if not, then the corpus was to be distributed to grantor's heirs-at-law. The agreements, to avoid the rule against perpetuities, set for each of the trusts a maximum duration of twenty-one years after the death of the survivor of grantor, his wife and children.
The agreements designated a successor-trustee, with provision, in case of his inability to serve, for the appointment of such person by grantor's wife and, after her death, by a majority of his children. The agreements concluded with the declaration on the part of the grantor that he held the trust stock "solely for the uses, purposes and trusts aforesaid and not for my own use or benefit."
The contested issue is whether the 1937 income from these three trusts was taxable to the grantor. Petitioner contends that it was, under Secs. 22(a), 166 and 167 of the Revenue Act of 1936, 26 U.S.C.A. Int. Rev.Acts, pages 825, 895.[2] The Commissioner, before the Board, relied solely on Secs. 22(a) and 166, but the Board decided there was no liability under any of the three provisions.
Petitioner, in support of its contention that Sec. 22(a) is applicable, relies almost entirely upon Helvering v. Clifford, 309 U.S. 331, 60 S. Ct. 554, 557, 84 L. Ed. 788, and cases which have followed. We think it would be well near useless to attempt to analyze the cases which have sought to apply or distinguish the doctrine of the Clifford case, and we shall not do so. It appears from such cases that there is some contrariety of opinion as to the extent to which the doctrine of that case should be given effect. It also appears that a decision must depend upon the facts of each case, that is, the terms of the trust instrument, together with all relevant factors shown to exist.
We agree with the Board that the instant case is distinguishable from the Clifford case. True, there are some elements in common, most noticeable of which are the broad powers of management vested in the trustee. Such matters of similarity, however, are of little consequence and certainly not controlling when considered in connection with other provisions, which, in our judgment, clearly remove the instant situation from the rationale of the Clifford case. The trust in Clifford was of short duration, while in the instant case it is long term in character, having an indefinite and at all times unascertainable duration. Of course, the trust duration is not conclusive, but it is a significant circumstance. Retention by the grantor of economic benefit is more readily attributable in a trust of short term duration. Under the circumstances of the Clifford case, conspicuous among which was a short term trust, the court concluded that there was "but a temporary reallocation of income." On the other hand, in the instant case both the income and corpus, due largely to the long term nature and indefinite existence of the trust, amount to a final disposal which may be characterized as permanent. In Clifford, the trust property was to be returned to the donor in a comparatively short period, while here it will never be returned, except on the contingency of revocation, hereinafter discussed in connection with Sec. 166.
The Commissioner contends that the rule in the Clifford case was made applicable to long term trusts in Helvering v. Stuart, 317 U.S. 154, 63 S. Ct. 140, 87 L. Ed. 154. No express holding was made to this effect, but that the Supreme Court held such a view may be inferred from the fact that in the case of the John Stuart trust the court failed to pass upon the applicability of Sec. 22(a) for the reason that the Board as the trier of the facts had made no finding as to its applicability. The most that can be inferred, however, is that the mere fact of a long term trust is not sufficient to preclude the applicability of this section. In addition to the terms of the trust instruments themselves, the Board heard oral testimony which disclosed unquestionably that the trustee administered the trust consistent with the interpretation now sought by respondents. An independent certified public accountant *110 was retained, who kept separate bank accounts, books and records for each trust. All investments were carried in the name of Katz as trustee for the particular trust concerned. Checks were all drawn in the name of the trustee upon the appropriate account. The undistributed income was invested in government bonds.
Furthermore, the Board, among other things, found: "Neither of the three trusts here in question was created as a mere form for the purpose of tax avoidance, but was a genuine, valid, subsisting trust created by petitioner Meyer Katz for the benefit of the specifically named child, with specifically designated contingent beneficiaries other than the petitioner himself. The accumulated net income of the trust was definitely and permanently disposed of by the provisions of the trust instrument, with no possibility of it ever being distributed to petitioner even if the trust were terminated by revocation during petitioner's lifetime." The Board specifically considered whether the grantor "retained such incidents and attributes of ownership that he continued to possess the economic enjoyment of the property or the fruits of such property placed in trust," and found that he did not.
Notwithstanding petitioner's argument to the contrary, we are of the view that such findings must be accepted. We have recently so held in Commissioner v. Armour, 7 Cir., 125 F.2d 467, 471, and in Williamson v. Commissioner, 7 Cir., 132 F.2d 489, 492. See, also, Commissioner v. Betts, 7 Cir., 123 F.2d 534, 539. In the Williamson case, we reviewed the authorities, including those now relied upon by petitioner, and shall not repeat our discussion in this respect. Assuming, however, that we have the right, as urged by petitioner, to substitute our judgment for that of the Board, we think such right should be exercised with extreme caution. In the instant case, we find no reason for so doing; in fact, it is our judgment that the Board correctly determined that the income of the trusts in question was not taxable to respondents under Sec. 22(a).
In support of its position that the trust income is taxable to respondents under Sec. 166, petitioner points out that the wife's power to join the grantor in revoking the trust was operative during the taxable year. Such appears to be the case by reason of the trust provision which provided for termination of the trust by the grantor and his wife until such time as the primary beneficiary reached the age of his or her majority, together with the fact that such beneficiaries were minors during the taxable year. It should be noted, however, that one of such beneficiaries reached the age of her majority August 24, 1937, and after that date her consent would have been required. Under the terms of the trust, the wife, upon the death of one person, would receive a one-third interest in the corpus and income of the trust, and upon the occurrence of additional contingencies could become the sole beneficiary. It is contended by petitioner, as a matter of law, that the wife under such circumstances, had no substantial adverse interest in either the corpus or income therefrom during the taxable year.
Here again we are met with a finding of the Board that the power of revocation was not vested in respondent alone but "was vested in him jointly with designated persons, each of whom had a substantial adverse interest in the corpus as well as in the income of the trust." Presented with the same contention, under a situation in many respects similar to the instant one, this court in Commissioner v. Betts, supra, accepted the findings of the Board of Tax Appeals that certain members of the family, including a wife and mother, had a substantial adverse interest. In so doing, we stated (page 539 of 123 F.2d): "We find no justification for reversal of the finding of the triers of the facts that the beneficiaries were adversely interested. The Board had so held in similar instances in which the commissioner has abided by the rulings. (Citing cases.)"
The fact that those found to have an adverse interest were members of the donor's immediate family wife and children may afford occasion for close scrutiny of the situation, as suggested in Helvering v. Clifford, supra. It has not been held, however, that such fact alone calls for the application of Sec. 166. If family income is to be taxed as a unit it is, so we think, as suggested in Commissioner v. Prouty, 1 Cir., 115 F.2d 331, 336, 133 A.L.R. 977, a matter for Congress rather than the courts. As the law stands now, it is at most only one of the elements to be considered by the trier of the facts. While we are of the view that petitioner's contention with reference to this section presents a close question, yet we are not *111 persuaded that the Board's finding is erroneous or that our judgment should be substituted therefor.
Petitioner, in arguing for the applicability of Sec. 167, relies upon Helvering v. Stuart, 317 U.S. 154, 170, 63 S. Ct. 140, 149, 87 L. Ed. 154, wherein the court, holding the trust income taxable to the grantor, stated "the possibility of the use of the income to relieve the grantor, pro tanto, of his parental obligation is sufficient." In the Stuart case, however, as pointed out, the trustees had no interest adverse to the grantor, but, more important, were expressly authorized by the terms of the trust to devote so much of the net income as "to them shall seem advisable" to the "education, support and maintenance" of the minor. In contrast, the trustees in the instant case are given no such express authority. However, petitioner contends that the language authorizing a trustee to apply any income withheld "for the benefit of such beneficiaries" brings the instant situation within the rule of the Stuart case. If this were the only pertinent language contained in the trust instrument, the argument would appear plausible; however, other provisions must be considered in ascertaining the intent of the donor. As already pointed out, the instrument expressly provides that the grantor would "continue to support, care for and maintain my son out of my individual property and income without regard to, and entirely separate from, the property declared in the trust herein created." The trust agreement also provided that the trust property was to be held by the trustee "solely for the uses, purposes and trusts aforesaid and not for my own use or benefit."
In Helvering v. Stuart, supra, 317 U.S., page 161, 63 S.Ct. page 144, 87 L. Ed. 154, the Court held, "The power to transfer or distribute assets of a trust is essentially a matter of local law." That means in the instant case, as in the Stuart case, the law of Illinois. In other words, the rights and obligations of the trustee must be determined in accordance with the Illinois court decisions and are largely dependent upon the intention of the grantor as manifested in the provisions of the trust instrument. Maguire v. City of Macomb, 293 Ill. 441, 453, 127 N.E. 682; Crow v. Crow, 348 Ill. 241, 244, 180 N.E. 877. Having expressly stated his intention to support his children out of his separate income, it is our view that the grantor imposed upon himself as trustee a binding obligation to refrain from using the trust income for such purpose. Hubbard v. Buddemeier, 328 Ill. 76, 85, 159 N.E. 229. It has frequently been held in Illinois that a trustee shall not use trust income or property for his own benefit, nor may he derive any profit from the trust at the expense of the beneficiary. Jones v. Jones, 124 Ill. 254, 264, 15 N.E. 751; Bennett v. Weber, 323 Ill. 283, 293, 154 N.E. 105; People v. Central Republic Trust Co., 300 Ill.App. 297, 310, 20 N.E.2d 999. The Illinois cases are convincing, so we think, that the trustee in the instant case was without power or authority to expend the trust income for the care, support and maintenance of his minor children.
Petitioner also relies upon Williamson v. Commissioner, supra, a decision of this court, in which we followed Helvering v. Stuart, supra, in holding that the income from the trust there involved was taxable to the grantor under Sec. 167. In that case, however, as was pointed out (page 493 of 132 F.2d), the trustees were given an "uncontrolled discretion" to apply all the net income as they deemed necessary "for the maintenance, support, protection, welfare and financial benefit or security of the wife and minor child." In contrast, there is absent from the instruments of the instant case such specific authority, and furthermore, as pointed out, the intention of the grantor was expressed to the contrary. We agree with the Board that the income was not taxable to respondents under this section.
The decision of the Board of Tax Appeals (now Tax Court) is affirmed.
NOTES
[1] Before the Board, taxes for the year 1938 were also involved. That case was consolidated for hearing and decision with the case for 1937. Appeal was perfected only in the latter, with a court order suspending further proceedings in the former until final decision in the latter.
[2] These provisions have so oft been quoted that it seems unnecessary to do so here. The pertinent portion of the provisions may be found in a footnote to Helvering v. Stuart, 317 U.S. 154, 159, 63 S. Ct. 140, 87 L. Ed. 154. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568126/ | 300 S.W.2d 124 (1957)
The COUNTRY CLUB OF TYLER, TEXAS, Appellant,
v.
R.M. McLAUGHLIN et al., Appellees.
No. 6933.
Court of Civil Appeals of Texas, Texarkana.
February 28, 1957.
Rehearing Denied March 28, 1957.
Johnson & Hathaway, Tyler, for appellant.
Truman Warren, Tyler, for appellees.
FANNING, Justice.
R. M. McLaughlin and seven other minority stockholders of the Country Club of Tyler, Texas, a corporation, sought an injunction against said Corporation and its officers for the purpose of restraining them from conveying the surface of various one-acre tracts of the Corporation's land to each of the individual stockholders pursuant to a certain resolution (and amendments thereto) passed by a majority of the stockholders of the Corporation, and also sought to enjoin the Corporation and its officers from paying from the corporate funds any engineering, surveying, and attorney's fees and any other bills in connection with the attempts of the defendants to convey or dispose of the corporate land, as proposed in said resolution. The trial court, after hearing the evidence, entered judgment permanently enjoining the defendants from conveying any of the land inquestion under the resolution in question and permanently enjoining defendants from paying the expenses complained of. The trial court filed original and additional findings of fact and conclusions of law. Defendants have appealed.
The Country Club of Tyler, Texas, was duly incorporated under the laws of Texas *125 on April 4, 1907, for a term of 50 years. Its charter provides:
"This Association is formed for the purpose of constructing, maintaining and operating club houses, fishing lakes, parks and grounds, for fishing, boating, and other innocent sports, and owning and leasing such land and lakes as may be necessary for such purposes."
The By-laws, Rules and Regulations of the Corporation provided, among other things, the following:
"All members of the club shall have equal rights and privileges on the grounds and waters of the`club.
"Any member desiring to build a boat house or cottage on the club premises shall first get permission and a location from the Board of Directors thru the Secretary and shall make such determination known in writing. The Secretary shall keep a permanent record of such permission and location. No member will be allowed more than 100 feet of lake frontage for cottages or boat house, and all buildings and fences must be confined within two parallel lines running at right angles from the water front, and 100 feet apart. A member must build on location within 12 months or forfeit claim to location.
"Any structure or improvements placed on the property of the club by a member shall be and remain personal property and shall not become a fixture attached to vality (realty) of the club. Such member shall have the privilege of removing such structure or improvements or personal property that they might place on the premises of the club at any time and is retroactive and shall apply to all members now owning or having such personal property on the premises of the club."
Prior to 1943 it appears that the surface of the respective sites of land now occupied by the 31 stockholders were assigned to the occupying stockholders so as to grant them a license to occupy said sites during the existence of the Corporation, although actual title to the land remained in the Corporation. During the course of the intervening years substantial improvements were constructed on the various sites, and some homes exceeding $20,000 in value were built thereon and some of the stockholders kept same as their permanent residences. There was testimony to the effect that the shares of stock and improvements on the sites assigned thereto could not be easily sold because they could not be easily financed due to the fact that the parties did not have title to the land upon which their improvements were placed.
On November 3, 1955, the Corporation held a special meeting of its stockholders for the purpose of conveying the legal title to all of the sites of land then occupied by the stockholders to the respective stockholders and at such meeting it was decided (by a vote of 23 for and 8 against) to convey such tracts and a resolution authorizing such acts and amending its By-laws was passed. Specimen deeds were prepared and on January 17, 1956, the stockholders met at a meeting specially called and passed an amended resolution (by a vote of 23 for to 8 against) authorizing the execution of the deeds in question in accordance with the form of the specimen deeds submitted. This resolution, as amended, among other things, provided: That the action of the Corporation on November 3, 1955, to require that the Rules and Regulations and By-laws of the Club, save and except the 100-foot limitation rule, should be contained in all deeds to the stockholders conveying the surface rights to the sites they then occupied, be rescinded; that the amount of land deeded to each stockholder be restricted to one acre or that fraction then occupied by the stockholder and that the continued use of the land then presently occupied remain the same with option to purchase the land then maintained if it was ever sold; that the stockholders stand the expense of surveying the property and that *126 if the Corporation property was ever partitioned among the stockholders or upon dissolution, the one acre or that fractional part of an acre formerly deeded to the stockholder was to be deducted in any such final settlement, dissolution or partition from the land or assets to which the stockholders would otherwise be entitled.
The trial court, in its original findings of fact, among other things, found: That the Club owned 153.46 acres of land, of which 61.52 acres was under water as a lake; that some of the land was not suitable for building sites and that all of the land suitable for building sites was assigned and occupied by stockholders; that the locations on the East side, South side, and North side of the lake were more valuable than locations on the West side of the lake and that one acre of land on the East side, South side or North side of the lake was more valuable than one acre of land on the West side of the lake; that the Club would not be benefited by the proposed conveyances to the stockholders, other than not having to pay the taxes on the real estate conveyed and the Federal taxes on the dues collected each year; that the corporate stock of the Club as well as the remaining real property of the Club would be diminished in value by the proposed conveyances; that the owners of the shares of stock in the Club would be benefited personally by the conveyances, some more than others; that exclusive of the one acre to be conveyed to them, some of the stockholders had two or more acres of land of the Club under their control and if such members sold the one acre to be conveyed to them by the Club, they would still have other lands of the Club under their control where they could erect another building thereon; that practically all of the stockholders on the West side (who were the plaintiffs in this suit) would not have any land left to them if they should sell the one-acre tract to be conveyed to them by the Club, and could not erect another house at the lake; that some owners of shares of stock in the Club had better and more valuable improvements on the lots assigned to them than others and that most of the improvements on the West side of the lake were of less value than the improvements on other locations on the lake; that when sales of a share of stock had been made that the improvements went with the sale of the stock and the price of the share of stock was controlled by the location and value of the improvements; and that expenses of surveying fees and attorney's fees had been incurred in connection withM the proposed conveyances in question.
The trial court in his original conclusions of law, among other things, concluded to the effect that the proposed conveyances in question and the proposed payment of expenses in connection therewith, would be ultra vires acts of the Corporation, which ought to be enjoined.
The trial court in its additional findings of fact, made at the request of defendants, quoted the amendments to the resolution in question, which amendments are herein before referred to, and further found: That the stock certificates did not have any restrictions as to transferability endorsed on the face thereof; that after the conveyances in question the Corporation would still retain sufficient assets in excess of any judgment for damages that plaintiffs might obtain as a result of the conveyances in question; that the market value of the particular lakesites had been largely determined by the value of the improvements placed thereon by the individual stockholders; that the resolution was passed by a vote of 23 for and 8 against; and that there was no evidence of fraud on the part of the majority stockholders. The trial court in its additional conclusions of law, made at the request of defendants, concluded: That defendant Corporation was a solvent corporation actively functioning and operating; that the intention of the majority stockholders was to continue the existence and operation of the Corporation after the conveyances of the tracts in question; that the Corporation was not prohibited from passing resolutions or taking other *127 action which would prevent or restrict the use of corporate land occupied by the stockholders but not conveyed in the proposed conveyances; and that the By-laws of the defendant Corporation were in effect amended so as to permit a conveyance of land to the stockholders by virtue of the official action of the Corporation through its stockholders at its meeting on November 3, 1955. The trial court partially refused two of defendants' additional requested findings of fact, which matters we deem immaterial and unnecessary to quote or refer to here, and the trial court also refused and denied various other additional and amended findings and conclusions requested by defendants. M Appellants present 25 points wherein they contend that the trial court erred in making its various fact findings and conclusions of law, and in denying and refusing various requested additional and amended findings of`fact and conclusions of law requested by defendants. Appellants in these points contend, among other things, that the proposed acts in question of the Corporation were not ultra vires, that the proposed deeds would be based upon a valuable consideration, and that plaintiffs were not entitled to equitable relief because they failed to show that they did not have an adequate remedy at law.
The eight plaintiff stockholders had locations on the West side of the lake which were less valuable than the locations held by the other 23 stockholders on other portions of the Club property. The 23 stockholders voted for the resolution and the 8 stockholders voted against it. Appellants contend, among other things, that the proposed deeds were supported by a sufficient consideration in that benefit would flow therefrom to the Corporation in the form of a reduced tax load and that the making of such deeds would enhance the market value of the stock and remaining real estate of defendant Corporation, etc. In this connection, appellants also contend that a consideration would flow to the Corporation in that the shares of stock and improvements placed on the locations would be enhanced in value because they could be more easily financed if the stockholders were deeded the surface of the one-acre lots. Under the resolution in question as amended, the stockholders were to be deeded surface rights to the one-acre tracts and the resolution as amended also provided that in event of final settlement, dissolution, or partition of the Corporation property such conveyances should be deducted from the land or assets to which the stockholders would otherwise be entitled. The minerals were excepted and reserved from the proposed conveyances and for a full description of the various terms, provisions, restrictions, covenants and conditions of the deeds in question we respectfully refer to tions, covenants and conditions of the the record.
Article 1320, Vernon's Ann.Civ.St. provides:
"Every private corporation as such has power: * * * To purchase, hold, sell, mortgage or otherwise convey such real estate and personal estate as the purposes of the corporation shall require, and also to take, hold and convey such other property, real, personal, or mixed, or shall be requisite for such corporation to acquire in order to obtain or secure the payment of any indebtedness or liability due, or belonging to, the corporation."
Article 1349, V.A.C.S. provides:
"No corporation, domestic or foreign, doing business in this State, shall employ or use its stock, means, assets or other property, directly or indirectly for any purpose whatever other than to accomplish the legitimate business of its creation, or those purposes otherwise permitted by law."
In 10 Tex.Jur., p. 855, it is stated:
"* * * as to transactions of which not the corporation but some individual officer of the corporation receives the benefit, they are deemed to be without the powers of the corporation. *128 The standpoint taken by the courts is, in fact, that the legislature intended, by its grant of powers to any corporation, that they should be exercised for the benefit of the corporation; and this point of view appears to be justified by the provisions of the general corporation law."
In 10 Tex.Jur., p. 856, it is stated:
"In harmony with the beneficial theory of corporate powers, it is held that, where individual officers or stockholders alone will benefit, the presumption is that the transaction is outside of the powers of the corporation. And where a transaction was shown to have been partly for the benefit of the corporation and partly for the benefit of one of its officers, it was held to prevail against the corporation only to the extent that the corporation received consideration from the transaction. It is further generally held that direct benefit to the corporation must accrue from the transaction, and that it is not sufficient that some indirect benefit will accrue."
In Kirby v. Fitzgerald, Tex.Civ. App., 57 S.W.2d 362, 368, affirmed by Supreme Court in 126 Tex. 411, 89 S.W.2d 408, it is stated:
"Under article 1349 the corporation is inhibited from using its assets for any purpose other than to accomplish the legitimate business of its creation. As we view it the statute enacts a limitation upon the power of the corporation in the matter of its property that it shall not divert its funds from that declared in its charter, and, to do otherwise than permitted, the corporation would be acting beyond the ambit of its corporate powers."
The Supreme Court of Texas in the case of North Side Railway Co., v. Worthington, 88 Tex. 562, 30 S.W. 1055, 1056, in discussing the beneficial theory with respect to corporate acts, and particularly with respect to whether such benefit must be direct to the corporation rather than indirect, states:
"It is contended on behalf of the plaintiffs in error that the execution of the bonds was ultra vires, and that, therefore, they are void. In determining this question, we may recur to a few leading principles. Corporations are the creatures of the law, and they can only exercise such powers as are granted by the law of their creation. An express grant, however, is not necessary. In every express grant there is implied a power to do whatever is necessary or reasonably appropriate to the exercise of the authority expressly conferred. The difficulty arises in any particular case whenever we attempt to determine whether the power of a corporation to do an act can be implied or not. The question has given rise to much litigious controversy and to much conflict of decision. It is not easy to lay down a rule by which the question may be determined; but the following, as announced by a well-known text writer, commends itself, not only as being reasonable in itself, but also as being in accord with the great weight of authority. `Whatever be a company's legitimate business, the company may foster it by all the usual means. But it may not go beyond this; it may not, under the pretext of fostering, entangle itself in proceedings with which it has no legitimate concern. In the next place, the courts have, however, determined that such means shall be direct, not indirect,i. e. that a company shall not enter into engagements, as the rendering of assistance to other undertakings, from which it ancitipates a benefit to itself, not immediately, but mediately by reaction, as it were, from the success of the operations thus encouraged; all such proceedings inevitably tending to breaches of duty on part of the directors, to abandonment of its peculiar objects on part of the corporation.' Green Brice, *129 Ultra Vires, 88. In short, if the means be such as are usually resorted to, and a direct method of accomplishing the purpose of the incorporation, they are within its powers. If they be unusual, and tend in an indirect manner only to promote its interests, they are held to be ultra vires." (Emphasis added.)
Also in W. C. Bowman Lbr. Co. v. Pierson, 110 Tex. 543, 221 S.W. 930, 931, 11 A.L.R. 547, it is stated:
"A corporation formed for the prosecution of a business may foster that business by necessary or appropriate meansthose means which are direct, in their nature related to the objects of the corporation, and by whose employment those objects will be directly furthered. Under the pretense of fostering its own business, or even for that avowed purpose, it can not, however, entangle itself in engagements or enterprises not necessary or reasonably appropriate to the advancement of its interests, from which it will receive only an indirect or remote benefit, if any, and with which therefore, as tested by its charter powers and their objects, it can have no true concern."
We have carefully reviewed the record and are of the opinion that the fact findings of the trial court are sufficiently supported by evidence of probative force.
The proposed conveyances in question we think are clearly unusual for a corporation such as defendant Corporation to attempt to make. These conveyances would benefit the individual stockholders personally in varying and differing degrees but would not directly benefit the corporation itself. The trial court found, upon what we deem to be sufficient evidence, that the Club would not be benefited by the proposed conveyances to the stockholders, other than not having to pay the taxes on the real estate conveyed and the Federal tax on the dues collected each year, and that the corporate stock of the club would be diminished in value by the proposed conveyances. We think the indirect benefit of a reduced tax load and any indirect benefit which the Corporation might receive by virtue of the shares and sites being more easily financed by reason of the conveyances in question, would not constitute sufficient consideration to justify the Corporation's unusual gifts of its lands to its stockholders to the detriment of the Corporation itself on the whole.
We think the trial court correctly concluded that the proposed conveyances in question, together with the proposed payment by the Corporation of engineering, surveying, and attorney's fees and other expenses incurred in connection therewith, would be ultra vires acts of the Corporation.
Under this record we think it is clear that plaintiffs did not have an adequate remedy at law and were entitled to the equitable relief granted by the trial court.
An examination of the record will reveal that several witnesses testified to the effect that plaintiffs would suffer pecuniary damages if the proposed conveyances were made but no witness was able to estimate the extent or amounts of such damages.
In 28 Am.Jur. p. 236, it is stated:
"It is not enough that there is a remedy at law. But the remedy, to preclude injunction, must be certain and reasonably prompt, and as practicable and efficient to the ends of justice and its administration, both in respect of the final relief and the mode of obtaining it, as an injunction would be."
It has also been held that in proper cases a single stockholder could sue a corporation to restrain or annul an ultra vires act. In Cor.Jur., p. 875, it is stated:
"A single stockholder may sue the corporation to restrain or annual an ultra vires act. In other words, a single stockholder may enjoin or obtain relief *130 from the diversion of joint funds to a purpose outside the object for which the corporation was organized. * * * In a proper case, stockholders may apply to a court of equity for a preventive remedy by injunction to restrain those who are administering the affairs of the corporation from doing acts which are ultra vires." (Emphasis added.)
In 24 Tex.Jur., pp. 136-137, it is stated:
"In determining whether an injunction shall issue, the equities of the case are considered; the conveniences and hardships that may result from the granting or refusing of the writ are balanced. The court will consider whether there is a probability of greater damage to the defendant if the writ be granted than to the plaintiff if it be denied. This rule is most frequently applied to temporary injunctions, but it is applicable also to final permanent injunctions." (Emphasis added.)
We think the above-quoted rule of law from Texas Jurisprudence would also sustain the injunction granted by the trial court in this case because: (1) The defendant Corporation itself will not be damaged by being enjoined from giving away its property and expending its funds upon ultra vires transactions; and (2) if the injunction were not granted, the eight plaintiff minority stockholders would be damaged in varying amounts which amounts would be difficult to ascertain with exactitude in a suit or suits at law brought to recover damages.
We conclude that the trial court entered a correct judgment which ought to be affirmed.
Each and all of appellants' various points have been carefully considered and none of them are deemed to present reversible error under this record, and same are respectfully overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568125/ | 139 F.2d 908 (1943)
UNITED STATES
v.
DAVIDSON.
No. 10483.
Circuit Court of Appeals, Fifth Circuit.
December 20, 1943.
*909 Norman M. Littell, Asst. Atty. Gen., Frederick William Smith and Vernon L. Wilkinson, Attys., Department of Justice, all of Washington D. C., Clyde O. Eastus. U. S. Atty., and W. P. Walker, Asst. U. S. Atty., both of Fort Worth, Texas, for appellant.
Riley Strickland and Tom Seay, both of Amarillo, Tex., for appellees.
Before SIBLEY, HOLMES, and WALLER, Circuit Judges.
HOLMES, Circuit Judge.
This action was instituted by the United States to enjoin the appellees from collecting taxes assessed for the years 1937, 1938, and 1939, by various political subdivisions of the State of Texas, against a grain elevator at Amarillo, Texas. The basis of the claim for relief was that the property belonged to the United States from and after November, 1936, and was exempt from taxation.
Appellees admitted that the assessments for 1938 and 1939 were void, but contended that the United States did not acquire legal or equitable title to the property until February 24, 1937; that the assessment for 1937 became a lien as of January 1, 1937, at which time the property was subject to taxation; and by counterclaim they demanded a judgment of foreclosure of the tax liens for 1937. The court below denied the injunctions and entered a decree of foreclosure; the Government has appealed.
Farmers National Warehouse Corporation, a wholly-owned subsidiary of Farmers National Grain Corporation, held the legal title and was in possession of the property on June 12, 1936. Both corporations were organized and financed by the United States under the Agricultural Marketing Act of June 15, 1929, but they were not agencies of the United States, and their properties were subject to state taxation. On June 12, 1936, the parent corporation entered *910 into a contract with the Farm Credit Administration whereby it was agreed that all assets of the grain corporation and its subsidiaries, except certain properties expressly retained, should be transferred to the F. C. A. in consideration of the rendition of financial assistance and the cancellation of certain obligations of the grain corporation to the Government, but the contract was subject to approval by the Secretary of the Treasury, which was not finally given until November 7, 1936. The grain elevator at Amarillo was one of the properties to be transferred to the F. C. A. under said contract. It was contemplated that some time would be required to execute the contract, so it was agreed that each act in consummation of the agreement should be executed as of June 30, 1936.
On October 30, 1936, the United States leased the grain elevator properties to the parent corporation. On October 31, 1936, the parent corporation conveyed by deed to the United States "all assets" owned by the parent corporation on June 30, 1936, except those assets retained under the agreement. The subsidiary conveyed, by deed to its parent dated November 7, 1936, "all assets" belonging to the subsidiary as of the close of business on June 30, 1936. Finally, on February 24, 1937, the subsidiary by quitclaim deed conveyed to the United States the elevator properties at Amarillo.
This court unanimously agrees with the court below that legal title to the grain elevator did not vest in the United States until February 24, 1937. The law recognizes a corporation to be a legal entity separate and apart from its stockholders, and the agreement of June 12, 1936, made by the parent corporation, was not the act of the subsidiary and was not binding upon it.[1] The only conveyance made by the parent corporation, pursuant to its agreement, conveyed assets owned by the parent corporation on June 30, 1936, at which time title to and possession of the grain elevator was in the subsidiary. The conveyance made November 7, 1936, as of June 30, 1936, from the subsidiary to the parent, like all of the conveyances mentioned except the quitclaim deed of February 24, 1937, did not particularly describe any property; the conveyance was of "all of its assets as at the close of business on June 30, 1936". In Texas an instrument purporting to convey land must furnish the means of determining with reasonable certainty what land is involved; if it does not, the conveyance is void.[2] If, however, a transfer by the subsidiary of "all its assets" is to be taken as including all its land, still this after-acquirement by the parent of title to this elevator would not pass legal title to the Farm Credit Administration by virtue of the conveyance previously made to the latter by the parent, because that conveyance was expressly confined to assets that the parent owned on June 30, 1936, and did not purport to convey this elevator.
It also appears that most of the instruments executed in 1936 bore no acknowledgment, and none of them was filed for record. Article 6627 of Vernon's Annotated Texas Statutes provides that all conveyances of land shall be void as to all creditors and subsequent purchasers for value without notice unless they are acknowledged and filed for recording as required by law. This statute applies to a creditor who has acquired a lien by operation of law upon the land without notice of an unrecorded conveyance, and confers upon such lienor a right superior to that of the grantee in the conveyance.[3]
A majority of this court agrees with the trial court that the equitable title was not in the United States prior to February 24, 1937. In Texas, as elsewhere, an equitable title is a right, enforceable in equity, to have the legal title to real estate, or the fruits thereof, transferred to the owner of the right.[4] It is doubtful whether *911 any of the instruments of conveyance executed prior to 1937 were sufficient under Texas law, even as between the original parties thereto, to vest an enforceable equitable right to the realty in the United States;[5] but we prefer to rest our decision on another ground. The agreement upon which reliance is placed was a bilateral contract imposing obligations upon both the parties thereto, and there is nothing to indicate that the obligations of one were to be performed before those of the other. The record contains no evidence to establish that the United States or any of its agencies have yet performed the contractual obligations undertaken by it. Under such circumstances a court of equity has no power to compel performance until the one demanding it has matured his right thereto by performance, or tender of performance, of all conditions precedent to the creation of an equitable right in him.[6]
Since the United States had neither legal nor equitable title until February 24, 1937, the property was subject to state taxation on January 1, 1937. It is conceded that taxes become a lien on taxable property on January 1st of the year for which they are levied.[7] The remaining question, therefore, is whether appellees were entitled in this proceeding to the decree of foreclosure for the enforcement of their liens. Appellees recognize that the sovereign immunity from suit of the United States would preclude any suit against it or its property for enforcement of the lien in the court below, but they contend that the act of the sovereign in bringing the injunction suit conferred jurisdiction upon the court to entertain the counterclaims for foreclosure and to administer full and complete justice upon the subject matter of the litigation. Reliance is placed upon the case of The Thekla, 266 U.S. 328, 45 S. Ct. 112, 69 L. Ed. 313, in support of this contention.
In the Thekla case the court said that, when the United States comes into court to assert a claim, it so far takes the position of a private suitor as to agree by implication that justice may be done with regard to the subject matter; that the absence of legal liability, in a case where but for its sovereignty it would be liable, does not destroy the justice of the claim against it. It is a familiar rule, however, that the language of an opinion must be construed in the light of the particular facts of the case. As was pointed out in United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888, decision in the Thekla case turned upon a relationship characteristic of claims for collision in admiralty, in which libels and cross-libels are one litigation, and it is necessary to determine both libels in order to determine the one liability for the collision. The court expressly disavowed any intention to disturb the settled rulings in regard to sovereign immunity, namely, that a claim upon which no original suit may be brought against the sovereign may not be asserted as a counterclaim.[8] Jurisdiction of the counterclaims here asserted is controlled by the general postulate that no suit may be brought against the United States unless specific statutory consent has been given.[9]
For these reasons the United States was not entitled to the injunctive relief sought, and the counterclaims of the appellees should have been dismissed. The decree is modified by striking therefrom the recoveries of money and foreclosure of tax liens against the property in controversy under the counterclaims; and as *912 thus modified it is affirmed. No costs are awarded against the United States.
Modified and affirmed.
SIBLEY, Circuit Judge (concurring).
The owner of the elevator, a private corporation, is, by a series of irregular instruments, continued in possession as a lessee, using the elevator as before. The State is protecting the property and its commercial use as before, but is to be denied its usual recompense in taxes. It is a startling proposition to me that an agency of the United States, without Congressional authority to do that very thing, can acquire a series of commercial properties and continue them in commercial use by commercial users and extinguish State taxation of them by means of the governmental immunity of the United States.
Certain it is that taxation is the rule and immunity the exception, and that immunity must be positively and clearly shown. I do not think, for the reasons stated in the opinion, that an immunity is positively and clearly shown on Jan. 1, 1937, by the confused and uncertain evidence offered. For this additional reason, I think the judgment denying the immunity ought to be affirmed.
WALLER, Circuit Judge (concurring in part and dissenting in part).
I concur in the majority view that a decree for the foreclosure of the asserted tax lien could not be entered against the United States, nor could costs be awarded against it. I further agree that the United States did not have the legal title on January 1, 1937. But it is my conclusion that the equitable title was in the United States prior to the above date and, therefore, the property was not subject to taxation on that date.
A fuller statement of the facts than appears in the majority opinion is considered necessary in order to present my views understandingly.
A factual recapitulation reveals the following sequence of events:
(a) On June 12, 1936, the Grain Corporation, the sole stockholder of the Warehouse Corporation, agreed to transfer, as of June 30, 1936, to the Farm Credit Administration all of its assets and all of the assets of its wholly-owned subsidiary and to cause its subsidiary to perform whatever acts were necessary to accomplish the transfer.
(b) A conveyance on October 31, 1936, from the Grain Corporation to the United States of all the assets owned by it on June 30, 1936, "in fulfillment of the agreement of June 12, 1936", and a covenant to take such action and execute such further instruments as may be necessary.
(c) An instrument dated the 7th day of November, 1936, between the Warehouse Corporation and the Grain Corporation, conveying to the Grain Corporation all of the assets of the Warehouse Corporation as of the close of business June 30, 1936, in express recognition of, and for the purpose of carrying out, the agreement of June 12, 1936, between the Grain Corporation and the Farm Credit Administration.
(d) A lease from the United States to the Grain Corporation, dated October 30, 1936, but as of June 30, 1936, of the Amarillo Terminal at Amarillo, Texas, conformable to the initial contract.
(e) A lease back from the Grain Corporation to the Warehouse Corporation, dated November 7, 1936, of the Amarillo, Texas, elevator, and other elevators and warehouses listed in the lease from the United States to the Grain Corporation.
(f) The quit claim deed, dated February 24, 1937, as of October 31, 1936, from the Warehouse Corporation to the United States, specifically describing the property in question.
The lower Court, and the majority of this Court, have concluded that the foregoing transactions did not place the equitable title to the premises in the United States on or before January 1, 1937, at which time the taxes in Texas became a lien upon real estate. It was the view of the lower Court, which seems to be shared in by the majority here, that the several agreements between the United States and the Grain Corporation and the Warehouse Corporation failed sufficiently to describe the premises so as to vest an equitable title in the Government, or so as to have entitled the Government to the specific performance of the contract, or so as to have complied with the statutory requirements of Texas that instruments purporting to convey land should be in writing, and that the first instrument meeting such requirement was the deed of February 24, 1937, after the lien for taxes had matured. Upon these considerations they hold that the Government was not entitled to have an injunction against the enforcement of the taxes.
*913 It seems to be conceded, as it should be, that if the Government had the equitable title the lands would not be subject to taxation even though the Government was not seized of the legal title.
Whether or not specific performance could be had by the claimant is not the exclusive test of the ownership of an equitable title. There are numerous instances where the owner of an equitable title might not be able to enforce specific performance. Equitable rights in property may rest in parol. The equitable title might be in a party by virtue of a constructive or resulting trust, or by operation of law outside of contract.
"An equitable title exists where the legal title is vested in one person and the beneficial interest inures to another person, who may be named in the deed or who may not be named at all, whose right may exist by parol. Beringer v. Lutz, 188 Pa. 364, 41 A. 643, 644." 15 Words and Phrases, Perm. Ed. 63.
"An equitable title is `a right or interest in land, which, not having the properties of a legal estate, but being merely a right of which courts of equity will take notice, it requires the aid of such court to make it available.'" Sebring Co. v. O'Rourke, 101 Fla. 885, 134 So. 556, 559; Pogue v. Simon, 47 Or. 6, 81 P. 566, 114 Am. St. Rep. 903, 8 Ann.Cas. 474; 1 Bouv. Law Dict., Rawles Third Revision, p. 680.
In 15 Words and Phrases, Perm.Ed., p. 64, we find the following definition: "Equitable title is a right imperfect at law, but which may be perfected by the aid of a court of chancery * * * by compelling parties to do that which in good faith they are bound to do, or removing obstacles interposed in bad faith to the prejudice of another."
An application of the test of whether specific performance could be decreed in the present case is altogether inapt. Cases for specific performance of land sale contracts arise between the parties to the contract, or their privies, in which the parties defendant raise the issue of insufficient description. In the present case neither party to the contract has contended that the description is insufficient. In fact, the descriptions in the various instruments appear to have been entirely satisfactory to the parties to the contracts. Each party knew what property was intended to be conveyed. The Tax Collector, a stranger, seeks to raise the question, when the sufficiency of description was never raised by the parties, but on the contrary the owner of the legal title, in due course, executed a deed by proper description, confirming, ratifying, and making certain the description and the intent of the parties in the initial and subsequent instruments. It is difficult to see how a third party, who was neither a creditor nor purchaser, could raise the question of description when the parties to the contract were satisfied with it and carried out the contracts without controversy. The Tax Collector does not stand in the relation of an innocent purchaser or creditor. He is not interested in the rights of individuals but has a lien on the property of either party to a land contract, and the fact that the property of the United States is not the subject of taxation does not invest him with a right to question the contract. Even in a suit for specific performance wherein the description was general and indefinite, if both parties to the contract were in agreement that the premises in controversy were definitely known and understood by them, no Court would refuse specific performance of the contract on the ground of insufficiency of the description.
Where mutual mistake in the description is the only defect in an instrument the purchaser would resort to a proceeding for the reformation of the instrument rather than its specific performance.
The intent, purpose, and acts of the parties are the determinative factors in the creation of an equitable title not the effectiveness of specific performance. It is possible for one to be the owner of an equitable title and be without any remedy because of lack of proof or because of intervening equities of third parties.
Nor is it necessary in this case to resort to the maxim, "Id certum est quod certum reddi potest", because the parties to the contract appear to have experienced no uncertainty as to description, and especially when the uncertainty was later reduced to certainty by a definite description of the property, which expressly related back to October 31, 1936, thereby converting the equitable title into a legal title.
The Government's claim to an equitable title is not dependent solely upon the deed from the Grain Corporation to the Government under date of October 31, 1936. It will be remembered that on June 12, 1936, *914 the Grain Corporation obligated itself to transfer all of its assets to the United States and to cause its subsidiaries to perform such acts as would bring about the transfer to the United States of all assets of the subsidiaries. It is true that the title to the Amarillo elevator site was then in the Warehouse Corporation, and it is true that the deed from the Grain Corporation to the United States under date of October 31, 1936, did not undertake to convey any property other than that owned by the Grain Corporation. Nevertheless, since the Grain Corporation owned all of the stock in the Warehouse Corporation, and, therefore, had complete power to operate the affairs of the latter, so long as the rights of innocent third parties were not invaded, it was bound by its contract of June 12, 1936, to cause a conveyance to be made from the Warehouse Corporation. It had all the stock of the Warehouse Corporation, which was not shown to be insolvent, and it could vote the stock for the sale of the corporation property. It, as sole stockholder, could thus order the directors and officers to sell. Certainly the sole stockholder of a corporation, in the absence of fraud or the intervening rights or equities of third parties or creditors in due course, has the right to bind its wholly-owned corporation to a contract to convey its property for a valid consideration.[1] It certainly could not be disputed that the sole stockholder of a corporation is at least an authorized agent of the corporation in such circumstances. In this case the sole stockholder of the subsidiary agreed with the United States on June 12, 1936, to transfer its assets to the United States and to cause its subsidiary to perform such acts as to accomplish the transfer of the assets of its subsidiary. On November 7, 1936, it entered into a contract as of June 30, 1936, with the Warehouse Corporation for the fulfillment of the contract of June 12, 1936, and in which contract of November 7 the Warehouse Corporation did transfer, convey, assign, and deliver to the Grain Corporation all of its assets as of June 30, 1936. This instrument affirmatively shows that the conveyance was made by the Warehouse Corporation to the Grain Corporation for the expressed purpose of carrying out the contract of the Grain Corporation to the United States of June 12, 1936, and for the consideration that would flow to each of the companies under said agreement of June 12, 1936. Even if the Grain Corporation had thereafter refused to execute a formal deed to the United States, a court of equity would have decreed it to have acquired the property for the United States, in fulfillment of its contract with the United States, and, therefore, it would be held to be a trustee for the United States of the legal title.
The majority opinion states that: "The record contains no evidence to establish that the United States or any of its agencies have yet performed the contractual obligations undertaken by it. Under such circumstances a court of equity has no power to compel performance until the one demanding it has matured his right thereto by performance or a tender of performance of all conditions precedent to the creation of an equitable right in him."
Who is seeking a Court to compel performance? Not the parties to the agreements. Who raises the question of any failure on the part of the United States to perform? Not the parties to the agreement. The Tax Collector never raised it. The authority of the majority of this Court to raise it is gravely questioned. The record does not contain a vestige of evidence even tending to show lack of performance by the United States of its obligations, or tender of performance, before January 1, 1937.
But the record does show that the United States leased the property back to the Grain Corporation and the Warehouse Corporation in turn leased it back from the Grain Corporation and paid to the United States $414.08 rental per month from June 30, 1936, thenceforth. The leasing back of this property was one of the obligations which the United States agreed to perform which it did perform. It would seem most unusual for a corporation to pay rental of $414.08 per month for the use of its own *915 property, or to its contractee if the contractee was in substantial default in its obligation to the corporation. These facts create a presumption, in the absence of evidence to the contrary, of no lack of performance by the United States. When the deed of February 24, 1937, was executed, why was it executed "as of October 31, 1936", if the United States had not carried out its part of the bargain as of that date?
Even if we were to consider the sole stockholder as having acted without authority to act for the Warehouse Corporation, we find that the Warehouse Corporation not only ratified the acts of its agent by subsequently making a deed in conformity with the agreement of its agent, but it also, on November 7, 1936, accepted a lease back from the Grain Corporation, which in turn had secured and accepted a lease from the United States to the premises. Thus by: (a) its acceptance of the lease, (b) its attornment under the lease, and (c) its ratification of the entire agreement by its parent, it would be estopped to question the authority of the Grain Corporation to make the contract. The Grain Corporation, by virtue of: (a) its contract, (b) the fact that it obtained the deed from the Warehouse Corporation for the purpose of carrying out its contract with the Government, (c) its covenant with the Government to acquire the property for the Government, and (d) its attornment to the United States, would likewise be estopped to assert title against the Government, either legal or equitable, and, whether or not its after-acquired title inured to the United States, it at least was a trustee of the legal title for the United States with the equitable or beneficial title in the United States.
After the Grain Corporation contracted with the United States to cause its subsidiaries to convey to the United States, and to perform such other acts as were necessary to accomplish the purposes of the agreement, and after its acquisition of a deed from the Warehouse Corporation "in fulfillment" of its contract to the United States, equity might properly consider the title as having inured to the benefit of its contractee so as to create an equitable title by estoppel.
No one disputes that unrecorded and unacknowledged deeds are void, in Texas, as to innocent purchasers and creditors, but such instruments are binding on the parties thereto,[2] and most assuredly must that be so when the parties have asserted no invalidity, and when there is no innocent purchaser, and when a tax obligation in Texas does not create the relation of debtor and creditor. The Tax Collector is not a creditor for a valuable consideration without notice, because the assessment is against the property and not the owner, and contracts of the owner do not affect taxes.
In view of the fact, therefore, that the equitable title was in the United States, the lands were not subject to taxation on January 1, 1937, and the Court below should have granted the injunction sought and decreed the lien of the several taxing units to be void.
The Judgment below should be reversed, set aside, and vacated, with directions to the Court below to enter Judgment for the Plaintiff.
NOTES
[1] Sabre v. United Traction & Electric Co., D.C., 225 F. 601; Pierce v. National Bank of Commerce, 8 Cir., 13 F.2d 40; Marr v. Tumulty, 256 N.Y. 15, 175 N.E. 356; Ayer & Lord Tie Co. v. Commonwealth, 208 Ky. 606, 271 S.W. 693; 1 Fletcher's Cyclopedia on Corporations, 118, 119.
[2] Osborne v. Moore, 112 Tex. 361, 247 S.W. 498; Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703; Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064; 14 Tex.Jur. 987.
[3] Shear Co. v. Currie, 5 Cir., 295 F. 841; In re Lindahl, D.C., 59 F.2d 91; Underwood v. United States, 5 Cir., 118 F.2d 760; Ayres v. Duprey, 27 Tex. 593, 86 Am.Dec. 657; McKamey v. Thorp, 61 Tex. 648; Hirt v. Werneburg, Tex.Civ. App., 191 S.W. 711.
[4] Citizens National Bank v. Commissioner, 8 Cir., 122 F.2d 1011; Harris v. Mason, 120 Tenn. 668, 115 S.W. 1146, 25 L.R.A.,N.S., 1011; Tanner v. Imle, Tex.Civ.App., 253 S.W. 665; Ayres v. United States, 42 Ct. Cl. 385; Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146.
[5] Cf. Continental Supply Co. v. Missouri, K. & T. Ry. Co., Tex.Com.App., 268 S.W. 444; Patton v. Rucker, 29 Tex. 402, 409; O'Herin v. Neal, Tex.Civ.App., 56 S.W.2d 1105.
[6] Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146; 58 Corpus Juris, 1079, 1080, 1083. Cf. Taylor v. Kaufman, Tex. Civ.App., 267 S.W. 526; Barker v. Klingler, 302 Mich. 282, 4 N.W.2d 596.
[7] Carswell & Co. v. Habberzettle, 39 Tex. Civ. App. 493, 87 S.W. 911. Cf. United States v. Alabama, 313 U.S. 274, 61 S. Ct. 1011, 85 L. Ed. 1327.
[8] Nassau Smelting Works v. United States, 266 U.S. 101, 45 S. Ct. 25, 69 L. Ed. 190; Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840, 78 L. Ed. 1434; United States v. United States Fidelity Co., 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894.
[9] Stanley v. Schwalby, 162 U.S. 255, 16 S. Ct. 754, 40 L. Ed. 960; State of Kansas v. United States, 204 U.S. 331, 27 S. Ct. 388, 51 L. Ed. 510; United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888; Moody v. Wickard, App.D.C., 136 F.2d 801.
[1] In Volume 19 C. J. S., Corporations, page 472, § 1004, it is said: "* * * but the trend of authority is to uphold as binding on the corporation acts or contracts on its behalf by a person or persons owning all or practically all the stock, even though there is a lack of, or defect in, some corporate step or action."
Numerous cases are cited in support of the text, including the case of Computing Scale Company v. Toledo Computing Scale Company, 7 Cir., 279 F. 648, holding that the assignment of a patent in the name and on behalf of a corporation by all of its stockholders conveyed at least a full equitable title.
[2] Article 6627 of the Texas Revised Civil Statutes reads as follows: "All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years; and deeds of settlement upon marriage, whether land, money or other personal thing; and all deeds of trust and mortgages shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall be valid and binding." | 01-03-2023 | 10-30-2013 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.