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https://www.courtlistener.com/api/rest/v3/opinions/1568150/ | 10 So. 3d 638 (2009)
C.J.M.
v.
VURRO.
No. 2D09-2361.
District Court of Appeal of Florida, Second District.
May 29, 2009.
Decision without published opinion Habeas Corpus granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568205/ | 139 F.2d 618 (1943)
RIEGER
v.
COMMISSIONER OF INTERNAL REVENUE.
PICKREL et al.
v.
SAME.
SCHAEFFER
v.
SAME.
Nos. 9489-9491.
Circuit Court of Appeals, Sixth Circuit.
November 30, 1943.
*619 In case No. 9489:
Benjamin R. Shaman, of Dayton, Ohio, for petitioner.
In case No. 9490:
William G. Pickrel, of Dayton, Ohio, for petitioners.
In case No. 9491:
Virgil Schaeffer, of Dayton, Ohio, for petitioner.
Louise Foster and J. P. Wenchel, both of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, A. F. Prescott, and Mamie S. Price, all of Washington, D. C., on the brief), for respondents.
Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.
MARTIN, Circuit Judge.
The Union Trust Company of Dayton, Ohio, was closed on October 31, 1931, and taken over for liquidation by the Superintendent of Banks of Ohio, pursuant to the law of that state, under which the bank was chartered. At the time of closing, the bank had some ninety thousand depositors who had an aggregate of $28,000,000 on deposit. Thousands of the depositors were school children, whose accounts were paid off in full immediately after the bank closed. All preferred and secured creditors' accounts were also paid in full and set-off credit was given debtors against their deposits. These adjustments were completed by April 1932; whereupon negotiable certificates of claim were issued to the remaining depositors of the bank who then numbered some fifty thousand persons, whose deposits totalled the approximate sum of $15,377,000.
With the approval of the Superintendent of Banks, borrowers were permitted to liquidate their bank indebtedness with these certificates of claim, sometimes at full face value, on other occasions at less than face value but more than market value. Union Trust Company certificates being in demand not only for use in the liquidation of indebtedness to the bank but also for speculative purposes, extensive trading in them ensued. In mid-year of 1932, some twenty brokerage houses in Dayton were dealing in these certificates and also in certificates *620 of claim issued by nineteen building and loan associations of Dayton which had suspended withdrawals. The volume of dealing in the certificates of all these closed financial institutions became so heavy that, in the fall of 1932, by concerted action the Dayton brokerage houses established an exchange for trading in and handling the certificates. Quotations of the bid and asked prices of the Union Trust Company certificates were furnished daily by the exchange for publication on the market page of local newspapers. The operating banks of the city of Dayton accepted the Union Trust Company certificates of claim as security on loans on the basis of these published market reports; and the market for the exchange of the certificates was active up to the final liquidation of the Union Trust Company. From time to time, dividends on the certificates were paid by the liquidator and, in each instance, such payment was endorsed on the back of the certificate.
In 1937, the petitioning taxpayers in these three consolidated cases purchased Union Trust Company certificates of claim and in their respective income tax returns reported their profits therefrom as capital gains. Rieger reported his capital gains for the years 1938 and 1939, and Schaeffer and Pickrel reported theirs for the single year 1939, in which the final liquidating dividend was paid and the certificates of claim were surrendered to the Superintendent of Banks of Ohio.
The Commissioner of Internal Revenue and the Board of Tax Appeals both held that under Section 117(f) of the Revenue Act of 1938, 26 U.S.C.A. Int.Rev.Acts, pages 1061, 1063, the profits realized by the respective petitioning taxpayers from dividends received by them on the Union Trust Company certificates of claim purchased by each respectively constituted ordinary income and not capital gain. The correctness of the decisions of the Board of Tax Appeals (now the Tax Court of the United States) is challenged by the taxpayers' petitions for review addressed to this court.
Decision on this review must rest upon whether the certificates purchased by the petitioners are "certificates or other evidences of indebtedness" within the meaning of the quoted language of Section 117 (f) of the Revenue Act of 1938: "For the purposes of this title, amounts received by the holder upon the retirement of bonds, debentures, notes, or certificates or other evidences of indebtedness issued by any corporation (including those issued by a government or political subdivision thereof), with interest coupons or in registered form, shall be considered as amounts received in exchange therefor."
Inspection of the form of certificate of claim involved herein shows that the certificates were issued by the Superintendent of Banks of Ohio and signed by his special deputy in charge of liquidation of the Union Trust Company. On its face, the certificate states that the Union Trust Company of Dayton, Ohio, is justly indebted to the claimant named in the certificate in a definite sum of money, representing a bank balance, certificate of deposit, cashier's check, certified check, Christmas Account, or school savings' account; that the claimant or his lawful assignee will alone be entitled to dividends on the claim; and that the claim represented by the certificate is subject to any direct or contingent liability that now exists against the Union Trust Company, or that may hereafter exist against anyone to whom the certificate is issued or anyone who later by purchase or assignment may acquire the claim represented by the certificate.
This important language is printed on the face of the certificate: "No assignment of this claim, or any portion thereof will be recognized in payment of dividends, unless such assignment be endorsed on the back hereof, and notice thereof given to the Superintendent of Banks of Ohio, in charge of Liquidation of said Bank and entered upon its books before such dividends are declared.
"This Certificate shall be sole evidence of the above claim, and must be presented when each dividend is paid and surrendered upon payment of the final dividends."
Opposite the signature of the Special Deputy Superintendent of Banks of Ohio is printed the injunction: "Important Do not lose this Certificate. Dividends cannot be collected without same." On the back of the certificate is printed an assignment form similar to that generally used in connection with the transfer of stock certificates. Beneath this assignment form is printed: "Above assignment accepted and entered this ...... day of ......, 193... L. D. Fulton, Superintendent of Banks of Ohio, by ......, Special Deputy Superintendent of Banks, in charge of the Liquidation of The Union Trust Company of *621 Dayton, Ohio." Underneath this form of acceptance and entry of the assignment is printed a table for endorsement of the dividends paid on the certificate, showing the number, percentage and date of the payment of the dividends.
Citing its previous decision in Mary D. Gerard v. Com'r of Int. Rev. 40 B.T.A. 64, affirmed Gerard v. Helvering, 2 Cir., 120 F.2d 235, the Board of Tax Appeals found that the Union Trust Company certificates of claim bore no interest coupons, and that there is no evidence that they were registered; and that, under the doctrine of noscitur a sociis, the certificates are not to be included in the statutory classification "bonds, debentures, notes, or certificates or other evidences of indebtedness issued by any corporation." Further interpretation by the Board was that Congress, in using the word "other," intended to limit the scope of the term "evidences of indebtedness." Its language in Norman Buckner v. Com'r of Int. Rev., 43 B.T.A. 958, was reiterated: "We can not accept the view that the careful and exclusive language of the section under consideration was designed to include anything so far afield as a receiver's certificate of proof of claim."
The tax tribunal reached the conclusion that the specimen certificate was neither a certificate or other evidence of indebtedness "issued by any corporation," nor a certificate "issued by a government or political subdivision thereof."
We are unable to concur in the reasoning and conclusions of the Board of Tax Appeals. In our view, the Union Trust Company certificates, issued in the circumstances, manner and form which have been described, are clearly to be classified as certificates of indebtedness issued in registered form by a corporation within the language and intent of Section 117(f) of the Revenue Act of 1938.
The mere fact that the corporation was in liquidation when the certificates were issued as evidence of its indebtedness to depositors does not negate the inclusion of the certificates within the scope of Section 117(f). In Ohio, claims against closed state banks, as evidenced by pass books or other instruments, are securities within the meaning of the terms as used in the Ohio Securities Act, Gen.Code, § 8624-1 et seq. Opinions of the Attorney General of Ohio (John W. Bricker), Vol. 1, Sec. 652, pp. 572, 574.
But Ohio law aside, there appears no valid reason why the certificate of indebtedness of a corporation in liquidation should be rejected as not intended by Congress to be included within the purview of the section. Certainly, Congress made no such express exception; nor from the context, is any intended exception to be necessarily implied. The purpose in the enactment of Section 117 of the Revenue Act of 1938 was manifestly to differentiate between the income of a taxpayer received on the one hand from his personal service, profession, business or trade, or from interest, dividends, rents and the like, as defined in Section 22 of the Act, 26 U.S.C.A. Int.Rev.Acts, page 1008, and, on the other hand, from gains or losses accruing from investment of his capital assets, as defined in Section 117 of the Act. It is apparent that in enacting Section 117(f) Congress intended to broaden this differentiation to embrace the retirement of the class of securities enumerated in that section.
Upon this record, there can be no doubt that the taxpayers intended to, and actually did, invest portions of their capital assets in corporate certificates of indebtedness for speculative purposes. If the certificates purchased by them were "in registered form," the amounts received by them upon retirement of the certificates under the express terms of the statute "shall be considered as amounts received in exchange therefor."
That the Union Trust Company certificates were issued "in registered form," within a logical construction of Section 117(f), is obvious from mere inspection of the form of certificate which has been heretofore minutely described. The requirements on the face of the serially numbered certificate, issued to a named claimant, that in the payment of dividends no assignment would be recognized unless endorsed on the back of the certificate, that the Superintendent of Banks of Ohio should be notified of any assignment of the claim, and that the form for acceptance and entry of the assignment was to be signed on the back of the certificate by the official liquidating agent of the bank, demonstrate to our thinking that the Union Trust Company certificates are properly to be regarded as issued "in registered form."
Consideration has been given to three cases cited by the respondent Commissioner of Internal Revenue and no conflict appears *622 to us between their respective holdings and our decision in the instant controversies. McClain v. Commissioner, 311 U.S. 527, 61 S.Ct. 373, 85 L.Ed. 319; Matheson v. Commissioner, 2 Cir., 54 F.2d 537; Gerard v. Helvering, 2 Cir., 120 F. 2d 235.
The decisions of the Board of Tax Appeals in these three cases (Nos. 9489, 9490, 9491) are reversed, and the causes remanded for appropriate procedure in conformity with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646201/ | 9 So.3d 865 (2009)
STATE ex rel. Garry ZEIGLER, Sr.
v.
STATE of Louisiana.
No. 2008-KH-2187.
Supreme Court of Louisiana.
June 5, 2009.
Denied.
JONES, J., recused. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568135/ | 10 So. 3d 615 (2008)
CAMBRIA, INC.
v.
WORLDWIDE CUSTOM MATERIALS, INC., Alan R. Bramlett, and Don R. Groves.
2070855.
Court of Civil Appeals of Alabama.
December 12, 2008.
W. Brad English and Lisa M. McCormack of Richardson Callahan & Frederick LLP, Huntsville, for appellant.
*616 Stuart M. Maples of Maples & Ray, P.C., Huntsville, for appellee Don Groves.
BRYAN, Judge.
Cambria, Inc., appeals from an order setting aside a domesticated default judgment entered by a Minnesota District Court against Worldwide Custom Materials, Inc. ("Worldwide"), Alan R. Bramlett, and Don R. Groves. We reverse and remand.
In 2007, Cambria sued Worldwide, Bramlett, and Groves in the District Court for LeSeur County, Minnesota ("the Minnesota court"), seeking to recover a debt Worldwide, Bramlett, and Groves allegedly owed Cambria. When Worldwide, Bramlett, and Groves failed to answer Cambria's complaint or otherwise defend the action, Cambria moved the Minnesota court for a default judgment. On July 18, 2007, the Minnesota court entered a default judgment in the amount of $46,270.42 against Worldwide, Bramlett, and Groves.
On February 19, 2008, Cambria, pursuant to the Uniform Enforcement of Foreign Judgments Act ("the UEFJA"), codified at § 6-9-230 et seq., Ala.Code 1975, filed a "Notice of Filing of Foreign Judgment" in the Madison Circuit Court ("the trial court"). In response, Worldwide and Bramlett moved the trial court, pursuant to Rule 60(b)(4), Ala. R. Civ. P., to set aside the domesticated Minnesota judgment on the ground that the Minnesota court had lacked personal jurisdiction over them because, they alleged, they had not been served with process in the action in the Minnesota court. However, Worldwide and Bramlett did not support their motion with any evidence tending to prove that they had not been served with process in the action in the Minnesota court. Groves subsequently filed a pleading notifying the trial court and the parties that he was joining the Rule 60(b)(4) motion filed by Worldwide and Bramlett. However, Groves did not submit any evidence tending to prove that he had not been served with process in the action in the Minnesota court.
In opposition to the Rule 60(b)(4) motion, Cambria argued, among other things, (1) that its authenticating and filing the Minnesota judgment in the trial court in accordance with the UEFJA created a rebuttable presumption that the Minnesota court had jurisdiction to enter the Minnesota judgment and shifted to Worldwide, Bramlett, and Groves the burden of producing evidence to rebut that presumption and (2) that the unsworn allegations of Worldwide, Bramlett, and Groves to the effect that they had not been served with process in the action in the Minnesota court did not satisfy their burden of proof. Thereafter, the trial court, without holding a hearing, entered an order setting aside the Minnesota judgment without stating its rationale for doing so. Cambria then timely appealed to this court.
"The standard of review on appeal from an order granting relief under Rule 60(b)(4), Ala. R. Civ. P. (`the judgment is void'), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So. 2d 938, 940 (Ala.1988). `If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process.' Seventh Wonder v. Southbound Records, Inc., 364 So. 2d 1173, 1174 (Ala.1978) (emphasis added)."
Ex parte Full Circle Distribution, L.L.C., 883 So. 2d 638, 641 (Ala.2003).
*617 "`The judgment of the court of another state having jurisdiction of the subject matter and persons is entitled to full faith and credit in Alabama courts. Hester v. Clinic Masters, Inc., 371 So. 2d 915 (Ala.Civ.App.1979), cert. denied, 371 So. 2d 917 (Ala.1979).'" Teng v. Diplomat Nat'l Bank, 431 So. 2d 1202, 1202-03 (Ala. 1983) (quoting Morse v. Morse, 394 So. 2d 950, 951 (Ala.1981)). The authentication and filing of a sister state's judgment with a circuit court of this state in accordance with the UEFJA creates a rebuttable presumption that the court rendering that judgment had jurisdiction to do so and shifts to the party challenging that judgment the burden of producing evidence to rebut the presumption. See Teng, 431 So.2d at 1203.
In the case now before us, Cambria's authenticating and filing the Minnesota judgment with the trial court in accordance with the UEFJA created a rebuttable presumption that the Minnesota court had jurisdiction to enter the Minnesota judgment and shifted to Worldwide, Bramlett, and Groves the burden of producing evidence to rebut that presumption. Id. Although Worldwide, Bramlett, and Groves made unsworn allegations that they had not been served with process in the action in the Minnesota court, they produced no evidence to prove those unsworn allegations or to otherwise rebut the presumption that the Minnesota court had jurisdiction to enter the Minnesota judgment. Consequently, the trial court erred in setting aside the Minnesota judgment. Accordingly, we reverse the trial court's order setting aside the Minnesota judgment and remand the case to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
PITTMAN, THOMAS, and MOORE, JJ., concur.
THOMPSON, P.J., concurs in the result, without writing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568191/ | 10 So. 3d 1187 (2009)
LAKE FOREST MASTER COMMUNITY ASSOCIATION, INC., Appellant,
v.
ORLANDO LAKE FOREST JOINT VENTURE, et al., Appellees.
No. 5D08-2096.
District Court of Appeal of Florida, Fifth District.
June 10, 2009.
Rehearing Denied June 10, 2009.
*1189 Robyn Severs Braun and Patrick C. Howell, of Taylor & Carls, P.A., Altamonte Springs, for Appellant.
T. Todd Pittenger and Kristopher Kest, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.
REVISED OPINION
GRIFFIN, J.
Appellant, Lake Forest Master Community Association, Inc. ["Association"], seeks review of a summary final judgment in its lawsuit against the developer[1] of its subdivision, based on alleged construction defects in improvements located in Association's common areas.[2] The summary judgment was predicated on Association's purported failure to give proper notice, according to Florida law,[3] and Association's governing documents of the meeting at which authorization to bring suit was obtained.
Association filed its lawsuit on June 29, 2007. The complaint, as amended, included counts for breach of implied warranty, defective construction, and building code violations and sought damages in excess of $4 million. Developer answered, denied any construction defects existed at the time of turnover and raised numerous defenses. After discovery, Developer filed a motion for summary judgment based on its contention that Association failed to meet the statutory condition precedent of approval by a majority of Association's voting interests, as required by section 720.303(1), Florida Statutes because the meeting where approval was given had not been properly noticed. After a hearing, the trial court entered summary final judgment in favor of Developer, concluding that proper "notice was not given to all residents of the [Association] entitled to vote."
ASSOCIATION'S ACTIONS BEFORE COMMENCING THIS LITIGATION
Section 720.303(1), Florida Statutes, requires that "before commencing litigation against any party in the name of the association involving amounts in controversy in excess of $100,000, the association must obtain the affirmative approval of the majority of voting interests at a meeting of the membership at which a quorum has been attained."[4] The notice of Association's January 9, 2007, annual meeting, mailed out to each lot owner on December 22, 2006, identified the location of the meetingthe Lake Forrest Community Clubhouseand the time7:00 p.m. The *1190 notice included the following statement: "The purpose of the annual meeting is to discuss the recent and future affairs and plans for the association and to fill three (3) vacancies on the Board of Directors." Along with the notice, Association mailed lot owners a general proxy for those unable to attend, sample ballots for election of Board and Architectural Review Committee ["ARC"] members and the 2007 Association budget.
According to Association documents, a quorum is thirty percent of the membership, or at least 220 lot members. There was a quorum for the January 9th annual meeting with attendance in person and by proxy totaling 290 lot owners. The election to fill vacancies on the Board of Directors was held at the meeting, but the election of ARC members could not be conducted because Association's governing documents require that a majority of all lot owners, which is 367 owners, attend and vote for ARC members. The minutes of the January 9, 2007, annual meeting reported: "The membership agreed to recess the meeting and to reconvene the meeting on February 13, 2007 for the purpose of obtaining additional proxies to vote for candidates for the ARC." According to the deposition testimony of Association's secretary, Terry Copper, who was present at the meeting, prepared the minutes, and recalled that Association president announced at the close of the meeting that the annual meeting would reconvene on February 13, at 7:00, at the clubhouse.[5]
In the interim, a Board meeting was conducted on February 7, 2007. According to the minutes of this Board meeting, the reconvened annual meeting on February 13 would be called to order and once a quorum was established, an election for the ARC would be conducted. The annual meeting would then be adjourned and "will reconvene once again on March 13, 2007 for the purpose of asking residents to vote on pursuing discussions or further action with the developer for alleged deficiencies."
The reconvened annual meeting took place as scheduled on February 13, 2007. More than 367 lot owners attended, either in person or by proxy, and the election for the ARC was conducted. According to the minutes of this reconvened annual meeting, the president announced at the conclusion that:
This Annual Meeting will be reconvened on March 13, 2007 at 7:00 p.m. at the clubhouse for the purpose of allowing residents to vote for or against the Association pursuing remedy of deficiencies left by the developer, NTS. If NTS will not remedy the deficiencies, or arbitrate in good faith, the Lake Forest Master Community Association will authorize its attorney to initiate legal action.
Prior to the March 13, 2007, reconvened annual meeting, Association prepared a "Notice of Continuation of Member Meeting and Summary of Pending Developer Issues" ["Continuation Notice"] to inform lot owners about the vote. This Continuation Notice was not mailed under separate cover to lot owners, but was mailed together with the March 2007 newsletter to lot owners on the newsletter mailing list. It was also posted at the Lake Forest clubhouse bulletin board.
The reconvened annual meeting was called to order on March 13, 2007, and a quorum was established. Developer's attorney attended this meeting and revoked the prior general proxies given by Developer *1191 on behalf of Association's secretary. Developer submitted new proxies, listing their counsel as Developer's proxy holder.
According to the minutes of this meeting, there was a discussion of the construction defects issue and whether Association should file a legal claim against Developer. A motion was made and seconded for approval to file a legal action against Developer, if necessary. The motion passed 255 to 35, with Developer casting its eleven votes against the motion. Suit was filed two months later.
WAS DEVELOPER ENTITLED TO SUMMARY JUDGMENT BASED ON ITS CLAIM OF DEFECTIVE NOTICE?
Association urges on appeal that the summary judgment in favor of Developer was wrong because: (1) the notice afforded was proper under Florida law and Association's governing documents, (2) genuine issues of material fact preclude summary judgment, and (3) Developer waived its right to contest the validity of the annual meeting by appearing at and actively participating in all three meetings.[6]
Section 720.306, Florida Statutes, governs meetings of homeowner's associations, including matters relating to quorums, notice, the right to speak, adjournment, proxy voting, and elections. In pertinent part, the statute provides:
(2) Annual meeting.The association shall hold a meeting of its members annually for the transaction of any and all proper business at a time, date, and place stated in, or fixed in accordance with, the bylaws....
* * *
(4) Content of notice.Unless law or the governing documents require otherwise, notice of an annual meeting need not include a description of the purpose or purposes for which the meeting is called. Notice of a special meeting must include a description of the purpose or purposes for which the meeting is called.
(5) Notice of meetings.The bylaws shall provide for giving notice to members of all member meetings, and if they do not do so shall be deemed to provide the following: The association shall give all parcel owners and members actual notice of all membership meetings, which shall be mailed, delivered, or electronically transmitted to the members not less than 14 days prior to the meeting....
* * *
(7) Adjournment.Unless the bylaws require otherwise, adjournment of an annual or special meeting to a different date, time, or place must be announced at that meeting before an adjournment is taken, or notice must be given of the new date, time, or place pursuant to s. 720.303(2). Any business that might have been transacted on the original date of the meeting may be transacted at the adjourned meeting. If a new record date for the adjourned meeting is or must be fixed under s. 617.0707, notice of the adjourned meeting must be given to persons who are entitled to vote and are members as of the new record *1192 date but were not members as of the previous record date.
(Emphasis supplied).
It is undisputed that the annual meeting was conducted on January 9, 2007, with proper notice to the members. Developer, however, claims that the required written notice of the February 13, 2007, reconvened meeting was not supplied, or, if written notice was not required, that the meeting was not adjourned in accordance with the dictates of subsection (7).
To support its first contention, Developer says that, notwithstanding the statutory procedure for adjournment, Association was required by its bylaws to supply written notice of the reconvened meeting. Because subsection 720.306(7) begins with the phrase, "Unless the bylaws require otherwise....", Developer contends that Article III of Association's bylaws, entitled "Meeting of Members," requires written notice of any meeting of the members:
Section 3. Notice of Meeting. Written notice of each meeting of the members shall be given by, or at the directions of, the secretary or person authorized to call the meeting, by mailing a copy of such notice, postage prepaid, at least fifteen (15) days before such meeting to each member, entitled to vote thereat, addressed to the member's address list appearing on the books of the Association, or supplied by such member to the Association for the purpose of notice. Such notice shall specify the place, day and hour of the meeting, and, in the case of a special meeting, the purpose of the meeting.
Developer's position is that a "reconvened meeting" is a meeting and that, under this bylaw, written and mailed notice of the reconvened meetings of February 13, 2007, and March 13, 2007, were required, even if section 720.306(7) were complied with. We reject this argument. An adjournment referenced in subsection 720.306(7) contemplates a temporary suspension of previously noticed proceedings[7] to be continued at a different date, time or place. We note subsection 720.306(5), like Article III, section 3 of the bylaws, requires notice be given "to members of all member meetings," yet the statute recognizes in subsection (7) the propriety of adjournment of meetings to a different date, time or place without mailed notice if such information is announced prior to adjournment. The bylaws here, by not providing otherwise, do not displace section 720.306(7). If the January 9 and February 13 meetings were properly adjourned, the March 13 reconvened meeting was properly conducted without additional mailed notice to members.
To support its second contention that the meetings were not properly adjourned, Developer submitted the minutes of the January 9, 2007, annual meeting which recite only that the date of February 13, 2007, for the reconvened annual meeting was announced. In his deposition, Association secretary, Copper, testified that, in accordance with the requirements of subsection (7), Association president did announce the date, time and place of the reconvened meeting.[8] Despite secretary Copper's November 15, 2007, deposition testimony that the president *1193 did in fact state at the end of the January 9 meeting the date, time and place for the reconvened February 13 meeting, Developer contends there is no issue of fact concerning lack of compliance with section 720.306(7). Developer contends that the minutes constitute irrefutable evidence of what oral notice was given because Copper confirmed in his deposition that the minutes were accurate.
For this proposition, Developer relies on case law to the effect that a party may not change its testimony to create an issue of fact in an effort to defeat a motion for summary judgment. See Weesner v. United Services Auto. Ass'n, 711 So. 2d 1192 (Fla. 5th DCA 1998); Arnold v. Dollar General Corp., 632 So. 2d 1144 (Fla. 5th DCA 1994); Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977). This rule has no application here, however.[9] Copper's deposition alone defeats the summary judgment. In sequence, the following is the salient testimony in Copper's deposition.
Q. Do you have proof of notice affidavits for the February or March 2007
A. No.
Q. Why not?
A. Because those meetings were not noticed by mail. Those meetings were noticed at thefor example, at the January 9th meeting it was announced that the meeting would be reconvened at a future date, time and place.
Q. What about for the March meeting?
A. At the February 13 meeting it was announced that the meeting would be reconvened to March 13th at a certain time at a certain place.
Q. Who made these announcements?
A. The president, as I recall, made the announcement.
Q. And is that the case for both the February 13th meeting and the March 13th? Is that the right date?
A. That's the right date.
Q. Yes. For both?
A. Yes.
Q. Were you present at the January 9 meeting?
A. I was.
Q. Were you present at the February 13 meeting?
A. I was.
Q. Were you present at the March 13 meeting?
A. I was.
....
Q. Why was the January '09 [sic] meeting continued to February 13, '07?
A. We did not have enough votes to elect three people to the architectural review committee.
Q. How far were you short?
A. Without looking at the documents, I believe we had one person who had, at the January 9th [meeting], received enough votes, but we needed three members. So we continued the meeting to try and solicit additional proxies or votes to get three people elected.
Q. I believe your testimony earlier was thatbecause I asked you are there proof of notice affidavits like Exhibit 5 for the February 13th or the March 13th meeting, and you said no.
A. That is correct.
*1194 Q. And your explanation was what? I don't want to characterize it.
A. We didn't do it. It wasn't required. My understanding is that it was not required.
Q. Why is it you believe it was not required?
A. We had already properly noticed the annual meeting. The February 13th meeting was an adjourned and reconvened meeting from the January 9th annual meeting.
Q. And what is your testimony as to how it was adjourned?
A. How it was adjourned?
Q. Yeah.
A. We announced prior to the close of the January 9th meeting that it was going to be reconvened on February 13th at 7 o'clock and to be held at the clubhouse.
Q. Who made that announcement?
A. The president made that announcement, I believe.
Q. So someone who had given proxieswe've got a lot of proxies here; right?
A. (Nods head).
Q. How would they have known that the meeting was adjourned to be reconvened?
A. They perhaps wouldn't have known.
Q. But you don't think that matters?
A. Their proxy was for that meeting and that meeting was continued to February 13th. That's what they gave their proxy for. And that proxy was good for I believe a period up to 90 days.
Q. You would agree with me wouldn't you, that the minutes of the January 9, '07 meeting reflect what happened?
A. Yes.
Q. So that official record should control as to what happened, unless proven otherwise.
MR. HOWELL: Object to the form.
Q. I mean, do you disavow that as an official record of what happened, the January 9 meeting minutes?
A. The meeting minutes were a record of what occurred at the January 9th meeting, yes.
Q. So if those meeting minutes characterized the adjournment in a particular way, that would be correct; right?
A. What do you mean that would be correct? Ask it again.
Q. It would be accurate. Do you have any reason to doubt the accuracy of the meeting minutes for the January 9th meeting?
A. No, I don't.
Q. As secretary, did you prepare those meeting minutes?
A. I did.
Q. Did you submit the meeting minutes for approval by the board?
A. I did.
Q. And did the board in fact approve them?
A. They did.
Q. So the January 9, '07 meeting minutes had been approved. I mean, they're kind of there.
A. They are.
Q. We're not going to see a changed version pop up somewhere; right?
A. You're correct.
....
Q. At the second page on HOA 000093, it says at the top, the membership agreed to adjourn the meeting and to reconvene the meeting on February 13, '07 for the purpose of obtaining additional proxies to vote for candidates of the ARC. Do you see that?
*1195 A. Yes, I do.
Q. Is that the announcement that was given at the January 9, '07 meeting?
A. not in full.
Q. How does it differ?
A. Because at the meeting it was announced the time and place as well. That's not reflected in the minutes.
Q. Why isn't it reflected in the minutes?
A. When I became secretary I was advised by our legal counsel to keep the minutes brief and, if anything, be on thedon't over-elaborate. I try to keep the minutes very brief and justI go a little further than saying whatstrictly what motions were made. But I try to keep it brief and concise. That's all I can tell you. I mean, it wasn't to deliberately hide something, if that's what you're asking.
The minutes of all meetings of the members of an association are part of the official records of a homeowner's association. § 720.303(3),(4)(f), Fla. Stat. (2007). Nevertheless, Copper's testimony that the minutes were accurate does not render irrefutable the notion that only the new date was orally announced when the January 9 meeting was adjourned. First, the relocation of the agreed date to reconvene does not mean that the place and time were not also stated, especially where, as here, the date was the only thing to change, not the time or place. Also, as Association correctly observes, parol evidence may be introduced to complete or to clarify ambiguous corporate minutes. Wimbledon Townhouse Condo. I, Ass'n v. Wolfson, 510 So. 2d 1106 (Fla. 4th DCA 1987) (condo association could offer parol testimony of its manager to show that association board approved special assessments even though minutes failed to so reflect). Secretary Copper's deposition testimony that the president announced the date, time and place for the reconvened February 13 meeting in adjourning the January 9 meeting amounts to such parol evidence, amplifying the corporate minutes. At most, the lack of express reference to the same time and place in the minutes would give rise to an issue of fact, not avoid one. In light of the unequivocal deposition testimony of Copper that verbal notice of the date, time and place of the continued meeting was given, Developer cannot establish the absence of a material issue of fact by relying on the minutes.
DISMISSAL v. ABATEMENT
Association also contends that it was error for the court to enter a judgment dismissing its action. Association complains that dismissal has caused it to lose a portion of its claim because Association filed its action on June 29, 2007, one day before the applicable statute of repose was reduced from fifteen to ten years. § 95.11(c)(3), Fla. Stat. (2008). Thus, if Association were required to obtain new approval from its members to bring suit, its refiled suit would only encompass defects within the last ten years.
Developer claims that section 720.303(1), Florida Statutes, by requiring an association to obtain the affirmative approval of membership before commencing litigation in excess of $100,000, constitutes a statutory condition precedent to bringing suit. This is a statutory limitation on the authority of the Homeowners' Association to commit the resources of the Association to litigation, designed for the protection of its members, which, if violated, the members may or may not elect to enforce. It is not a condition precedent running in favor of a defendant to the right of an association to file suit to recover *1196 damages on behalf of the Association. Although we agree that because of its status as an owner with voting interests, Developer has the right to complain about defective notice of a meeting at which it and other members were entitled to vote, Association's failure to obtain proper notice is not an affirmative defense to the suit for construction defects. Developer properly concedes that if it were not a member of Association, lack of valid authority of the members to file suit would not be a defense to the claims. It would be a ground for any aggrieved Association member to enjoin Association from prosecuting the lawsuit, but Developer, as owner, at most, could be entitled to abatement until the asserted defect in notice is rectified and approval obtained.
REVERSED and REMANDED.
TORPY and COHEN, JJ., concur.
NOTES
[1] The lawsuit initially named as defendants Orlando Lake Forest Joint Venture, Orlando Lake Forest, Inc., and NTS Mortgage Income Fund. By first amended complaint filed on July 31, 2007, OLF II Corp. and Orlando Capital Corp. were added as defendants.
[2] Developer transferred ownership of the common areas to Association in a piecemeal fashion, with the last conveyance occurring on November 15, 2007. Developer had retained control of Association until September 13, 2005, when turnover of control of the Board of Directors occurred.
[3] § 720.303(1), Fla. Stat. (2007).
[4] Developer urges that the summary final judgment should be sustained under the "Tipsy Coachman Rule" because this statute requires a majority of all voting interests, not a majority of voting interests present at the meeting where approval is given. We reject this reading of the statute. First, it would render superfluous the quorum requirement. Also, it does not appear to be consistent with legislative intent when viewed in the context of the entire statute.
[5] The minutes were revised on December 14, 2007, to add "at 7:00 p.m. at the Lake Forest Clubhouse." These revised minutes were attached to Copper's December 14, 2007, affidavit in opposition to Developer's motion for summary judgment.
[6] We conclude a member has the right to complain about improper notice, whether in attendance at the meeting or not and, therefore, we reject the Association's claim of waiver. Similarly, we see no merit in Developer's several claims of misrepresentation or misconduct by Association and see no need to discuss them further.
[7] "Adjourned"to suspend indefinitely or until a later stated time. Webster's New Collegiate Dictionary, p. 15 (1973).
[8] Because of the Legislature's use of the disjunctive, it is not clear that anything more than the changed "date, time or place" must be announced. § 720.306(7), Fla. Stat. (2007). In this case, the time and place did not change.
[9] Association did subsequently, in advance of the hearing on the motion for summary judgment, amend the minutes and an affidavit of Copper was filed. If these were truly inconsistent with Copper's deposition testimony, they might be disallowed under the cases cited by Developer, but those are not the facts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568220/ | 139 F.2d 743 (1943)
FRATTA
v.
GRACE LINE, Inc.
No. 58.
Circuit Court of Appeal, Second Circuit.
November 17, 1943.
Jacob Rassner, of New York City, for appellant.
Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Walter X. Connor, Vernon Sims Jones, and James B. Magnor, all of New York City, of counsel), for appellee.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
Adoph Fratta was employed as a seaman from March 10, 1938, to July 11, 1938, aboard defendant's vessel, S.S. "Santa Inez." He died of cancer of the stomach on August 16, 1939. There was testimony from which the jury might reasonably believe that, while in defendant's employ, he ate bad food served to him by defendant. The sole question is whether there was sufficient evidence to go to the jury on the issue of whether the eating of the bad food was a contributing cause of the cancer.[1] There *744 was evidence indicating that Fratta was suffering from a gastric ulcerous condition before and while he was employed by defendant. There was expert testimony that the eating of bad food could cause or aggravate such an ulcerous condition. While some of the expert testimony was to the effect that the eating of bad food did not, and could not, cause or contribute to cancer, one physician, Dr. Engel, who sufficiently qualified as an expert, testified that the eating of poor food or bad food would so aggravate a gastric ulcer as to lead to cancer; he stated that, basing his opinion on the hospital records which were in evidence, he was of the opinion that "there was a sequence between the initial ulcer and the subsequent cancer." Whatever the trial judge may have thought of the competence of the respective experts, it was not within his province to pass upon that issue. Accordingly, the trial judge erred in directing a verdict.
We take this occasion to suggest to trial judges that, generally speaking although there may be exceptions it is desirable not to direct a verdict at the close of the evidence, but to reserve decision on any motion therefor and allow the jury to bring in a verdict; the trial judge may then, if he thinks it improper, set aside the verdict as against the weight of the evidence and grant the motion, Federal Rules of Civil Procedure, rule 50(b), 28 U.S.C.A. following section 723c, with the consequence that if, on appeal, we disagree with him, we will be in a position to reinstate the verdict, thus avoiding the waste and expense of another trial.
Reversed.
NOTES
[1] Defendant argues that plaintiff's complaint alleged that Fratta's death was due merely to the failure of defendant to furnish adequate medical and surgical aid while he was in defendant's employ, after he became ill, and mentioned nothing about his death having been caused by an ulcer which led to cancer. But plaintiff's bill of particulars expressly stated such facts, so that defendant was in no way surprised; it was therefore entirely proper that plaintiff should ask at the close of the case to have her pleadings amended to conform to the proof. The trial court judge in effect granted leave so to amend and in so doing obviously committed no error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568212/ | 10 So. 3d 979 (2009)
Jamie Renee Buchanan McCRAW, Appellant
v.
Eric BUCHANAN and Liz Thornhill, Appellees.
No. 2008-CA-00037-COA.
Court of Appeals of Mississippi.
May 5, 2009.
*980 Joseph Leonard Turney, for Appellant.
Renee M. Porter, for Appellees.
*981 Before KING, C.J., IRVING and ROBERTS, JJ.
KING, C.J., for the Court.
¶ 1. Jamie Renee McCraw (McCraw) appeals a December 4, 2007, judgment of the Marion County Chancery Court granting joint legal custody of her minor child, Ashton Renee Buchanan (Ashton), in both McCraw and Mary Elisabeth Thornhill (Thornhill), the child's paternal grandmother. The judgment also ordered McCraw and Thornhill to share equally the costs of the guardian ad litem. McCraw appeals, raising two issues: (1) whether the chancellor erred in failing to follow the recommendation of the guardian ad litem to grant physical custody of the minor child to the natural parent rather than a third party, and (2) whether the chancellor erred in failing to award McCraw attorney's fees and costs and in assessing guardian ad litem's fees equally against the parties without any consideration of McCraw's financial abilities. Finding no error, we affirm the judgment of the chancellor.
FACTS
¶ 2. Eric Buchanan (Buchanan) and McCraw were married on June 30, 1997. The couple lived together as husband and wife until they finally separated on June 15, 1999. Buchanan and McCraw had one child, Ashton, born on October 21, 1997, who is the minor child of this dispute. On July 8, 1999, Buchanan and McCraw filed for divorce on the ground of irreconcilable differences and included a child custody, child support, and property settlement agreement. On November 9, 1999, McCraw amended the complaint requesting a divorce on the ground of habitual cruel and inhuman treatment and seeking physical custody of Ashton. On September 21, 2000, the trial court gave temporary custody of Ashton to McCraw and reasonable visitation to Buchanan. Buchanan was ordered to pay $160 per month in child support and $40 per month in transportation costs.
¶ 3. On December 5, 2000, Buchanan and McCraw agreed to a divorce based on irreconcilable differences and agreed to share joint legal custody of Ashton with primary physical custody placed in McCraw. Buchanan was granted visitation rights in alternate two-week periods and at other specified time periods, and he was ordered to pay $175 per month in child support. A final judgment of divorce was entered on December 13, 2000.
¶ 4. Over the next several years, Buchanan and McCraw were unable to effectively share joint legal custody of Ashton. During this time, the parties filed various requests for the court's intervention such as a motion for emergency custody, a petition for custody, a motion for relief from judgment, and a complaint for modification of custody. On March 6, 2002, the chancellor directed the parties to adhere to the provisions of the December 13, 2000, decree.
¶ 5. On July 6, 2004, Buchanan and his mother, Thornhill, jointly filed a petition for custody of Ashton and other relief, requesting that the chancellor give Buchanan primary physical custody and McCraw specified visitation. Because Buchanan had been convicted and was incarcerated for a drug offense when the petition was filed, Ashton would primarily be residing with Thornhill. On January 12, 2005, the court continued a scheduled custody hearing and directed Buchanan to exercise his custody of Ashton in the home and presence of Thornhill.
¶ 6. On July 26, 2006, an agreed order was entered granting legal custody of Ashton to both McCraw and Thornhill. The order provided scheduled visitation to *982 Thornhill, ordered that Ashton continue to receive counseling, and directed that Ashton's social security check be deposited into a court-administered guardianship registry. McCraw and Thornhill were ordered to serve as co-guardians of the funds. The funds from this account were to be distributed to McCraw to meet Ashton's needs as per the court order.
¶ 7. On September 28, 2006, Thornhill filed a complaint to cite McCraw for contempt of court and petitioned the court for modification of custody. In that complaint, Thornhill alleged that McCraw had failed to comply with the terms of the July 2006 order. In response to Thornhill's petition, McCraw filed a counter-petition requesting the court to grant McCraw sole legal custody of Ashton and reduce Thornhill's visitation to correspond to the standard minimal visitation awarded a natural parent.[1] On January 16, 2007, following a hearing on a motion for appointment of guardian ad litem, the chancellor appointed James D. Johnson as guardian ad litem to represent Ashton in these proceedings. The chancellor also ordered each party to deposit $400 into the court's registry as payment toward the fees of the guardian ad litem.
¶ 8. At the April 14, 2007, hearing on Thornhill's emergency motion for immediate custody of Ashton, the chancellor directed Johnson to increase home visits and to see Ashton on the days when she was in the homes of McCraw and Thornhill. The Mississippi Department of Human Services was ordered to conduct an unannounced home study of both parties. The Pine Belt Mental Healthcare Resources was directed to produce up-to-date records to the attorneys for the parties, the trial court, and the guardian ad litem. Dr. John Pat Galloway, court-appointed psychologist, was directed to interview Ashton and the parties. Based on information provided to the court by Dr. Galloway, on July 11, 2007, the chancellor ordered the Mississippi Department of Human Services to conduct an investigation of McCraw. After a hearing on September 4, 2007, the chancellor ruled on December 4, 2007, that McCraw and Thornhill would have joint legal custody of Ashton with primary physical custody vested in Thornhill. McCraw was given visitation privileges, and both McCraw and Thornhill would serve as co-guardians of the guardianship established for Ashton. The chancellor also ordered both McCraw and Thornhill to pay the costs of Johnson, the guardian ad litem. Aggrieved, McCraw timely appeals.
STANDARD OF REVIEW
¶ 9. In cases reviewing the chancellor's award of child custody, "[r]eversal of a chancellor's judgment occurs only if a chancellor is `manifestly wrong' or `applied an erroneous legal standard.'" J.P. v. S.V.B., 987 So. 2d 975, 978-79(¶ 7) (Miss. 2008) (citations omitted). The appellate court "will not reverse the chancellor's `factual findings where there is substantial evidence in the record supporting these findings of fact.'" Id.
ANALYSIS
I. Whether the chancellor erred in failing to follow the recommendation of the guardian ad litem to grant physical custody of the minor child to the natural parent rather than to a third party.
¶ 10. McCraw contends that the trial court erred in failing to follow the recommendation of the guardian ad litem to *983 grant the natural mother primary physical custody of the minor child. McCraw also argues that the chancellor should have made a determination as to her current fitness to parent Ashton before conducting an Albright analysis, which McCraw claims was performed with preference-like consideration toward Thornhill. Thornhill contends that the chancellor's ruling was proper because McCraw failed to comply with the terms and provisions of the July 26, 2006, custody order. Thornhill alleges that: she was denied her scheduled visitation; McCraw failed to take Ashton to Ashton's scheduled doctor appointments and counseling sessions; and McCraw failed to deposit Ashton's social security check into the court-administered guardianship registry.
A. Recommendation of the Guardian ad litem
¶ 11. Pursuant to Mississippi Code Annotated section 93-5-23 (Supp. 2008), in child custody cases where allegations of abuse are at issue, a guardian ad litem shall be appointed. See also Robison v. Lanford, 841 So. 2d 1119, 1126(¶ 22) (Miss.2003). "Although [the Mississippi Supreme Court] has required a guardian ad litem to perform tasks competently, there is no requirement that the chancellor defer to the findings of the guardian ad litem, as is proposed by the petitioners. Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts." S.N.C. v. J.R.D., 755 So. 2d 1077, 1082(¶ 17) (Miss.2000).
¶ 12. However, the supreme court has held that:
A chancellor shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in the court's findings of fact and conclusions of law. Further, we hold that when a chancellor's ruling is contrary to the recommendation of a statutorily required guardian ad litem, the reasons for not adopting the guardian ad litem's recommendation shall be stated by the court in the findings of fact and conclusions of law.
Id. at (¶ 18).
¶ 13. We find that the allegations complained of by Thornhill did not mandate the appointment of a guardian ad litem. Therefore, the appointment of the guardian ad litem by the chancellor was discretionary. Notwithstanding the fact that the appointment of a guardian ad litem was discretionary, the chancellor noted in his findings of fact and conclusions of law his consideration of the reports of Dr. Galloway and that of the guardian ad litem. The chancellor stated in his findings that he gave careful consideration to the guardian ad litem's recommendations as well as the reports, opinions, and testimonies of other witnesses. The chancellor observed that his consideration of the facts led him to a conclusion different than that of the guardian ad litem as to which party should have primary physical custody of Ashton. While the appointment of a guardian ad litem was not mandatory, the chancellor gave specific reasons for declining to follow the guardian ad litem's recommendation. This issue is without merit.
B. Fitness of Parent and Custody
¶ 14. "It is true that there is a presumption that a natural parent is the proper custodian for their child. However, it has been stated many times that this presumption can be overcome by a clear showing that the parent is unfit." In re Custody of M.A.G., 859 So. 2d 1001, 1003(¶ 5) (Miss.2003) (internal citations omitted). In fact, Mississippi Code Annotated section 93-13-1 (Rev.2004) states in pertinent part: "if any father or mother be *984 unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person...."
¶ 15. "[A] finding of unfitness is necessary to award custody to a third party over a natural parent. This finding is necessary before the court can decide the best interests of the children." In re Guardianship of Brown, 902 So. 2d 604, 609(¶ 14) (Miss.Ct.App.2004) (citations omitted). "Grandparents have no right of custody of a grandchild, as against a natural parent, a premise reflected in our frequent statements, in custody contests between a parent (or parents) and grandparents, the parent(s) prevail absent a showing they have abandoned the child or are otherwise totally unfit." Ethredge v. Yawn, 605 So. 2d 761, 764 (Miss.1992).
¶ 16. The chancellor filed a memorandum opinion that included the history of this case, a discussion and analysis of the evidence before him, and a discussion of his findings of facts and conclusions of law. While noting this to be an atypical custody case, the chancellor's opinion provided a thorough analysis of the Albright factors and specifically addressed the parental fitness of McCraw. In that opinion, the chancellor found that:
The totality of the evidence ... leads the Court to find as fact and conclude that McCraw's life from the time she and Buchanan were together, both before and after their marriage, has been marked with a rather tumultuous environment greatly lacking in stability, demonstration of determination, and in strength of character. The result has been exposure of Ashton to activities and circumstances not conducive to her best interest and welfare. Instances of inappropriate sexual behavior by McCraw in the presence of the child, engaging in drug use with Buchanan before their separation, cohabitation with one or more persons to whom she was not married, and all that at times when Ashton was in her care and was present, demonstrate a lack of thoughtful maturity and responsibility requisite to the proper care, training and upbringing of a child, and particularly up to the present age of Ashton.
¶ 17. Further, the chancellor noted that McCraw "effected at least partial abandonment of Ashton by voluntarily giving [Buchanan] one-half of the physical custody from the divorce, and later surrendered [an] even greater portion of physical custodial time to him, and ultimately when [Buchanan] became non-available because of his criminal behavior and conviction, McCraw agreed to surrender joint legal custody and substantial physical custody for Ashton to [Thornhill]...."
¶ 18. The chancellor effectively found that McCraw was an unfit parent, while holding out hope that with some assistance, she might be rehabilitated. Based upon that belief of possible rehabilitation, the chancellor made a determination that it was in the best interest of Ashton that her primary custody be placed with her grandmother, but with McCraw continuing to have a role in Ashton's life. The ultimate consideration in matters of child custody is the best interest of the child. See Alderson v. Alderson, 810 So. 2d 627, 629(¶ 5) (Miss.App.Ct.2002). The chancellor specifically noted and gave proper consideration to the guardian ad litem's recommendation, and he stated why he felt the best interest of Ashton required that Thornhill have primary custody. Given the chancellor's findings, we cannot say that he abused his discretion. This issue is without merit.
II. Whether the chancellor erred in failing to award attorney's fees and costs to McCraw and in assessing *985 guardian ad litem's fees equally against the parties without any consideration of McCraw's financial abilities.
A. Guardian ad litem Fees
¶ 19. McCraw argues that the appointment of a guardian ad litem was not mandatory, but it was done for the benefit of Ashton. Therefore, McCraw contends that the guardian ad litem fees should be paid from the monthly social security check that Ashton receives. Thornhill contends that Ashton's guardianship should not have to pay because this action is in no way the fault of Ashton, nor is it in the best interest of Ashton to pay the fees.
¶ 20. "Our rules of procedure treat guardian ad litem fees as court costs to be awarded against the non-prevailing party." Miss. Dep't of Human Servs. v. Murr, 797 So. 2d 818, 821(¶ 9) (Miss.2000). Mississippi Rule of Civil Procedure 17(d) specifies that the fees of the guardian ad litem are to be considered as part of the costs of an action and states that:
Whenever a guardian ad litem shall be necessary, the court in which the action is pending shall appoint an attorney to serve in that capacity. In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the costs in such action.
¶ 21. "Chancery courts have large discretion in apportioning costs. Nevertheless, the exercise of such discretion is not final, but is reviewable on appeal, and if it appear [sic] that the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed." Ashburn v. Ashburn, 970 So. 2d 204, 217(¶ 34) (Miss.Ct.App. 2007).
¶ 22. The chancellor in the case at bar found it advisable to appoint a guardian ad litem, Johnson, to represent Ashton's best interest, to investigate allegations of abuse, and to report any findings of abuse to the trial court. The chancellor, within his discretion, could have assessed the total amount of costs and fees to McCraw, who is considered the non-prevailing party. However, the chancellor assessed the guardian ad litem's fees equally against the parties. There is no evidence in the record to indicate that the apportionment of the cost for the guardian ad litem was an undue burden to either party. We find that the chancellor did not abuse his discretion in equally assessing the guardian ad litem fees to the parties.
B. Attorney's Fees
¶ 23. McCraw contends that the extensive attorney's fees and costs are the result of a large number of unfounded claims by Thornhill that she was forced to defend. McCraw claims the chancellor did not consider that her financial means were limited when assessing costs and fees. McCraw asserts that she has two other small children to care for, is a low-wage earner, is less educated and less capable of paying reasonable attorney's fees and costs than Thornhill, and the assessed fees would be an undue hardship on her and her family. Thornhill asserts that McCraw did not present her financial situation to the chancellor, nor did she put a financial declaration into the record.
¶ 24. "[A]ttorney fees are not normally awarded in child custody modification actions." Mixon v. Sharp, 853 So. 2d 834, 841(¶ 32) (Miss.Ct.App.2003). "The chancery court is charged to give adequate consideration to the `financial abilities' of the parties to pay any assessed *986 fees, and then how should the same be apportioned, if any." In re the Adoption of K.M.J. and E.S.J. Minor Children, 758 So. 2d 402, 404(¶ 10) (Miss. 2000). "Generally, attorney's fees should only be awarded where the moving party has demonstrated an inability to pay. However, attorney's fees may also be properly awarded where one party's actions have caused the opposing party to incur additional legal fees." Stuart v. Stuart, 956 So. 2d 295, 299(¶ 20) (Miss.Ct. App.2006) (citations omitted).
¶ 25. The chancellor could have considered McCraw's financial ability in the assessment of costs and fees. However, McCraw failed to present any evidence that spoke to her inability to pay the fees and costs assessed. The record indicates that after Johnson filed an application for partial payment of guardian ad litem fees, the chancellor filed an order on three separate occasions directing the parties to make a partial payment of $400 toward the guardian ad litem's fees. At no time during these proceedings did McCraw inform the court of any inability to pay. There is no showing of any abuse of discretion by the chancellor. Therefore, this assignment of error is without merit.
¶ 26. THE JUDGMENT OF THE MARION COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
NOTES
[1] In McCraw's petition, she used the term "natural parent"; however, we note that Thornhill is not Ashton's natural parent, as she is the parental grandparent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/488842/ | 819 F.2d 1036
44 Fair Empl. Prac. Cas. (BNA) 101,44 Empl. Prac. Dec. P 37,378,106 Lab.Cas. P 34,924, 8 Fed. R. Serv. 3d 331,23 Fed. R. Serv. 744
Jessica B. FEAZELL, Plaintiff-Appellant,v.TROPICANA PRODUCTS, INC. Defendant-Appellee.
No. 86-3314.
United States Court of Appeals,Eleventh Circuit.
June 22, 1987.
Robert F. McKee, Tampa, Fla., for plaintiff-appellant.
Steven L. Brannock, Holland & Knight, Tampa, Fla., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before GODBOLD and HILL, Circuit Judges, and ESCHBACH*, Senior Circuit Judge.
GODBOLD, Circuit Judge:
1
Jessica B. Feazell, a female employee of Tropicana Products, Inc., filed suit against Tropicana alleging that it violated the Equal Pay Act of 1963, Sec. 6(d)(1) of the Fair Labor Standards Act, 29 U.S.C. Sec. 206(d)(1) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., by willfully discriminating against her on the basis of her sex with regard to her compensation. Feazell's claims under the Equal Pay Act were tried to a jury, and the district court heard the claims under Title VII. Both the jury and the district court found for the defendant, and judgment was entered in favor of Tropicana on all claims.
2
With regard to the Equal Pay Act claims, the jury found that Feazell's job required substantially equal skill, effort, and responsibility, and was performed under similar working conditions as the work performed by Donald Brittain, Charles Donaldson, and "Harold Mussett"1 but that the salaries of the employees were based on factors other than sex. The jury also rendered an advisory verdict finding that Tropicana did not intentionally discriminate against Feazell on the basis of her sex in connection with her salary. On the Title VII claims the district court held that Feazell had established a prima facie case of sex-based discrimination with regard to her compensation by Tropicana but that Tropicana had articulated legitimate non-discriminatory reasons for any differences between her compensation and that of Tropicana's male accounting supervisors, reasons that Feazell failed to prove were pretextual. The district court held that Feazell failed to prove intentional discrimination by Tropicana.
3
On appeal Feazell makes three primary assertions: the district court evaluated Tropicana's evidence in defense of the Title VII claims under an erroneous interpretation of the applicable burden of proof; the district court erred in excluding testimony by Tropicana's management personnel offered as evidence of intentional discrimination and in denying Feazell's motion for a new trial on this ground; and the district court's findings of fact were not sufficiently detailed to permit meaningful appellate review. We affirm.
4
The parties entered into a pretrial stipulation in which they agreed that the burdens of proof and production on the Title VII claims were governed by the principles enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), Furnco Construction Co. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The district court entered a pretrial order stating that the pretrial stipulation was approved and adopted and along with the order was to govern the trial of the case.
5
Feazell's claims turn on allegations that seven male employees were paid more wages than she for substantially equal work. At trial Feazell attempted to introduce the testimony of Wingate, who had been a manager in the Financial Department at Tropicana, and the deposition testimony of Mattson, who at the time of the deposition was manager of Tropicana's Payroll and Accounts Payable Departments, as evidence of intentional discrimination by Tropicana. In an effort to establish the attitudes of Rossi, the founder of Tropicana and its president until it was sold to Beatrice Foods, and Ogleby, its Vice President of Finance, Feazell asked Wingate:
6
In your position as a manager in the financial department at Tropicana, did you ever express the view that Mr. Rossi and Mr. Ogleby did not pay women as much as men?
7
Tropicana's objection to this question as irrelevant personal opinion was sustained by the court.
8
Feazell later attempted to introduce the following deposition testimony of Mattson:
9
Q: Were you employed at Tropicana when Mr. Rossi was there?
10
A: Yes.
11
Q: Were you employed when Mr. Ogleby was there?
12
A: Yes.
13
Q: Did you ever tell George Feazell that Mr. Rossi and Mr. Ogleby did not like to pay women what men were paid?
14
A: Yes.
15
Q: In your opinion is that attitude still prevalent at Tropicana?
16
A: Not as much.
17
Tropicana objected to the testimony as irrelevant, and the district court sustained the objection:
18
What this question is is did you ever tell George Feazell that Mr. Rossi and Mr. Ogleby did not like to pay women what men were paid? His answer was yes. There is no suggestion here that that was, in fact, either Mr. Rossi or Mr. Ogleby's belief, opinion or that they had ever made such a statement. This is this witness's testimony that that's what he told George Feazell. We don't know whether its true or not....
19
* * *
20
[i]f [Wingate and Mattson's] opinion becomes material, then you may elicit their opinion, but not with that background, and there is no basis set forth for this opinion to get a manager from Tropicana, put him on the stand and say, in your opinion, does Tropicana discriminate against women? You can't ask him that question that way. You need to lay a predicate showing some basis for which--on which that opinion is predicated and showing some foundation for it. But just to say that because he has a position in the firm, in Tropicana and he has the personal opinion that Tropicana discriminates against women is not....
21
Feazell timely filed a motion for new trial challenging the district court's failure to admit the testimony of both Wingate and Mattson into evidence on the ground that their statements were admissions by Tropicana's management personnel admissible under Fed.R.Evid. 801(d)(2)(D). The motion was denied.
22
The district court's conclusion that Tropicana had not violated Title VII rested on extensive factual findings. Plaintiff is a white female who has been employed by defendant Tropicana since March of 1973. She had no previous formal accounting education or experience and was intially employed as a clerk but then promoted to "accountant" in 1978 and to "supervisor-cost accounting" in 1983. Plaintiff completed four accounting classes between 1979 and 1983 but has no college degree or professional certification in accounting. She has received regular increases in salary.
23
The district court found that Feazell had proven that the work she performed required equal skill, effort and responsibility and was performed under similar working conditions as that performed by the seven male supervisors to whom she compared her position and that Tropicana paid a lower wage to her than to such male employees. The court concluded, however, that sex was not a factor in Tropicana's employment decisions and actions regarding the compensation of Feazell and these seven male employees. The court set forth the qualifications, years with Tropicana, and salaries of the seven male supervisors and compared their salaries and raises at various points to those of Feazell. It concluded that the differences between Feazell's salary and that of each male supervisor were based on factors other than sex, including CPA certification, length of service with Tropicana, annual merit raises, promotions, participation in the bonus-buyout,2 years as supervisor, prior accounting experience, college degree in accounting, or refusal to accept a lower initial salary at Tropicana.
I. BURDEN OF PROOF ON TITLE VII CLAIMS
24
Feazell contends that the district court erred when it allocated the burdens of proof and production according to the structure set forth in McDonnell Douglas under which the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for wage disparities once a plaintiff has established a prima facie case of discrimination under Title VII, but the burden of persuasion always remains with the plaintiff alleging sex discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).3 In County of Washington, Oregon v. Gunther, 452 U.S. 161, 101 S. Ct. 2242, 68 L. Ed. 2d 751 (1981) the Supreme Court held that the "Bennett Amendment" to Title VII extended the protection of the four affirmative defenses of the Equal Pay Act to Title VII actions for sex-based wage discrimination and therefore that wage differentials attributable to one of the four affirmative defenses are not unlawful employment practices under Title VII.4 The Court, however, explicitly refrained from deciding how burdens of proof or production should be structured in a Title VII action premised on a claim of sex-based wage discrimination and the Eleventh Circuit has yet to reach the issue. Feazell contends that when a Title VII claim addresses salary discrepancies between male and female employees performing the same work, the burden of proof should be allocated in the same fashion as in actions under the Equal Pay Act, i.e., the burden that shifts to the defendant to rebut a prima facie case of sex-based wage discrimination should be one of both production and persuasion and not of mere production and should be limited to the four affirmative defenses set forth in the Equal Pay Act.
25
We find it unnecessary to reach this issue because of the pretrial stipulation between the parties in which they agreed that the burdens of proof and production in the Title VII action were governed by the principles enunciated in McDonnell Douglas, Furnco and Burdine.
26
Matters stipulated to in a pretrial order are binding on the parties unless modified and normally cannot be objected to on appeal. See Funding Systems Leasing Corp v. Pugh, 530 F.2d 91, 95 (5th Cir.1976); U.S. v. Tampa Bay Garden Apartments, Inc., 294 F.2d 598, 606 (5th Cir.1961). Pretrial orders control the subsequent course of action unless modified to prevent manifest injustice. Fed.R.Civ.P. 16. Feazell did not attempt to amend the pretrial stipulation and did not object to the application of the McDonnell Douglas framework during trial. She in fact presented her case pursuant to McDonnell Douglas standards. Her first objection to these standards is raised before this court despite the fact that the cases she relies upon existed at the time of her trial. There has been no manifest injustice warranting this court's disregard of the pretrial stipulation and order.
II. EXCLUSION OF TESTIMONY
27
Feazell contends that the district court erred in excluding the testimony of Wingate and the deposition testimony of Mattson and in denying her motion for a new trial on this ground. Determinations of admissibility of evidence rest largely within the discretion of the trial judge and will not be disturbed on appeal absent a clear showing of an abuse of discretion. U.S. v. Russell, 703 F.2d 1243 (11th Cir.), reh'g denied, 708 F.2d 734 (1983). We find that the district court did not abuse its discretion in excluding the testimony.5
28
Wingate was questioned as to his opinion about the salaries paid by Rossi and Ogleby to their male and female employees. The purpose of this question was to establish the attitudes of Rossi and Ogleby, to prove a motive for discriminating against Feazell with regard to her pay. The only information to be obtained from the question as phrased, however, was Wingate's view about his superiors' actions. Because his opinion about his superiors' attitudes was irrelevant unless clearly connected to the attitudes of Rossi and Ogleby, the district court did not err in excluding this question as irrelevant personal opinion.6 Arguably the question posed to Wingate was a question of fact, potentially admissible to prove that Wingate did express this view but not admissible to prove the truth of the matter asserted. Nevertheless, as such it is still irrelevant to the issues at hand--what Rossi and Ogleby thought about paying women or whether they intentionally discriminated against Feazell.
29
The question posed to Mattson--"Did you ever tell George Feazell that Mr. Rossi and Mr. Ogleby did not like to pay women what men were paid?"--is arguably admissible as a question of fact, introduced not for the truth of the matter asserted but rather to establish the making of the statement. Yet the follow-up question--"In your opinion is that attitude still prevalent at Tropicana?"--was clearly an opinion question properly excluded as irrelevant, and plaintiff's counsel did not ask follow-up questions that would have made the preceding fact question relevant to the inquiry before the court. As noted by the court, there was no suggestion that Rossi and Ogleby in fact had this attitude or that they themselves had ever made such statements. Counsel, therefore, never connected the fact question to the issue in the case--the attitudes of Rossi and Ogleby.
30
Nor did plaintiff's counsel ever connect Mattson's statement to the time frame in the case. As pointed out by counsel for the defendant, plaintiff's counsel never laid a predicate as to when this conversation took place and therefore never established that the statement was relevant to the time period under consideration; the question attempting to do this was properly excluded as an irrelevant opinion. Without the appropriate follow-up questions the fact question became of no great consequence. The district court recognized this when it stated that Mattson's opinion was not material. The court therefore did not abuse its discretion in excluding this testimony.7
31
Even if there is slight potential relevance to the testimony of either Wingate or Mattson, the district court's failure to admit the testimony was harmless error given the strength and extent of the evidence presented by Tropicana and found by the jury and the district court to justify the wage differentials. This third party opinion evidence would have had only negligible impact at most.
III. SUFFICIENCY OF FINDINGS OF FACT
32
Fed.R.Civ.P. 52(a) required the district court to issue findings of fact and conclusions of law on the Title VII claims. Plaintiff contends that the district court's findings of fact are so insufficient and ambiguous as to preclude meaningful appellate review. When the district court compared Feazell's qualifications and salary to those of the seven male employees, it found that the salary differentials "were based on factors other than sex including" longer service with Tropicana or as a supervisor, a college degree in accounting, CPA certification, prior supervisory experience, or refusal to accept a lower initial salary. Feazell argues that this failure by the district court to state specifically which additional "factors other than sex" contributed to the salary differential between Feazell and an other employee, and in particular what portion of a salary differential was due to an articulated factor and what portion was due to unarticulated "factors other than sex," precludes her from demonstrating that the district court's conclusions regarding pretext were erroneous and renders this court incapable of determining whether the district court's ultimate conclusions on the Title VII claims were clearly erroneous.
33
Much of Feazell's argument boils down to a complaint about the court's failure to specify what portion of any salary differential was attributable to a certain factor and what portion was attributable to other unspecified factors. Feazell also complains about the district court's failure to address the factor of tenure with regard to those employees with less tenure than she on the ground that this court does not know whether the district court determined whether Tropicana gave tenure the same weight in each salary decision.8
34
Although Fed.R.Civ.P. 52(a) requires specific findings of fact, it does not require a finding on every contention raised by the parties. "The findings and conclusions we review must be expressed with sufficient particularity to allow us to determine rather than speculate that the law has been correctly applied." Hydrospace-Challenger, Inc. v. Tracor/MAS, Inc., 520 F.2d 1030, 1034 (5th Cir.1975). District court findings "must be sufficiently detailed to give [the appellate court] a clear understanding of the analytical process by which the ultimate findings were reached and to assure [the appellate court] that the trial court took care in ascertaining the facts." Golf City, Inc. v. Wilson Sporting Goods Co., 555 F.2d 426, 433 (5th Cir.1977); see also Doyal v. Marsh, 777 F.2d 1526, 1534 (11th Cir.1985). The district court's findings were sufficiently detailed to meet this standard.
35
The district court set forth detailed findings of fact. It evaluated the evidence carefully, setting forth the qualifications of Feazell and the seven male supervisors at issue and comparing Feazell's salary at the time of promotion to supervisor, or certain of her salary increases while supervisor, to those of the seven male employees.9 These findings were the factual predicate for its conclusions of ultimate fact and demonstrate that the court took care in ascertaining the facts. The thought process of the district court is evident; the court's ultimate findings were not couched in conclusory terms without support. All of the findings, when read together, demonstrate that the district court's ultimate findings on the Title VII claim were not clearly erroneous.10 We therefore hold that the district court's findings of fact were sufficient.
36
AFFIRMED.
*
Honorable Jesse E.Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation
1
There is some confusion here as there is no such person as "Harold Mussett;" the jury was apparently referring to either Harold Sebert or James Mussett
2
A bonus-buyout in 1981 terminated a previous profit sharing program participated in by all supervisory personnel by permanently adding to each participant's annual salary an amount equal to the bonus the participant was entitled to receive in the last year of the program. Feazell was not entitled to participate in this program because she did not become a supervisor until after 1981
3
Under McDonnell Douglas the plaintiff first has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant to articulate some legitimate non-discriminatory reason for the differential treatment. If the defendant carries this burden, the plaintiff must then have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093; McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25
4
The Bennett Amendment to Title VII, 42 U.S.C. Sec. 2000e-2(h) provides:
It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of title 29.
The Equal Pay Act, 29 U.S.C. Sec. 206(d)(1) provides:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.
The Bennett Amendment, however, does not preclude recovery under Title VII for a claim of discriminatory compensation where the jobs are not substantially equal. Gunther, 452 U.S. at 178-79, 101 S.Ct. at 2252.
5
A district court's denial of a motion for a new trial is also evaluated under the abuse of discretion standard. U.S. v. Branca, 677 F.2d 59, 61 (11th Cir.1982). We therefore do not address this issue independently, and our holding with regard to the exclusion of the testimony applies equally to the denial of a new trial
6
Even assuming that such evidence is remotely relevant in that it has a tendency to make the existence of a fact--intentional discrimination--more probable than it would be without the evidence, its probative value is substantially outweighed by the danger of unfair prejudice to the defendant given its lack of substantiation. See Fed.R.Evid. 401, 403
7
Because we hold that the testimony was irrelevant, we need not reach the issue of whether the statements were vicarious admissions under Fed.R.Evid. 801(d)(2)(D)
8
The fourth issue raised by Feazell on appeal--"whether the district court applied the correct legal standard in evaluating the sufficiency of Tropicana's defense to the Title VII claims"--is in fact a restatement of this same complaint. Feazell contends that Tropicana's rebuttal evidence was legally insufficient even when measured under the McDonnell Douglas standard. She argues that because Tropicana failed to explain how its company-wide seniority and supervisory seniority impact upon an employee's salary, such factors cannot constitute sufficient rebuttal evidence even under the McDonnell Douglas burden of production
The defendant's burden under McDonnell Douglas is to produce evidence that articulates a legitimate non-discriminatory reason for the action at issue and that frames the factual issue with sufficient clarity to give the plaintiff a full and fair opportunity to demonstrate pretext. Burdine, 450 U.S. at 255-56, 101 S. Ct. 1094-95. Feazell argues that by failing to explain just how company seniority or supervisory experience affects salaries, Tropicana denied her a full and fair opportunity to demonstrate that these profferred reasons were pretext.
According to Feazell, the problems inherent in such a rebuttal are remedied under the Equal Pay Act by requiring a defendant who attempts to rebut a prima facie showing of wage discrimination by relying on differences in seniority to show that the varying compensation levels at issue resulted from the application of a seniority "system." She argues that this same requirement should be inserted into Title VII. She does not argue that the law required the district court to apply this requirement, only that this court should adopt this requirement. It is not for this court to insert new standards into Title VII. Tropicana articulated non-discriminatory reasons for the wage differentials, and the district court was not clearly erroneous in finding that Tropicana thus satisfied its burden of production.
9
Tropicana had no clear salary grade classification system: persons in identical jobs might not earn the same salaries because salaries at any level were determined by an employee's initial salary (which turned on academic degrees, work experience, and market wages), promotion increases and annual merit increases. The nature of Tropicana's method of determining salaries renders it impossible to break down each salary into the percentage component parts plaintiff requests and thereby justifies the district court's analysis. A salary "system" such as Tropicana's is difficult to evaluate but our job is not to reevaluate the evidence, it is only to determine whether the district court's findings were sufficiently detailed to permit meaningful appellate review. The facts found by the district court were sufficient
10
The district court's findings of fact, including its findings of non-discrimination, are reviewed under the clearly erroneous standard. Pullman-Standard v. Swint, 456 U.S. 273, 287-290, 102 S. Ct. 1781, 1789-1791, 72 L. Ed. 2d 66 (1982); ACLU of Georgia v. Rabun County, 698 F.2d 1098, 1110 (11th Cir.1983) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1568249/ | 139 F.2d 671 (1943)
ROGAN
v.
STARR PIANO CO., PACIFIC DIVISION.
No. 10379.
Circuit Court of Appeals, Ninth Circuit.
December 27, 1943.
Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, A. F. Prescott, Homer R. Miller, and Fred Youngman, Sp. Assts. to the Atty. Gen., and Charles H. Carr, U. S. Atty., and E. H. Mitchell and Edward J. O'Connor, Asst. U. S. Attys., all of Los Angeles, Cal., for appellant.
Claude I. Parker and John B. Milliken, both of Los Angeles, Cal., for appellee.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
MATHEWS, Circuit Judge.
Two California corporations appellee and Gennett Realty Company, hereafter called Gennett were merged in 1934 under and pursuant to § 361 of the California Civil Code.[1] Thereupon Gennett's separate existence ceased, and appellee, the surviving *672 corporation, succeeded to all of Gennett's rights and property and became subject to all of Gennett's debts and liabilities.[2] In appellee's income and excess-profits tax return for 1934, no gain or loss was shown to have resulted from the merger. The Commissioner of Internal Revenue determined that, upon receipt of Gennett's property as a result of the merger, appellee realized gain, and that such gain was recognizable for income and excess-profits tax purposes. He accordingly determined and assessed a deficiency in respect of appellee's income and excess-profits taxes for 1934. Appellee paid the assessed amount ($73,557.08) on March 3, 1938, to Nat Rogan, the then Collector of Internal Revenue for the Sixth Collection District of California, and, its claim for refund having been denied, brought an action against Rogan to recover said amount as having been illegally assessed and collected. Rogan answered, jury trial was waived, the facts were stipulated, the case was submitted, and judgment was entered in appellee's favor. From that judgment Rogan took this appeal.[3]
The parties stipulated (1) that "the deficiency in Federal income and excess-profits taxes paid by plaintiff [appellee] on March 3, 1938, was occasioned by the Commissioner of Internal Revenue's determination that gain or loss was recognizable for Federal income and excess-profits tax purposes upon receipt by plaintiff of [Gennett's] property as a result of the merger;" (2) that if that determination was incorrect, "plaintiff is entitled to recover as prayed for;" and (3) that if that determination was correct, "the said deficiency was correctly computed * * * and plaintiff is not entitled to recovery in this action." The facts are these:
On February 1, 1921, Clara Howes Mackey leased to appellee for a term of 99 years certain real property in Los Angeles, California. On March 1, 1921, Arthur N. Pelton leased to appellee for a term of 99 years other real property in Los Angeles. In May, 1922, appellee caused Gennett to be organized for the purpose of holding legal title to the leases. On July 17, 1922, appellee transferred the leases to Gennett in exchange for all of Gennett's capital stock. At all times during Gennett's existence appellee owned all of Gennett's outstanding stock. On August 1, 1922, Gennett subleased the Mackey and Pelton properties to appellee for a term of 15 years ending July 21, 1937. In 1922 Gennett issued bonds in the sum of $200,000 and, with the proceeds thereof, constructed a building on the Pelton property. On July 1, 1923, appellee and Gennett subleased the Pelton property to Bullock's, a California corporation, for a term of 25 years ending June 30, 1948. On May 1, 1924, that term was extended to April 30, 1984. Also, on May 1, 1924, appellee and Gennett subleased the Mackey property to Bullock's for a term of 60 years ending April 30, 1984.
*673 Gennett's officers and directors were employees of appellee. Gennett had no office separate and apart from appellee, had no assets except the leases, had no bank account and had no employees except its officers and directors. Its bookkeeping was done by an employee of appellee. Its debts were paid by appellee, and such payments were credited to appellee on Gennett's books. All rentals accruing to Gennett under the subleases were collected by a bank as trustee for Gennett and were applied by the bank to the retirement of Gennett's bonds and to the payment of interest thereon and taxes on the leased properties. For the years 1922, 1923 and 1924, appellee and Gennett filed separate income tax returns. For the years 1925 to 1933, inclusive, they filed consolidated returns. In 1934, prior to the merger, appellee transferred certain accounts to Gennett, to be collected in the name of Gennett. Some of the accounts were so collected. The others were transferred back to appellee. Gennett carried on no activities except as hereinabove set forth.
The merger was effected by an agreement executed, approved and filed in conformity with § 361, supra. The agreement was executed and approved on July 31, 1934. It was filed and became effective on August 1, 1934. It provided, in substance, that appellee should pay all of Gennett's debts and surrender for cancellation all of Gennett's stock, and that all of Gennett's property should be distributed to appellee. These provisions were carried out. As a result, Gennett was completely liquidated.[4]
Thus the property distributed to appellee was an amount distributed in complete liquidation of a corporation. Section 115(c) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 703,[5] provides that amounts so distributed shall be treated as in full payment in exchange for the stock, and that the gain or loss to the distributee resulting from such exchange shall be determined under § 111, but shall be recognized only to the extent provided in § 112, 26 U.S.C.A. Int.Rev.Acts, pages 691, 692. Here the Commissioner determined that gain had resulted to the distributee (appellee) and determined (computed) the amount of such gain under § 111. By the stipulation referred to above, the correctness of that computation was conceded. The question here is, To what extent was the gain resulting to appellee recognizable under § 112? Section 112 provides that, with specified exceptions, the entire amount of such gain shall be recognized. The exceptions claimed to be applicable here are those specified in paragraphs (3) and (4) of § 112(b), reading as follows:
"(3) Stock for stock on reorganization.[6] No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
"(4) Same Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization."
In this case there was a reorganization (a statutory merger)[7] the parties to which were corporations (appellee and Gennett). In pursuance of the plan of reorganization, stock in Gennett was exchanged by appellee for property of Gennett. There was, however, no exchange of stock or securities for stock or securities. Therefore paragraph (3) is inapplicable. Neither corporation exchanged any property for stock or securities in another corporation. Therefore paragraph (4) is inapplicable. We conclude that the entire amount of the gain resulting to appellee was recognizable under § 112.
*674 Appellee says that, if the merger agreement had provided that appellee should issue to itself shares of stock in itself in exchange for Gennett's property, such exchange would fall within paragraph (3) and no gain would be recognized. Whether that is true or not need not be considered, for the merger agreement did not so provide.
Appellee says that, having resulted from a statutory merger, its acquisition of Gennett's property was an acquisition by operation of law. Whether that is true or not need not be considered, for, even if true, it does not alter the fact that recognizable gain resulted to appellee upon such acquisition.[8]
Appellee contends that there was not and could not be (1) a merger of Gennett into appellee and (2) a liquidation of Gennett. We reject this contention and hold that there could be and was both a merger and a liquidation.[9]
Appellee asks us to disregard the fact that, prior to the merger, appellee and Gennett were separate entities.[10] The trial court thought that this should be done. We do not think so. The following language, used in New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S. Ct. 788, 791, 78 L. Ed. 1348, is applicable here:
"As a general rule a corporation and its stockholders are deemed separate entities[11] and this is true in respect of tax problems.[12] Of course, the rule is subject to the qualification that the separate identity may be disregarded in exceptional situations where it otherwise would present an obstacle to the due protection or enforcement of public or private rights.[13] But in this case we find no exceptional situation nothing taking it out of the general rule. On the contrary, we think it a typical case for the application of that rule."[14]
Judgment reversed.
NOTES
[1] Section 361 provides:
"Any two or more corporations may be (a) merged into one of such constituent corporations, which is herein designated as `the surviving corporation,' or (b) consolidated into a new corporation, which is herein designated as `the consolidated corporation,' as follows:
"(1) The board of directors of each corporation by resolution shall approve an agreement which shall set forth the terms and conditions of merger or consolidation, and the mode of carrying the same into effect, as well as the manner and basis of converting the shares of the constituent corporations into the shares of the consolidated or surviving corporation. The agreement also may provide for the distribution of cash, property, or securities, in whole or in part, in lieu of shares, to shareholders of the constituent corporations or any class of them; * * *
"(2) The agreement shall be signed by the president or a vice-president and the secretary or an assistant secretary of each corporation, and acknowledged by the officers executing the same on behalf of their respective corporations.
"(3) The agreement must be approved by the vote of the holders of not less than two-thirds of the issued and outstanding shares of each class, even though their right to vote be otherwise restricted or denied, of each of the constituent corporations, * * *. After such approval by the directors and shareholders has been given, the president or a vice-president and the secretary or an assistant secretary of each corporation shall execute a certificate, which shall be verified by their oath * * *
"(5) * * * The agreement so approved, executed and acknowledged and the certificates of its approval shall be filed with the secretary of state, and shall thereupon become effective, and the several parties thereto shall be one corporation. * * *
"(7) * * * Upon the merger or consolidation, as provided herein, the separate existence of the constituent corporations shall cease, except that of the surviving corporation in case of merger, and the consolidated or surviving corporation shall succeed, without other transfer, to all the rights and property of each of the constituent corporations, and shall be subject to all the debts, and liabilities of each, in the same manner as if the surviving or consolidated corporation had itself incurred them."
[2] California Civil Code, § 361(7), supra.
[3] Subsequently, Rogan having died, his executrix was substituted as appellant.
[4] Cf. Burnet v. Riggs National Bank, 4 Cir., 57 F.2d 980; France Co. v. Commissioner, 6 Cir., 88 F.2d 917; Cerro De Pasco Copper Co. v. United States, 13 F. Supp. 633, 82 Ct. Cl. 442; Trenton Oil Co. v. United States, D.C.E.D. Mich., 41 F. Supp. 887, affirmed in 6 Cir., 122 F.2d 1023; Frelmort Realty Corp. v. Commissioner, 29 B.T.A. 181; Gutbro Holding Co. v. Commissioner, 47 B.T.A. 374.
[5] Title 1 (§§ 1-322) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, pages 664-757, relates to income taxes. Section 702, 26 U.S.C.A. Int.Rev.Acts, page 789, relates to excess-profits taxes. It provides that all provisions of Title 1 except those of § 131, 26 U.S.C.A. Int. Rev.Acts, page 713, shall be applicable in respect of excess-profits taxes, insofar as not inconsistent with § 702.
[6] Section 112(g) defines "reorganization" as including a statutory merger or consolidation.
[7] See footnote 6.
[8] Gutbro Holding Co. v. Commissioner, supra.
[9] Burnet v. Riggs National Bank, supra; Frelmort Realty Corp. v. Commissioner, supra; Gutbro Holding Co. v. Commissioner, supra.
[10] Thus, in effect, we are asked to say that appellee and Gennett were at all times before as well as after the merger a single corporation; that Gennett's property was and always had been appellee's property; that the merger was a useless and meaningless form; and that appellee acquired nothing thereby.
[11] Citing Pullman's Palace Car Co. v. Missouri Pacific R. Co., 115 U.S. 587, 6 S. Ct. 194, 29 L. Ed. 499; Donnell v. Herring-Hall-Marvin Safe Co., 208 U.S. 267, 28 S. Ct. 288, 52 L. Ed. 481; United States v. Delaware, L. & W. R. Co., 238 U.S. 516, 35 S. Ct. 873, 59 L. Ed. 1438; Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250, 69 L. Ed. 634; Klein v. Board of Supervisors, 282 U.S. 19, 51 S. Ct. 15, 75 L. Ed. 140, 73 A.L.R. 679.
[12] Citing Klein v. Board of Supervisors, supra; Dalton v. Bowers, 287 U.S. 404, 53 S. Ct. 205, 77 L. Ed. 389; Burnet v. Clark, 287 U.S. 410, 53 S. Ct. 207, 77 L. Ed. 397; Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S. Ct. 198, 77 L. Ed. 399.
[13] Citing United States v. Lehigh Valley R. Co., 220 U.S. 257, 31 S. Ct. 387, 55 L. Ed. 458; Southern Pacific Co. v. Lowe, 247 U.S. 330, 38 S. Ct. 540, 62 L. Ed. 1142; Chicago, M. & St. P. R. Co. v. Minneapolis Civic & Commerce Ass'n, 247 U.S. 490, 38 S. Ct. 553, 62 L. Ed. 1229; Gulf Oil Corp. v. Lewellyn, 248 U.S. 71, 39 S. Ct. 35, 63 L. Ed. 133.
[14] See, also, United States v. Phellis, 257 U.S. 156, 172-175, 42 S. Ct. 63, 66 L. Ed. 180; Deputy v. DuPont, 308 U.S. 488, 494, 60 S. Ct. 363, 84 L. Ed. 416; Moline Properties v. Commissioner, 319 U.S. 436, 438-441, 63 S. Ct. 1132, 87 L. Ed. 1499. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568305/ | 10 So.3d 463 (2009)
AMERICAN STATES INSURANCE COMPANY
v.
Ellis R. ROGILLIO.
No. 2008-IA-01049-SCT.
Supreme Court of Mississippi.
June 4, 2009.
*465 W. Wright Hill, Jr., Jan F. Gadow, Jackson, attorneys for appellant.
Hollis McGehee, Ronald L. Whittington, Mccomb, attorneys for appellee.
Before GRAVES, P.J., DICKINSON and LAMAR, JJ.
GRAVES, PRESIDING Justice, for the Court.
¶ 1. This interlocutory appeal concerns the denial of a motion to set aside a default judgment. Ellis Rogillio filed a complaint against American States Insurance Company ("American States"), Mississippi Farm Bureau Casualty Insurance Company ("Farm Bureau"), and Bi-County Insurance Agency ("Bi-County"). American States failed to file an answer or otherwise defend the action for more than four months after service of the complaint. As a result, Rogillio obtained a default judgment. Thereafter, American States filed an answer and a motion to set aside the default judgment, which the trial court denied. American States now appeals to this Court.
FACTS
¶ 2. On March 26, 2004, Rogillio was seriously injured while driving on Highway 10 in Tangipahoa Parish, Louisiana. Rogillio was traveling eastbound when a large, seventy-pound metal vise was separated from a vehicle traveling westbound. The vise flew into the eastbound lane of the highway and struck Rogillio, severing his right arm just below the shoulder socket. Rogillio underwent several surgical operations to reattach his arm and to allow him to regain some use of it. He also suffered spinal injuries from the accident. The driver of the vehicle carrying the vise was never identified.
¶ 3. At the time of the accident, Rogillio was employed by J & N Timber, Inc. ("J & N Timber"), and was working within the scope of his employment. J & N Timber is a timber company owned by William B. Netterville. In addition to owning J & N Timber, Netterville had also cofounded a corporation called Clover Hill, LLC ("Clover Hill"), which owned a 2002 Ford F-150 truck. When Rogillio was injured, he was driving this particular truck. Clover Hill had an insurance policy with American States, and this policy provided for a maximum of $25,000 in uninsured motorist coverage. Rogillio made a claim under the Clover Hill policy, and in 2005, American States approved the claim and paid Rogillio $25,000. J & N Timber also had an *466 insurance policy with American States, which provided a maximum of $600,000 in uninsured motorist coverage-$100,000 for each of the six automobiles insured under the policy. This insurance policy is the subject of this case.
¶ 4. In April 2006, Rogillio made a claim under the J & N Timber policy. Keith Anderson, an American States claims specialist, corresponded with Rogillio's counsel for several months regarding this claim. Ultimately, Anderson informed Rogillio that his claim would be denied. Subsequently, on March 9, 2007, Rogillio filed a complaint against Farm Bureau, American States, Bi-County, and John Does 1-5. Rogillio claimed that he was covered by the J & N Timber policy and that he was legally entitled to recover damages in the amount of the liability limits of the policy. On March 12, 2007, American States' registered agent, C.T. Corporation, was served with Rogillio's complaint. American States concedes that it was properly served. On March 15, 2007, Anderson and Rogillio's counsel spoke via telephone regarding Rogillio's lawsuit. The exact contents of this discussion are disputed.
¶ 5. On July 17, 2007, Rogillio filed an application for an entry of default, submitting an affidavit citing the fact that American States had failed to answer or otherwise defend in the action. On the same day, the circuit clerk entered an entry of default. Rogillio filed a motion for default judgment. On July 18, 2007, the trial court entered a default judgment against American States without holding a hearing.
¶ 6. On August 6, 2007, American States filed an answer and affirmative defenses. On August 23, 2007, American States filed a motion to set aside the default judgment. American States argued that it had defaulted because of a "simple clerical error." American States claimed that, under the proper legal standard, the default judgment should be set aside because American States had a legitimate reason for defaulting, because it had a colorable defense to the merits of Rogillio's claim, and because Rogillio would not suffer prejudice if the default judgment were set aside. In the alternative, American States asserted that the default judgment was void because Rogillio did not provide American States with three days' notice of his motion for default judgment. On September 4, 2007, Rogillio filed a response to the motion to set aside, arguing that the default judgment should not be set aside because American States did not have a legitimate reason for defaulting, because it did not have a colorable defense, and because Rogillio would suffer substantial prejudice if the default judgment were set aside.
¶ 7. Also on September 4, 2007, at a hearing before the trial court, both sides presented their arguments regarding the motion to set aside the default judgment. The trial court took the matter under advisement and issued an order on May 29, 2008 denying the motion to set aside the default judgment. In its order, the trial court found that the default judgment had been entered properly and that
the failure of the defendant to respond to the complaint was not due to accident or mistake, nor any conduct of the plaintiff or plaintiff's counsel, but to poor business practices of the defendant and complete inattention to the complaint.... [T]he court finds there is no showing of good cause.
The trial court also stated that "the defendant is entitled to a full defense on the issue of damages, including a jury trial. It is therefore ordered that this cause shall proceed on the issue of damages only, in all respects." Subsequently, American States timely filed a petition for interlocutory appeal, which this Court granted.
*467 ANALYSIS
¶ 8. This Court reviews a trial court's decision regarding a motion to set aside a default judgment for an abuse of discretion. See, e.g., Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987). Although "default judgments are not favored in the law, it does not follow that a party seeking relief from a default judgment is entitled to that relief as a matter of right." Pointer v. Huffman, 509 So.2d 870, 875 (Miss.1987); see also Pittman, 501 So.2d at 387-88 (citations omitted). This Court has stated that "where there is a reasonable doubt as to whether or not a default judgment should be vacated, the doubt should be resolved in favor of opening the judgment and hearing the case on its merits." McCain v. Dauzat, 791 So.2d 839, 843 (Miss.2001) (quoting Sw. Sur. Ins. Co. v. Treadway, 113 Miss. 189, 74 So. 143, 146 (1917)). Nevertheless, this Court has also stated that "[w]e will not reverse unless convinced that the Circuit Court has abused its discretion." H & W Transfer & Cartage Serv., Inc. v. Griffin, 511 So.2d 895, 899 (Miss.1987); see also Bailey v. Georgia Cotton Goods Co., 543 So.2d 180, 182 (Miss.1989) (citations omitted) ("The existence of trial court discretion, as a matter of law and logic, necessarily implies that there are at least two differing actions, neither of which if taken by the trial judge will result in reversal.").
I. Whether the Trial Court Erred in Denying the Defendant's Motion to Set Aside the Default Judgment.
¶ 9. The trial court's "discretion must be exercised in accordance with the provisions of Rules 55(c) and 60(b) as well as the supplementary criteria given validity in the decisions of this Court." Pittman, 501 So.2d at 388. Mississippi Rule of Civil Procedure 55(c) states: "For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Miss. R. Civ. P. 55(c). Mississippi Rule of Civil Procedure 60(b) states, in relevant part:
(b) Mistakes; inadvertence; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
Miss. R. Civ. P. 60(b).
¶ 10. This Court has noted that
[a]scertaining the meaning of the provisions of Rule 55(c) and Rule 60(b)(5) and (6) with any degree of precision simply may not be done for the language is hopelessly open textured. A consideration of the criteria of those rules together boils down almost to a balancing of the equities.
Pittman, 501 So.2d at 388. As a result, this Court applies a three-prong balancing test when determining whether a trial court properly decided a motion to set aside a default judgment. Id.; see also Stanford v. Parker, 822 So.2d 886, 887-90 *468 (Miss.2002). In deciding whether to set aside a default judgment, the trial court must consider
(1) the nature and legitimacy of the defendant's reasons for his default, i.e., whether the defendant has good cause for default, (2) whether [the] defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.
H & W Transfer & Cartage Serv., Inc., 511 So.2d at 898; see also Pittman, 501 So.2d at 388.
A. The Nature and Legitimacy of the Defendant's Reasons for Default
¶ 11. American States argues that all three prongs of the balancing test weigh in favor of setting aside the default judgment entered against it. The first prong concerns the defendant's reasons for defaulting. American States claims that it has a legitimate reason for its default. American States concedes that its registered agent was properly served by Rogillio. It claims that the support staff at its home office in Seattle, Washington committed an "inadvertent clerical error" by placing Rogillio's summons and complaint in the claims file for the Clover Hill policy rather than the claims file for the J & N Timber policy. American States explains that it was first informed of Rogillio's lawsuit by a representative of its codefendant Bi-County, and that this representative provided a courtesy copy of the complaint to American States on March 14, 2007. American States further contends that, although Anderson later saw Rogillio's complaint in the Clover Hill claims file, he assumed it was the courtesy copy of the complaint provided by Bi-County and that American States had still not been officially served by Rogillio. American States asserts that it was only when counsel for Farm Bureau informed American States of the default judgment on August 2, 2007 that it realized that it had been served, had failed to answer, and was, therefore, in default.
¶ 12. This Court has found that similar excuses do not constitute bona fide excuses. In Pointer v. Huffman, the defendant, after being served, mailed information regarding the lawsuit to "the proper company officers," but took no further action until discovering that a default judgment had been entered. Pointer, 509 So.2d at 871, 876. The defendant argued that "default was unintentional and was the result of his complete reliance on his insurance carrier to take all necessary action." Id. at 876. The trial court noted that, despite being an "astute businessman with years of experience dealing with insurance claims and litigation," the defendant never took any steps to determine whether the papers were received or whether an answer had been filed. Id. The trial court denied the defendant's motion to set aside the default judgment. Id. at 872. On appeal, this Court concluded that "[t]o be sure, [the defendant] could have been more diligent in his actions to defend this suit. The trial court, in the exercise of his discretion, so held, and this Court finds no abuse of this discretion." Id. at 876.
¶ 13. In H & W Transfer & Cartage Service, Inc., the defendant, after being served with substituted service, delivered copies of the summons and complaint to its insurance agent, who delivered them to the defendant's liability insurance carrier. H & W Transfer & Cartage Serv., Inc., 511 So.2d at 896. As in Pointer, the defendant then took no further action until it was informed that a default judgment had been entered. Id. In commenting on the defendant's lack of diligence, this Court stated that the defendant prudently forwarded the summons and complaint to its insurance *469 agent upon receipt, but "[i]mprudently, [the defendant] thereafter did nothing, made no follow-up inquiry, and for all practical purposes let the matter drop until some five months later when it found out about the default judgment." Id. at 899. This Court concluded that the defendant's "story" did not amount to good cause justifying a default under the first prong of the balancing test. Id.
¶ 14. In this case, the trial court found American States' excuse to be inadequate. At the hearing before the trial court, counsel for American States characterized the reason for default as
a simple mistake by Mr. Anderson. It was a simple mistake by someone in the home office putting the actual served copy of the complaint in the 2004 Clover Hill file, as opposed to putting it in the active J & N file. But that was an honest mistake. ... I think the reasons for the default are simple neglect-negligence, a clerical error in putting the claim-the summons and the complaint in the wrong file, but certainly not a bold face [sic] attempt just to ignore the summons and complaint and ignore the plaintiff's lawsuit on a claim that they had denied.
After arguments from both sides, the following exchange occurred:
THE COURT: All right. Mr. Hill [counsel for American States] what about this? This does sound pretty bad now.
MR. HILL: Well, Your Honor
THE COURT: Well, let me say this: I've set aside default judgments in the past and everything, but why should-this case-this sounds bad.
MR. HILL: Yeah. What happened, Your Honor, again, was: The first copy that Mr. Anderson got was the courtesy copy. He didn't know at that time that they had been officially served with the complaint. When American States was served
THE COURT: Isn't that enough to check further, I mean to go a little bit further? Why aren't you sitting right there with this date checking when the statute runs, checking to see if a lawsuit had been filed or something? I'm just saying that this looks bad. This looks bad. This is one of the worst ones that I've seen.
Shortly thereafter, when discussing Anderson's failure to monitor the status of Rogillio's lawsuit, the trial court stated: "This just doesn't add up. This doesn't add up."
¶ 15. This Court agrees. American States' excuse for defaulting defies logic. Misfiling the summons and complaint does not explain how American States failed to answer it. American States does not claim that it did not receive the complaint, or that it did not recognize or understand the import of a summons and complaint. Based on the evidence in the record and the relevant legal precedent, this Court finds that the first prong of the balancing test weighs in favor of Rogillio.
B. Whether the Defendant Has a Colorable Defense to the Merits of the Claim.
¶ 16. The second prong of the balancing test asks whether the defendant has a colorable defense to the merits of the plaintiff's claim. See, e.g., Pittman, 501 So.2d at 388. With regard to the second prong, this Court has held that "[i]f any one of the three factors in the balancing test outweighs the other in importance, this is the one." Bailey, 543 So.2d at 182; see also Stanford, 822 So.2d at 888 (quoting Allstate Ins. Co. v. Green, 794 So.2d *470 170, 174 (Miss.2001)) (stating that this Court has "encouraged trial courts to vacate a default judgment where `the defendant has shown that he has a meritorious defense'").
¶ 17. American States argues that Rogillio is not covered under the J & N Timber policy. The policy states that six vehicles a 2004 Ford F-150, a 2001 Ford Expedition, a 1998 Ford Ranger, a 2000 Ford pickup, a 2003 Ford Crown Victoria sedan, and a 2003 Lincoln Towncar sedan are covered under it. The policy also includes "Drive Other Car" coverage for certain individuals when they are driving cars other than the six cars specifically listed. The only individuals listed under "Drive Other Car" coverage are William B. Netterville and Vicki Netterville. Rogillio is not listed under the "Drive Other Car" coverage and was not driving any of the vehicles specified in the J & N Timber policy at the time of the accident. Thus, it is arguable that, based on the excerpts of the J & N Timber policy included in the record, American States has a colorable defense to the merits of Rogillio's claim.
¶ 18. However, we note that it is unclear whether American States would prevail on the merits by asserting this defense. The record includes a short and long version of the J & N Timber policy. The short version of the insurance policy, which is what American States provided to Rogillio when he requested a copy of the policy prior to filing his complaint, includes a document with a Safeco Insurance[1] logo at the upper left corner of the page. This document states:
Dear Valued Policyholder,
We appreciate the opportunity to write your commercial auto coverage. Please take a minute to review your policy. Your policy has been issued based on the drivers listing below. In order to insure that your policy is issued with the most current information, please review this list and update as necessary. Include employees who drive their own vehicles on company business or anyone who will drive an insured vehicle. Contact your independent agent to advise of any changes.
The document then includes a list of six drivers, including Ellis Rogillio. American States argues that the attachment of this document was accidental. American States asserted in its motion to set aside the default judgment that "[w]hen printing the policy to provide to Plaintiff and his counsel, in an effort to conserve paper, American States inadvertently attached [the] document." American States did not explain how attaching additional documents to an insurance policy conserves paper. American States contends on appeal that
this document is clearly not part of a policy or policy application, but a separate and subsequent letter written to the named insured, J & N Timber, Inc., simply to confirm those persons who would potentially be using a scheduled insured vehicle so that American States *471 could evaluate and assess its risk and the premium to be charged for insuring that risk.
American States provides an affidavit by a Safeco Insurance underwriter that states that the document listing Rogillio as a driver has nothing to do with the "Drive Other Car" coverage under the J & N Timber policy, and that Rogillio is not insured under the policy. American States claims on appeal that the underwriter's "testimony is undisputed." However, Rogillio certainly disputed this fact in the pleadings and at the hearing and continues to dispute it on appeal. Rogillio maintains that the attachment of the document listing him as a driver creates an ambiguity in the insurance policy, which should be interpreted against the insurer.
¶ 19. The document in question clearly states that "[y]our policy has been issued based on the drivers listing below." In addition, although American States argues that the document was mistakenly attached to the short version of the policy when Rogillio requested a copy of the policy prior to filing suit, Rogillio rightly points out on appeal that the document also appears in the middle of the long version of the insurance policy that is included in the record.
¶ 20. It is well-established that any ambiguity in an insurance policy is interpreted in favor of the insured as the nondrafting party. See, e.g., Crum v. Johnson, 809 So.2d 663, 666 (Miss.2002); J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552 (Miss. 1998). This Court is persuaded by Rogillio's argument regarding the ambiguity in the insurance policy and finds that the strength of American States' defense is questionable. Nevertheless, we are of the opinion that American States' defense does present a colorable defense to the merits of the Rogillio's claim for the purposes of the balancing test. Therefore, the second prong of the balancing test weighs in favor of American States.
C. The Nature and Extent of Prejudice Which May Be Suffered by the Plaintiff if the Default Judgment is Set Aside
¶ 21. The third prong of the balancing test concerns the prejudice, if any, suffered by the plaintiff if the default judgment is set aside. American States argues that Rogillio will suffer no prejudice if the default judgment is set aside because there are no witnesses whose memory will have suffered from the default and the resultant passage of time. American States further asserts that having to prove a claim against a defendant "is not what is meant by cognizable prejudice under this prong of the balancing test." Bailey, 543 So.2d at 183.
¶ 22. Rogillio argues that he will suffer prejudice if the default judgment is set aside because such a decision will trigger the continuation of his litigation against Bi-County, which ended as a result of the default judgment against American States. Although Rogillio initially sued Farm Bureau, American States, and Bi-County, Farm Bureau was removed from the lawsuit, and Rogillio's claim against Bi-County was rendered moot after the default judgment was entered and upheld by the trial court. Therefore, Bi-County was released from the lawsuit. If the default judgment is set aside, Rogillio will have to continue its litigation against Bi-County in addition to proving its claims against American States. The fact that Rogillio will be forced to pursue litigation against Bi-County is a burden separate and distinct from the burden of proving the liability of American States, which this Court would not consider "cognizable prejudice" under the third prong. Bailey, 543 *472 So.2d at 183. Therefore, this Court finds that Rogillio will suffer prejudice if the default judgment is set aside.
¶ 23. Furthermore, as Rogillio argues, he will suffer prejudice because of the ongoing financial and emotional distress related to his severe injuries. This Court has found that the fact that "the injured plaintiff is without a resolution to her claim for that period of time [i.e., the period of delay caused by the defendant's default]" constitutes prejudice. Pittman, 501 So.2d at 388; see also Stanford, 822 So.2d at 890 (finding that plaintiffs had suffered substantial prejudice in part from the financial and emotional distress they suffered). Rogillio filed his lawsuit against American States in March 2007. He perfected service upon American States' designated agent and proceeded with the litigation as he should have. Because of American States' carelessness and lack of diligence in defending the lawsuit, Rogillio properly obtained a default judgment more than four months after service of the complaint. American States filed a motion to set aside the default judgment more than one month after the default judgment had been entered three weeks after it discovered that a default judgment had been entered against it and more than two weeks after it filed an answer and affirmative defenses. The trial court denied American States' motion approximately nine months after that. As this Court held in H & W Transfer & Cartage Service, Inc., the plaintiff "may have been subject to prejudice from the granting of the motion in the sense that she would have been put to trial some months following the date when she would have originally been able to obtain a trial setting had [the defendant] responded promptly." H & W Transfer & Cartage Serv., Inc., 511 So.2d at 899. This Court finds that setting aside the default judgment would certainly have caused prejudice to Rogillio.
¶ 24. Thus, two of the three prongs weigh in favor of Rogillio and against setting aside the default judgment. We find, therefore, that the trial court did not abuse its discretion in denying the motion to set aside the default judgment. Although the second prong weighs in favor of American States, this Court has previously affirmed the trial court's denial of a motion to set aside default judgment where the second prong weighed in favor of the defaulting party. See, e.g., Pittman, 501 So.2d at 388-89; Stanford, 822 So.2d at 889-91. Additionally, we note that, while American States is now foreclosed from presenting any defenses as to liability, it will nevertheless be given an opportunity to contest the amount of unliquidated damages and raise any and all defenses it may have as to the damages claimed by the plaintiff. The trial court entered a partial default judgment as to liability. See Pointer, 509 So.2d at 873-74; Capital One Servs., Inc. v. Rawls, 904 So.2d 1010, 1018 (Miss.2004). In entering the partial default judgment, the trial court expressly provided that "the defendant is entitled to a full defense on the issue of damages, including a jury trial. It is therefore ordered that this cause shall proceed on the issue of damages only, in all respects." Furthermore, as this Court stated in Pittman,
[i]t may be that people will miss fewer trains if they know the engineer will leave without them rather than delay even a few seconds. Although we are not about to inaugurate a policy of entering irrevocable defaults where no answer has been filed by the thirty-first day, we are equally resolved that people know that the duty to answer must be taken seriously. At some point the train must leave.
Pittman, 501 So.2d at 388-89.
¶ 25. American States argues in its rebuttal brief that the trial court abused its *473 discretion by failing to consider the three-prong test. American States cites State Highway Commission v. Hyman, 592 So.2d 952, 956 (Miss.1991), McCain v. Dauzat, 791 So.2d 839, 843 (Miss.2001), Clark v. City of Pascagoula, 507 So.2d 70, 77 (Miss.1987), and Bryant, Inc. v. Walters, 493 So.2d 933, 937 n. 3 (Miss.1986) in support of its argument. These cases are either distinguishable from the facts of this case or fail to support American States' argument. In citing Hyman, American States merely directs this Court to the application of the three-prong test in a case in which this Court ruled that the default judgment should have been set aside. Hyman, 592 So.2d at 956. American States does not explain how the facts in Hyman are at all analogous to the facts of this case. In Dauzat, this Court remanded the case so that the trial court could consider the three prongs of the balancing test. Dauzat, 791 So.2d at 843. However, in Dauzat, "the trial judge became perturbed with McCain and prematurely ended the hearing on the motion [to set aside the default judgment]." Id. This Court found that there was "strong evidence" that the trial court did not weigh the three factors. Id. In this case, it is clear that the trial court heard arguments from both sides regarding the application of the three-prong test during the hearing on September 4, 2007. The hearing was not prematurely ended, and the trial court took the matter under consideration for a significant period of time before entering an order denying the motion to set aside the default judgment. Although the trial court did not discuss the three-prong test in its order, there is no indication that the trial court failed to consider it in reaching its decision. In Clark, this Court affirmed the order of the trial court, which "made no specific findings ... but merely set aside the default judgments." Clark, 507 So.2d at 77. American States does not explain how Clark supports its argument that the trial court abused its discretion by failing to consider the three-prong test. Lastly, American States also does not explain how footnote three[2] from Bryant, Inc. supports its argument. Therefore, we find that American States' argument that the trial court abused its discretion and failed to consider the three-prong test is without merit.
Mississippi Rule of Civil Procedure 60(b)
¶ 26. We note that the result reached by applying the three-prong test in this case is consistent with Mississippi precedent regarding Mississippi Rule of Civil Procedure 60(b). Although the motion to set aside default judgment did not specify the subsection of Rule 60(b) under which the motion was being made, on appeal, American States argues that the default judgment should have been set aside for either accident or mistake under Rule *474 60(b)(2) or for any other reason justifying relief under Rule 60(b)(6).
¶ 27. This Court has stated that
As a general rule, the "extraordinary relief" provided for by Rule 60(b), will be granted "only upon an adequate showing of exceptional circumstances," and gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief.
Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988) (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)). This Court has also stated that "we are obliged to ask why the mistake or inadvertence was not avoided." Bolles, 535 So.2d at 58. Furthermore, a party "must make some showing that he was justified in failing to avoid mistake or inadvertance [sic]; gross negligence, ignorance of the rules, or ignorance of the law is not enough." Stringfellow, 451 So.2d at 221 (citations omitted); see also Bolles, 535 So.2d at 59 (citing Stringfellow, 451 So.2d at 221) ("Ignorance, incompetence, or carelessness will not suffice."). In H & W Transfer & Cartage Service, Inc., this Court stated that "[a]ssuming arguendo that the reason H & W did not answer timely was an accident or mistake within Rule 60(b)(2), we consider the first factor, the validity or cause for H & W's failure to answer." H & W Transfer & Cartage Serv., Inc., 511 So.2d at 899. The Court then applied the analysis under the first prong of the balancing test and concluded that H & W had not provided a valid reason for its failure to answer. Id.
¶ 28. American States has not made a showing that it was justified in failing to avoid the mistake or inadvertence that led it to default. American States does not provide any explanation for its failure to make the simple determination of whether or not it had been served. American States repeatedly claims that its default resulted from a "simple mistake" or an "inadvertent clerical error." This excuse is insufficient to explain the carelessness and lack of diligence that caused it to default. American States waited for four months to file an answer and more than four-and-a-half months to file a motion to set aside. It appears that American States may never have filed an answer or motion had it not been informed of the default judgment by counsel for Farm Bureau.
¶ 29. As for Rule 60(b)(6), this Court has held that relief under that subsection "is reserved for exceptional and compelling circumstances. It must be based on some other reason than the first five clauses, and it must be some ground which will justify relief from the final judgment." Bryant, Inc. v. Walters, 493 So.2d 933, 939 (Miss.1986). "Rule 60(b)(6) in the Mississippi Rules of Civil Procedure calls for an exceptional or compelling reason to set aside a default judgment in the absence of the other enumerated reasons." Stanford, 822 So.2d at 891. As in Stanford, this Court finds that American States has not demonstrated an exceptional or compelling reason to set aside the default judgment entered against it.
II. Whether the Default Judgment is Void for Failure to Comply with Mississippi Rule of Civil Procedure 55(b).
¶ 30. American States argues in the alternative that the default judgment is void because Rogillio did not provide three days' notice to American States when it filed its motion for default judgment. Rogillio maintains that three days' notice was not required because American States never made an appearance in the action. Mississippi Rule of Civil Procedure 55(b) provides, in relevant part:
*475 In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application.
Miss. R. Civ. P. 55(b). Based on the plain language of Rule 55(b), we must determine whether or not American States made an appearance in this action. This Court has held that "[t]raditionally, for an action to constitute an appearance, one had to file documents in or actually physically appear before a court." Holmes v. Holmes, 628 So.2d 1361, 1363 (Miss.1993) (citations omitted). However, "those requirements have been relaxed considerably for Rule 55 purposes." Holmes, 628 So.2d at 1363 (citations omitted). "Once a party has made an indicia of defense or denial of the allegations of the complaint such party is entitled to at least three days['] written notice of the application for default judgment." Wheat v. Eakin, 491 So.2d 523, 525 (Miss. 1986). This Court has noted that "informal contacts between parties may constitute an appearance." Holmes, 628 So.2d at 1364 (citing various cases in which written documents that were exchanged between parties or filed with the court, or conversations initiated by defendants' counsel, indicated an intent to defend the action and thus constituted an appearance).
¶ 31. This Court has decided several cases that are helpful in determining what constitutes an appearance for purposes of Rule 55(b). In Wheat v. Eakin, this Court found that the pro se defendant's answer entitled him to at least three days' written notice of the plaintiff's application for default judgment. Wheat, 491 So.2d at 526. This Court found that "[w]hile the form and language of the appellant's response are less than desirable and more frank than customary, the appellant did state in short and plain terms his general denial of appellees' claims." Id. at 525. Therefore, this Court found that the defendant had appeared through his answer and that the plaintiff's failure to provide notice pursuant to Rule 55(b) justified reversal of the default judgment. Id. at 524-26.
¶ 32. In Chassaniol v. Bank of Kilmichael, the defendant filed an answer to the complaint, but failed to file a timely answer to the amended complaint. Chassaniol v. Bank of Kilmichael, 626 So.2d 127, 129-30 (Miss.1993). The plaintiff sought a default judgment without providing notice to the defendant. Id. at 130. The trial court entered a default judgment, and this Court found that the trial court erred by refusing to set aside the default judgment because the defendant had appeared and the plaintiff failed to provide notice pursuant to Rule 55(b). Id. at 130, 132. This Court found that
[b]oth the court and opposing counsel were on notice by virtue of the documents in the court file that Chassaniol was contesting every element of the Bank's case ... Chassaniol filed an answer to the original complaint, filed an objection to the amended complaint, filed a motion to set aside the entry of default, pursued the case in federal court, and filed an answer to the amended complaint while in federal court.
Id. at 131-32.
¶ 33. In Holmes, this Court found that the defendant had made an appearance in the action because of the letters exchanged between counsel for the parties demonstrating that the defendant intended to defend the action. Holmes, 628 So.2d at 1364. Accordingly, this Court reversed the trial court's order denying the defendant's *476 motion to set aside the judgment of divorce because the defendant had appeared through her lawyer's correspondence with opposing counsel and the plaintiff failed to provide notice pursuant to Rule 55(b). Holmes, 628 So.2d at 1362, 1365.
¶ 34. In King v. Sigrest, the defendant failed to file a timely answer and the plaintiff subsequently obtained an entry of default. King v. Sigrest, 641 So.2d 1158, 1160 (Miss.1994). However, after the entry of default, the defendant served the plaintiff with a motion to set aside default, although the defendant failed to file this motion with the court. Id. The plaintiff then obtained a default judgment without providing notice to the defendant. Id. at 1160. This Court held that the trial court erred in denying the defendant's motion to vacate the default judgment because the defendant had appeared in the action by serving the plaintiff with her motion to set aside default and the plaintiff failed to provide notice pursuant to Rule 55(b). Id. at 1162.
¶ 35. Returning to the present case, American States claims that "[i]t is undisputed that during that conversation [between Anderson and Rogillio's counsel on March 15, 2007], Anderson clearly advised Rogillio's attorney that after Rogillio had served American States, American States would enter an appearance, defend this matter, and contest coverage." However, the contents of the discussion between Anderson and Rogillio's counsel on March 15, 2007 are disputed. Rogillio concedes that his counsel spoke with Anderson on March 15, 2007, but maintains that his counsel advised Anderson that the complaint had been filed and that Anderson "advised that he had received a filed copy of the Complaint and knew of the lawsuit." Rogillio does not concede that Anderson "clearly advised Rogillio's attorney that after Rogillio had served American States, American States would enter an appearance, defend this matter, and contest coverage."
¶ 36. Based on this Court's prior caselaw, we find that American States did not enter an appearance in the action when its claims specialist spoke over the telephone with Rogillio's attorney. Although an appearance need not be a formal entry of appearance or a physical presence in court, in the illustrative cases summarized above, the defendants either 1) served or sent a document to the plaintiff indicating in writing the defendant's intent to defend, 2) filed a document with the court indicating in writing the defendant's intent to defend, or 3) had counsel communicate to opposing counsel the defendant's intent to defend. Here, there is no evidence of American States informing Rogillio or the court in writing or through counsel of its intent to defend the suit. Although it argues that its claims specialist, Anderson, advised Rogillio of its intent to defend on March 15, 2007, there is no written or audio record of this phone conversation and there is no follow up confirmation letter to indicate what transpired during that conversation. American States has not shown that it made an appearance in this action such that Rogillio was required to provide at least three days' notice to American States of its application for default judgment. Accordingly, this Court concludes that the default judgment is not void for failure to comply with Rule 55(b).
CONCLUSION
¶ 37. This Court finds that the trial court properly denied the motion to set aside the default judgment. Therefore, the trial court's order denying the motion to set aside default judgment is affirmed, and this case is remanded for further proceedings on the issue of damages.
*477 ¶ 38. AFFIRMED AND REMANDED.
WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, J., CONCURS IN PART AND RESULT. KITCHENS, J., NOT PARTICIPATING.
NOTES
[1] The relationship between American States and Safeco Insurance is not clear from the record. The first page of the J & N Timber policy has a Safeco Insurance logo at the upper left corner of the page and states "American States Insurance Company" at the top of the page. The "Drive Other Car" coverage documents also have Safeco Insurance logos at the upper left corners. American States cites an affidavit in the record from a Safeco Insurance Company underwriter in order to explain the J & N Timber policy papers. However, American States does not clarify its relationship to Safeco Insurance. Although the exact relationship between the two corporate entities is unclear, American States does not argue that the J & N Timber policy was issued by an insurance company other than itself.
[2] Footnote three states:
The circuit judge could also, under his discretionary power, have set the judgment aside on this particular ground under the facts of this case. Three days after due date of the answer the plaintiff moved for and secured a default, and on the fourth day got a judgment. The case could not be tried until the August term of court. Motion to vacate the judgment was filed the first day of the term.
Indeed, upon a showing by the defendant that he has a meritorious defense, we would encourage trial judges to set aside default judgments in a case where, as here, no prejudice would result to the plaintiff. The importance of litigants having a trial on the merits should always be a serious consideration by a trial judge in such matters. We are unable to say, however, that the circuit judge abused his discretion in refusing to set aside the judgment in this case on the particular ground of "accident or mistake."
Bryant, Inc., 493 So.2d at 937 n. 3 (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568292/ | 300 S.W.2d 773 (1957)
NORVELL-WILDER SUPPLY COMPANY, Appellant,
v.
Jack RICHARDSON, d/b/a Richardson Drilling Company, Appellee.
No. 5207.
Court of Civil Appeals of Texas, El Paso.
March 13, 1957.
Rehearing Denied March 13, 1957.
*774 George W. Svanas, Stowe & Harmon, Odessa, for appellant.
John R. Lee, Kermit, Robert Ziesenheim, Monahans, Warren Burnett, Odessa, for appellee.
HAMILTON, Chief Justice.
We overrule appellee's motions for rehearing. In said motions certain inaccuracies in our original opinion were called to our attention. We withdraw our original opinion and substitute the following as our opinion, wherein the inaccuracies are corrected, but without changing the effect of our holding.
This was a suit by Norvell-Wilder Supply Company, plaintiff in the court below and appellant herein, against Jack Richardson, doing business as Richardson Drilling Company, defendant in the court below and appellee herein, upon a sworn account for the balance due on oilfield material and equipment furnished to Richardson Drilling Company, in the amount of $17,917.65.
Appellee contested an item of 104 joints of second-hand drill pipe, in the total price of $10,445.33, on the ground of breach of warranty, and an item of rental on a mud pump in the amount of $7,440, claiming that the contract of rental was for $30 for each day that appellee used the pump, rather than for the days that appellee had the pump in his possession.
In answer to special issues, the jury found that the salesman of appellant had guaranteed the performance of the drill pipe for a period of ninety days, and that said salesman had apparent authority to make such guarantee. Also, the jury found that the rental contract for the pump was for the days the pump was in actual use by appellee, and not for the number of days he had the pump in his possession. Upon these findings, the court rendered judgment that appellant, Norvell-Wilder Supply Company, recover of appellee the sum of $332.32, thereby denying recovery of $10,445.33, the price of the pipe, and denied recovery for 238 days rental of the pump by appellant; from which judgment the Norvell-Wilder Supply Company appealed.
The record reflects that the appellant, Norvell-Wilder Supply Company, was engaged in the general oil-field supply business. It did not manufacture any products; it did not guarantee any second-hand products it sold; and did not authorize any of its salesmen to do so. On new goods sold by appellant, it made no guarantee, but passed on whatever guarantee the manufacturer of the product made. The appellee, Jack Richardson, was an experienced oil-field drilling contractor, operating six drilling rigs. Joe Bailey Smith was a salesman for Norvell-Wilder Supply Company, and had been calling on the Richardson Drilling Company rigs for about thirty days when, in August of 1953, he, the salesman for Norvell-Wilder, sold to Richardson *775 104 joints of used 4½ inch drill pipe at $3.20 per foot, totaling $10.445.33. Appellee Richardson introduced evidence to the effect that the salesman, Joe Bailey Smith, guaranteed and warranted the pipe for performance for ninety days, which was denied by the salesman. The record reflects that Richardson had inspected the pipe, along with an experienced pipe and supply man of his choosing, before he bought the pipe. Richardson used the drill pipe in at least three wells before he quit using it because, as he stated, he was having too many "fishing" jobs with it.
The facts in regard to the rental of the mud pump are disputed. Appellant showed by evidence that the rental contract was $30 for each day the appellee had the pump in his possession. Appellee testified he was to pay $30 for each day he had the pump in use, which was only ten days.
It appears that the appellee relies upon the breach of express warranty given by appellant's salesman to defeat the appellant's claim for the payment of $10,445.33 for the second-hand drill pipe and, in the alternative, upon an implied warranty that the drill pipe was suitable for the purpose for which it was intended. It being undisputed that the salesman of appellant was not authorized to guarantee or warrant the second-hand drill pipe, appellee sought to show that said salesman had apparent authority to make the guarantee. In addition to other points, appellant makes the points of no evidence, and insufficient evidence, to support the finding of the jury on the issue of apparent authority of the salesman to guarantee the pipe.
We agree with the appellant that there was no evidence of probative force upon which the jury could base its finding that the salesman, Joe Bailey Smith, had apparent authority to guarantee the pipe, as the jury found he did do. It appears that the doctrine of "apparent authority" is based upon estoppel, as applied to the law of agency. In order to prove that an agent has apparent authority, it must be shown that the agent's principal by his words or conduct, has either willfully or negligently caused another to believe that the agent has certain authority which he does not actually have, and that he was induced to act upon that belief, so as to alter his own previous position:
2 Tex.Jur., 424 and 425.
In this case, the appellee failed to either allege or prove any act, word or conduct on the part of appellant that could cause the appellee to believe that Norvell-Wilder had given its agent authority to guarantee the second-hand drill pipe. The only conduct that appellee contends is such that it would cause appellee to believe that the salesman has such authority, are previous sales of new supplies, about which no question of guarantee was raised, and subsequent acts as follows: Rental of slush pump by appellant's salesman, Smith; acceptance of payment of promissory note; delivery of original chattel mortgage back to appellee with notation signed by salesman Smith that it had been paid in full. These last acts all happened months after the sale of the second-hand drill pipe and could, under no circumstances, be the basis of estoppel. The previous sale of new supplies, in the ordinary course of the salesman's employment, certainly is no evidence of apparent authority to guarantee second-hand drill pipe. The fact is that, in Jack Richardson's testimony, he did not claim that he was misled by any act or conduct of the appellant. He stated that he did not know whether Joe Bailey Smith had the authority to guarantee the secondhand pipe or nothe just assumed he had the authority to guarantee the pipe, since he had authority to sell it.
Appellee cannot rely on implied warranty, because the general rule in Texas is that there is no implied warranty of the quality of goods bought with the knowledge on the part of the buyer that they are second-hand, or used:
*776 American Soda Fountain Co. v. Palace Drug Store, Tex.Civ.App., 245 S.W. 1032.
It has been held, in the case of Joy v. National Exchange Bank of Dallas, 32 Tex. Civ.App. 398, 74 S.W. 325, that one who buys second-hand machinery, from a person other than the manufacturer, may not complain of latent defects in the absence of pleading and proof of fraud. In this case there was no pleading and proof of fraud. Another reason why implied warranty will not apply in this case is that appellee inspected the pipe and had his own experienced pipe and supply man advise with him about the purchase of the pipe:
37 Tex.Jur., ¶ 121, pp. 281-283.
We think there is no merit in appellant's points, 1, 2, and 3, which object to the submission of the special issues on the question as to whether the appellee was to pay for each day he had the slush pump in operation, as against appelant's contention that he was to pay for each day that he had the pump in his possession. There was sufficient evidence submitted by appellee that the agreement between appellee and appellant was that the charge for the pump was to be for the days that appellee used the pump, and the trial court was correct in denying recovery of $7,140 of the claimed rental for the pump.
We therefore affirm the trial court's judgment in the amount of $332.32, and reverse that part of the trial court's judgment denying to appellant recovery of the sum of $10,445.33 for the drill pipe, and here render judgment in the additional sum of $10,445.33 for the appellant, making a total of $10,777.65. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568297/ | 139 F.2d 855 (1943)
WESTERN CARTRIDGE CO.
v.
NATIONAL LABOR RELATIONS BOARD.
No. 8324.
Circuit Court of Appeals, Seventh Circuit.
December 16, 1943.
Rehearing Denied January 27, 1944.
*856 Henry Davis and R. H. McRoberts, both of St. Louis, Mo., for petitioner.
Robert B. Watts and Ernest A. Gross, N.L.R.B., both of Washington, D. C., and Lester Asher, N.L.R.B., of Chicago, Ill., for respondent.
Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.
MINTON, Circuit Judge.
On March 24, 1943, the National Labor Relations Board in a case brought before it by Local 12418, District 50, of the United Mine Workers of America, hereinafter called the Union, found the Western Cartridge Company, hereinafter called the Company, guilty of unfair labor practices in violation of Sections 8(1) and 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1), (3), hereinafter called the Act. The Board entered the usual order. The Company seeks to review this order, and the Board has applied for its enforcement. The sole question before us is whether or not there is substantial evidence to support the Board's findings.
We consider first the Board's finding that the Company violated Section 8(1) of the Act. Various labor organizations had in the past attempted to organize the Company's employees. The Congress of Industrial Organizations began such a campaign in 1937, and the American Federation of Labor in 1940. Late in 1941 and early in 1942, the Union, which was then affiliated with the CIO, started to organize the Company's employees. When the employees appeared in the plant wearing their union buttons, they were ridiculed and chided by their foremen for doing so. Walter Crawford, the foreman of the Cupping Department, where the employees herein concerned worked, on several occasions made derogatory and ridiculing remarks to the men about wearing their union buttons. To employee Page, Crawford said, "Page, as long as you have been here, I would not have thought you would have joined the Union."
Page replied, "Well, I thought maybe I would better myself."
Crawford responded, "If the Company would lay you off, you would raise hell."
Page replied, "If they did lay me off for joining the Union, yes."
Crawford said, "They can do it."
Page replied, "No, they can't."
To which Crawford responded, "You will see."
Another employee testified that when he entered the plant wearing his union button, Foreman Crawford grabbed hold of it and said, "What are you doing with this button on?" and "What are you getting for wearing it?" to which the employee responded that, "Well, if you want it I will give it to you," and started to do so. The foreman and his assistant withdrew laughing. The employee testified he thought they were trying to make a fool of him at the time.
Later Foreman Crawford in a conversation with employee Bailey referred to the activities of Herron and Seeger, who were leaders among the Union men. Crawford remarked in substance that Herron and Seeger were causing the trouble in there and that after the war the Company would remember who had been the strong men for the Union.
These incidents standing alone may be considered weak support for a finding of violation of Section 8(1) of the Act. However, the Company has a long, consistent record of persistent opposition to the organization of its employees. This Court quite recently sustained and enforced an order of the National Labor Relations Board in which it found the Company guilty of several unfair labor practices. National Labor Relations Board v. Western Cartridge Co., 7 Cir., 134 F.2d 240. In view of the Company's known hostility to the organization of its employees and its established record of unfair *857 labor practices, we think that the conduct of the foreman, Crawford, in this instance was quite persuasive evidence that the Company's attitude toward the organization of its employees had not changed. Under all of the circumstances of this case, we think that there was substantial evidence to support the Board's finding that the Company had violated Section 8(1) of the Act.
As to the violation of Section 8(3): The employees on the day shift in the Cupping Department of the Company's plant, not as members of the Union or under any claim of bargaining rights, had been negotiating with the Company about certain grievances as to working conditions and an increase of wages. They concluded that the Company was engaging in dilatory tactics and determined to cease work unless the Company set a definite time for a meeting at which these grievances might be taken up. The Company did not comply with this request, and the day shift quit work the afternoon of July 3, 1942. Shortly thereafter, the Company's officers and armed guards met with the employees of the day shift who had ceased work and were still about the plant. The Company superintendent told the employees that they could go back to work if they wished. None offered to return. One of the employees spoke up and stated that the employees were willing to go back to work at once if the Company would give them a definite date for hearing their grievances. To this, the superintendent responded that the request would not be considered until the men went back to work and asked them if they desired to return to work. When none responded, the superintendent ordered that they be given suspension slips. This was done. These slips notified the employees to appear before the Discipline Board on Monday, July 6, at nine a. m. After the men had received these notices, their indentification badges were taken from them, and they were escorted from the plant by the armed guard.
When the second shift came to work and discovered what had happened, they also refused to go to work unless the Company would set a definite date for the hearing of the employees' grievances and would give the first shift employees their hearing before the Discipline Board the next day, which was Saturday, instead of waiting until Monday. These demands the Company superintendent rejected and sent word to the second shift employees to report for work immediately. The employees, including some of those of the third shift who had arrived at the plant, did not heed the warning at that time. Later that same day, one of the employees told the Company superintendent that the men had determined not to report to work until the dispute had been settled. Whereupon the superintendent declared that the employees had gone on strike and their action warranted removal of their names from the payroll. He instructed the employee to notify his fellow employees that anyone on the second and third shifts who did not report for work that day would be suspended and would not be allowed to return to work until he had received the permission of the Discipline Board. Some of the men returned to work, but most of the employees of the second and third shifts decided not to report for work until the controversy had been settled. On July 4, notices were prepared suspending the employees of the second and third shifts who had not reported for work the day before, and the charge assigned therefor was failure to appear for work without reason. The suspended employees were also directed to appear before the Discipline Board Monday, July 6, at ten a.m.
On July 6, the employees appeared at the Company's gates and requested that all of the employees of all shifts be permitted to appear before the Discipline Board at the same time. This the Company refused. Thereupon, the employees left the plant. On July 7, the Discipline Board of the Company discharged the eighteen men of the first shift who had gone on strike, and the vacancies resulting from their discharge were permanently filled by new employees between July 8 and July 15. The Discipline Board, however, accorded different treatment to the other shifts, keeping their jobs open for them until they were willing to return.
On July 8, employee Seeger, as representative of his fellow striking employees, reported to the Personnel Director of the Company, and on behalf of himself and his fellow employees advised the Personnel Director that they would like to return to work. Their offer was rejected. Seeger was informed that the employees of the first shift were discharged and that the men on the other shifts would be put back to work whenever they were willing to accept reinstatement through the Discipline *858 Board. This information Seeger conveyed to the striking employees. From time to time thereafter, shifts other than the first shift reported to work and, following their appearance before the Discipline Board, were reinstated. None of the employees of the first shift was reemployed.
Thus it will be seen that out of a labor dispute grew an economic strike. The strike was not caused by any unfair labor practice of the Company. Since the strike grew out of a labor dispute, the employees maintained their status as employees of the Company. 29 U.S.C.A. § 152(3); National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344, 347, 58 S. Ct. 904, 82 L. Ed. 1381; Wilson & Co. v. National Labor Relations Board, 7 Cir., 124 F.2d 845, 847, 848; Firth Carpet Co. v. National Labor Relations Board, 2 Cir., 129 F.2d 633, 635, 636. Without violating Sec. 8(3) of the Act, the Company had a right to discharge these employees or to refuse to take them back into its employ, as long as it did not discriminate against them in such a manner as to encourage or discourage membership in any labor organization. Failure to reemploy striking employees because they engaged in a strike may be an interference with their right to engage in "concerted activities" as provided in Section 7 of the Act and would therefore constitute an unfair labor practice under Section 8(1) of the Act. Does such a violation of Section 8(1) in and of itself warrant a finding of a violation of Section 8(3)? We think not. Employees may under Section 7 of the Act "have the right * * * to engage in concerted activities" irrespective of any labor organization, and interference with such "concerted activities" would be an unfair labor practice within the meaning of Section 8(1) of the Act. It does not follow that a finding of interference with "concerted activities" or discrimination because of "concerted activities" is a violation of Section 8(3) of the Act. Under this Section of the Act to constitute the unfair labor practice of discrimination, the discrimination in regard to hire and tenure must have the purpose "to encourage or discourage membership in any labor organization."
The Board has found discrimination because of concerted activities. We think there is evidence to support such findings. We must go one step further. Was that discrimination to encourage or discourage membership in any labor organization? Neither the Board nor the Trial Examiner set forth any facts to support their finding that the discriminatory conduct of the Company toward the hire and tenure of the day shift, the employees named in Schedule A, was for the purpose of encouraging or discouraging membership in any labor organization. That such conduct in some cases might be for that purpose cannot be doubted. That it was done in the case at bar for that purpose has not been shown by any evidence. The Board points out the discriminatory conduct of the Company in these words: "By thus `discharging' and subsequently replacing the day-shift employees alone because of their part in a lawful strike and because the respondent regarded their participation in the strike as more heinous than that of other strikers, the respondent engaged in discrimination as between the day-shift strikers and the other strikers." The Board then makes a recital that cannot be disputed that "Such discrimination because of union activities constitutes a violation of Section 8(3) of the Act." Without bothering to point out any evidence to support a finding that such discrimination was for the purpose of encouraging or discouraging membership in any labor organization, the Board finds such discrimination "thereby discouraged membership in the Union, etc."
We are unable to find in the record any substantial evidence to support a finding that the Company's acts toward its striking employees in the matter of their hire and tenure were taken to discourage membership in a labor organization. It must be remembered that the Company was engaged in the manufacture of munitions of war during a war, and the employees through their leaders had pledged themselves not to strike. In violation of that solemn pledge they struck, instead of resorting to the ample machinery set up by the Government to settle labor disputes. Maybe the employees in peace time would have been justified in striking, but were they justified in doing so in war time, in violation of their pledge not to do so? Furthermore, the striking employees were not acting as members of the Union. They expressly disclaimed any such action. The strike was not authorized or approved by *859 the Union and was not used to further any purpose of the Union. It was a "wildcat" strike. The employees were acting as individuals, disclaiming any standing as members of any labor organization. No organizational work of the Union was going on at the time in the Cupping Department. The workmen therein were almost all members of the Union. The employees were acting outside the Union. The strike was a thing apart from any labor organization.
We recognize the exclusive right of the Board to draw inferences but there must be some evidence from which the inference can be drawn. We do not think the evidence supports an inference that the Company's conduct toward the striking employees on a "wildcat" strike was for the purpose of discouraging membership in a labor organization, especially since the day shift, which was found to have been discriminated against, belonged to the same Union as the other shifts, which were not discriminated against. If the Company was discriminating against its employees because of Union activities, why was the discrimination limited to one shift? The other shifts struck, too; but they were not discriminated against.
The Board also found that one Goessman was discharged and refused employment discriminatorily "thereby discouraging membership in the Union as well as in labor organizations generally." Goessman was a janitor in the Brass Specialty Department, a separate department from the Cupping Department. When the strike in the Cupping Department occurred on July 3, the Company, in order to man the machines vacated by the strikers, called upon the employees of the Brass Specialty Department to take over the machines. About 3:40 in the afternoon of that day, Goessman was summoned to the Company offices and charged by its officials with attempting to persuade his fellow employees in the Brass Department to refuse the Company's request that they man the machines in the Cupping Department which had been left idle by the strike. Goessman denied the charge. No one confronted him to take issue with his denial. The Company suspended him and sent him no further word.
The Trial Examiner found and the Board adopted his finding as follows: "There is no evidence that Goessman actually engaged in such conduct. Hence, it appears that he was discharged because the respondent believed he had engaged in this conduct. In view of the total lack of evidence to support the respondent's defense, the undersigned finds that the respondent in suspending Goessman and thereafter discharging him did so because of its belief in his alleged assistance to the strikers in the cupping department."
This finding shows only that the Company discharged Goessman for a reason that did not exist in fact. Does it therefore follow as a reasonable inference that Goessman was discharged in order to discourage his membership in a labor organization? Goessman was not even shown to have been a Union man. According to his testimony, he did not know the employees in the Cupping Department were going to strike. It was not a strike called or sponsored by the Union. No organizational effort was being supported by the strike. There is no evidence of any Union activity or organizational effort of any kind that was in any way related to the discharge of Goessman. If there had been some Union activity in which Goessman was or might be interested, to which his arbitrary discharge could have been related, there might have been some basis for the Board's inference that his discharge was to discourage membership in the Union as well as in labor organizations generally. Inconsiderate discharge standing alone will not support an inference that the discharge was for the purpose of discouraging membership in a labor organization. We think there is not substantial evidence to support the Board's finding as to Goessman.
One McDonald also was found to have been discharged discriminatorily and for the purpose of discouraging membership in a labor organization. The strike in the Cupping Department began July 3 by the stoppage of work on the part of the day shift. McDonald was a member of the day shift, but he was not working when the strike started because his wife was sick. About July 8 or 9, he called his foreman at the Company plant. We set forth McDonald's own testimony:
"Well, I told him I was not working the day that they had the trouble there and wanted to know if I still had a job there, and he said yes for me to come to work. I told him I heard there was trouble and *860 I don't feel like coming to work until it is settled. He said there was no trouble now. They had a little dispute but it is all settled and for me to come in to work. I told him, would I have to go to the Discipline Board?
"Q. Did you ask him if you had to go through the Discipline Board? A. He said yes. I asked who was on it and he said himself and a couple of other men would be there. I told him I would see him later then.
"Q. And have you ever reported to the Discipline Board? A. No sir.
"Q. Do you want your job back? A. Yes, I would like to have it back in a way if they want to do right by us. Otherwise I would not care to go back."
McDonald testified on cross-examination that on July 6 he went down to the plant, found the boys on strike, and decided to stay away, and that he had never been back to the plant since.
McDonald was not discharged. He quit. After he had quit, he never went back or sought to be returned to his old job. He not only quit, but he made it final by his own voluntary act. How can it be contended that McDonald was even discharged, let alone discriminatorily? There is not a scintilla of evidence to support the Board's finding as to McDonald.
The Board's order will be enforced as to the violation of Section 8(1) of the Act and refused as to the alleged violation of Section 8(3) of the Act. An order will be prepared accordingly.
On Petition for Rehearing.
The Board argues in its petition for rehearing that we have in effect held that the day shift, which acted in concert to strike and with whom the other strikers cooperated, was not a labor organization within the meaning of the Act. We held no such thing. The Board had found "that the respondent, by its course of conduct on and after July 3, 1942, as set forth above and in the Intermediate Report, discriminated in regard to the hire and tenure of employment of all its striking employees, and thereby discouraged membership in the Union * * *." As a conclusion of law based upon this finding, the Board held: "By discriminating in regard to the hire and tenure of employment of * * * its striking employees and thereby discouraging membership in Local No. 12418, District 50, United Mine Workers of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(3) of the Act." The "Union" referred to in the findings was the C. I. O.
The Board had found and held that the discrimination discouraged membership in the Union. We simply held that there was no substantial evidence to support a finding that such discrimination thereby discouraged membership in the Union, that is, the C. I. O. All of the evidence was to the effect that the Union had no connection with the activities of the strikers. The discrimination found by the Board was not discrimination to discourage membership in such "labor organization" as the day shift and its cooperating fellow workers represented, but such discrimination as "discouraged membership in the Union." We held only that the discrimination as practiced by the respondent was not shown by substantial evidence to have been for the purpose of discouraging membership in the Union. If it was done to discourage membership in the loose organization that represented the striking employees, there was no finding of the Board to that effect. We must take the findings of the Board as made and not as they might have been made.
It is next urged that we erred in holding that the striking employees were not acting as members of the Union. This was not a case where union men conceal their union affiliation in order that their employer may not be influenced thereby. This was a case where the workers were known to be Union members, but were not acting as members of the Union; and the Union had nothing to do with the strike. This was a "wildcat" strike in a war industry in time of war, and the Union accepted no responsibility therefor. From President Murray on down, the Union had pledged no strikes in war industries in war time and had denounced "wildcat" strikes. To find that these striking employees were acting for and on behalf of the Union would do violence to the facts and to the known policy of the Union from its President on down. It would violate the Union's pledge of no strikes in a situation that the Union had carefully kept out of.
The Board next insists that the discharge of the first shift necessarily discouraged membership in a "labor organization." If it did, that was not what the Board found. *861 The Board found, as we have heretofore pointed out, that such conduct discouraged membership in the Union.
Finally, the Board urges that for a violation of Section 8(1), 29 U.S.C.A. § 158 (1), it could have applied the same remedy of reinstatement with back pay which it applied for the violation of Section 8(3). The Board found that the discrimination in hire and tenure was for the purpose of discouraging membership in the Union and for such discrimination the respondent was guilty of a violation of Section 8(3). The Board never found that the discrimination in the hire and tenure had any relation to a Section 8(1) violation. The Board says it is not powerless to apply the same remedy for a violation of Section 8(1). We have no way of knowing what the Board might find and what remedies it might apply if given a "second bite at the cherry." We know only that the Board did not apply such remedy, and on that record we act and not on some other record the Board might have made.
The petition for rehearing is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568301/ | 300 S.W.2d 103 (1957)
Lynn SINCLAIR et al., Appellants,
v.
Comer BROWNLEE, Appellee.
No. 3435.
Court of Civil Appeals of Texas, Waco.
March 14, 1957.
Rehearing Denied March 28, 1957.
Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellants.
W. T. Bennett, Huntsville, Mac L. Bennett, Jr., Normangee, Robert E. Burroughs, Centerville, for appellee.
TIREY, Justice.
The action is grounded on negligence growing out of collision of an automobile with a cattle truck on Highway 75 in Montgomery County (non-jury). The cause was filed in Montgomery County and transferred to Leon County on plea of privilege (no contest).
In the judgment we find this recital: "* * * and the Court being of the opinion that the plaintiff Comer Brownlee is entitled to recover of and from the defendants, Lynn Sinclair and Rufus T. Johnson, personal property damages to the extent of $1,210.00, and the sum of $6,704.05 as damages for personal injuries and damages resulting therefrom to the said plaintiff, Comer Brownlee, as alleged in her petition" and decreed that she recover from both defendants the total sum of $7,994.05. Defendants seasonably filed amended motion for new trial and, it being overruled, *104 gave notice of appeal to this court and have perfected their appeal.
Defendants seasonably filed motion for findings of fact and conclusions of law and we quote the pertinent parts thereof:
"1. I find that on December 27, 1955, at approximately 8:00 P.M., a collision occurred between a 1955 Model Chevrolet truck with a trailer attached bearing cattle frames thereon, owned by Lynn Sinclair and being driven by the defendant, Rufus T. Johnson, and a 1953 Buick automobile owned and being driven by Comer Brownlee. Such collision occurred on U. S. Highway No. 75 approximately two miles north of the town of Willis in Montgomery County, Texas. That Comer Brownlee is plaintiff in the above entitled cause. Lynn Sinclair and Rufus T. Johnson are defendants in the above entitled and numbered cause.
"2. At the time of such collision the automobile being driven by said Comer Brownlee was traveling in a general southerly direction on said Highway No. 75 at the aforesaid time and place; that at the time of such collision the aforesaid 1955 model Chevrolet truck, pulling the aforesaid trailer being driven by the defendant, Rufus T. Johnson, was traveling in a general southerly direction. That as said vehicles approached the point of the aforesaid collision, the automobile being driven by Comer Brownlee was in the lead or ahead of the truck and trailer being driven by the defendant, Rufus T. Johnson, and as each vehicle started ascending a hill in their southerly travel, while the vehicle being driven by Comer Brownlee was traveling and being driven in its right hand (west) lane, said Rufus T. Johnson started driving the aforesaid truck and trailer to the left of and around the vehicle being driven by said Comer Brownlee as said vehicles ascended said hill on the east portion of said Highway No. 75. That as the said Rufus T. Johnson attempted to drive past the vehicle being driven by Comer Brownlee on said hill, the said Rufus T. Johnson then swung the truck he was driving across the center of said highway from the east to the west and into the lane of traffic occupied by the vehicle being driven by said Comer Brownlee, at which time and place the said Comer Brownlee, in attempting to avoid a collision between her said vehicle and the trailer being pulled by the truck being driven by Rufus T. Johnson, she applied her brakes and turned toward her right shoulder (west) of said highway, at which time and place the right rear end of defendant's truck abruptly collided with the left side of the automobile then being driven by Comer Brownlee. I find that as a direct and natural result of the collision, Comer Brownlee sustained personal injuries and the automobile owned by her and that she was driving on said occasion was damaged to the extent of $1,210.00. At the time of the occurence herein mentioned, Comer Brownlee, who was alone in the automobile that she was driving, was thrown therefrom and rendered unconscious.
"3. That at the time of the above mentioned collision, the defendant, Lynn Sinclair, was owner of the 1955 Model Chevrolet and the trailer then being pulled by the same. That at said time and said occasion, Rufus T. Johnson was then in the employment of Lynn Sinclair as a truck driver and was then driving said truck at the direction of the said Lynn Sinclair in route to a destination in Houston, Harris County, Texas, that he had been directed to go by the said Lynn Sinclair as his employer. That the employment of said Rufus T. Johnson, as an employee of Lynn Sinclair, was in the capacity of driving a truck. *105 That at such time the said Rufus T. Johnson was being paid by the said Lynn Sinclair to drive said truck to Houston and was driving the most true route from Oakwood in Leon County, Texas to Houston, Texas, and was then and there acting in the course and scope of his employment as a truck driver of and for Lynn Sinclair. That at such time and said occasion, one Dan Potts, who also worked for the said Lynn Sinclair was accompanying the said Rufus T. Johnson to Houston, Texas, in said truck.
"4. That the collision between the two above mentioned vehicles occurring of December 27, 1955, approximately two miles north of the town of Willis, and the resulting injuries sustained by said Comer Brownlee and the damages to the automobile which she was driving were each and all proximately caused by the negligence of said Rufus T. Johnson on the occasion in question in the following respects:
"(a) Rufus T. Johnson was driving said truck and trailer to the left of the center of the roadway in attempting to pass Comer Brownlee's automobile at a point on said highway where passing was prohibited by Subsection 1, Section 57 of Article 6701d, Vernon's Civil Statutes of Texas.
"(b) Rufus T. Johnson attempted to pass Comer Brownlee's automobile by passing to the left thereof on the left hand portion of said highway when the left of said highway was not clearly visible and free of oncoming traffic sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of Comer Brownlee's automobile, as provided in Section 56 of Article 6701d, Vernon's Civil Statutes of Texas.
"(c) That said Rufus T. Johnson was attempting to pass Comer Brownlee's automobile at the time and on the occasion in question.
"(d) Rufus T. Johnson drove said truck and trailer which he was operating at a greater rate of speed than a person of ordinary prudence, in the exercise of ordinary care, would have driven under the same or similar circumstances.
"(e) Rufus T. Johnson attempted to pass the automobile being driven by Comer Brownlee when the passing operation could not be made with safety.
"(f) Rufus T. Johnson was driving said truck at the time of the collision in question in willful or wanton disregard of the rights or safety of others and without due caution or circumspection, or at a speed or in a manner so as to endanger or be likely to endanger a person or property as provided by Sec. 51 of Article 6701d, Vernon's Civil Statutes of Texas.
"5. That Highway No. 75, at and near the scene of the collision made the basis of this suit on December 27, 1955, was a two lane highway marked with a center line down the center thereof. That the same was marked with a yellow stripe in the right hand lane thereof prohibiting passing of vehicles driving in the same direction and to the south thereon at the point where the collision made the basis of this suit occurred.
"6. Comer Brownlee was not guilty of any act or omission constituting negligence on the occasion in question. That Comer Brownlee did not fail to exercise that degree of care for herself or safety that would have been exercised by a person of ordinary prudence under the same or similar circumstances, and she was free of any negligence proximately causing or proximately contributing to the collision made the basis of this suit.
*106 "7. As a natural result of the personal injuries sustained by Comer Brownlee as a direct result of the collision, Comer Brownlee suffered damages in the sum of $6,784.05. That as a direct result of the collision Comer Brownlee has suffered personal property damages in the sum of $1,210.00.
"Conclusions of Law
"1. That at the time and on the occasion made a basis of this suit, Rufus T. Johnson was driving said truck as the agent, servant and employee of the defendant, Lynn Sinclair, and was then and there acting in the course and scope of his employment.
"2. That each and all of the acts and omissions as set out in Paragraph No. 4 hereof on the part of Rufus T. Johnson in driving and operating said truck and trailer constituted negligence, and each said act or omission was a direct and proximate cause of the personal injuries suffered by Comer Brownlee and the damages directly and proximately resulting therefrom, and the damages to her said automobile directly and proximately resulted from said acts and omissions found herein to constitute negligence.
"3. That from my finding of fact under Paragraph 6 of the foregoing Findings of Fact, I hereby conclude that Comer Brownlee was guilty of no act or omission of negligence that proximately caused or contributed to cause the collision made the basis of this action.
"4. That plaintiff, Comer Brownlee, is entitled to judgment against Lynn Sinclair and Rufus T. Johnson, jointly and severally, in the amount of $7,994.05, together with interest thereon at the rate of six per cent per annum from and after the 16th day of October, A.D. 1956 until paid, as well as all court costs incurred."
Appellants have assailed the judgment on eight points and we quote them substantially:
1. There is no competent testimony to support any finding that defendants were guilty of actionable negligence.
2. There is no competent evidence to support Finding of Fact No. 2, to the effect that the truck and trailer of the defendants was driven past the vehicle of the plaintiff and was then swung into the plaintiff's vehicle, the undisputed testimony of all competent witnesses and the undisputed physical facts showing conclusively that the accident occurred by reason of the fact that the plaintiff, who was driving her Buick automobile behind the defendants' truck and trailer, found herself unable to stop at her high rate of speed in the face of vehicles approaching from the opposite direction, and, as a result thereof, swung her car onto the shoulder to the right, throwing the left hand side of her car into the right rear corner of the trailer.
3. There is no competent testimony to support Finding of Fact No. 4 to the effect that the collision involved in this case was proximately caused by the negligence of the defendant Rufus T. Johnson on the occasion in question.
4. There is no competent testimony to support Finding of Fact No. 6 to the effect that the plaintiff was not guilty of any act or omission constituting negligence on the occasion in question, since the evidence conclusively shows that the sole cause of the collision was negligence on the part of the plaintiff.
5. The court's Conclusion of Law No. 2 is completely erroneous, for the reason that under the undisputed facts in this case, the defendant Johnson was guilty of no act of negligence proximately causing the collision involved in this case.
*107 6. The court's Conclusion of Law No. 3 is entirely erroneous, for the reason that under the undisputed facts in this case, the sole cause of the collision involved herein was the negligence of the plaintiff.
7. The court's Conclusion of Law No. 4 is completely erroneous, for the reason that under the undisputed facts in this case, the plaintiff is entitled to no judgment whatsoever against the defendants below, and the proper judgment that should have been rendered was one that the plaintiff take nothing, and that all costs of suit be taxed against her.
8. If appellants are mistaken in their contention that there was absolutely no evidence to support the findings of the court to the effect that the collision in this case was proximately caused by the negligence of the defendant Johnson, then certainly such findings are so contrary to the overwhelming preponderance of the evidence as to be clearly wrong, and they should be set aside.
Appellants, in their brief, say substantially that the foregoing assignments present practically one point and for that reason briefs them together, and further say "the real point is that under the undisputed testimony in this case, considered with the laws of nature, no negligence on the part of the defendants could possibly have caused the collision involved in this case and, on the contrary, the sole cause of the accident involved here was the negligence of the plaintiff." Under the foregoing conditions, it is our duty to review the entire testimony, and this we have done very carefully.
Appellee (age 29) testified to the effect that on the evening of the accident, December 27, 1955, she had left her home in a 1953 Buick car and was on her way to a little town in Montgomery County by the name of Willis, which is seven or eight miles from her home, and that she was proceeding in a southerly direction in the right traffic lane of such highway at the time of the accident; that she left her home some 15 or 20 minutes prior to the time that she had the accident and the evidence was without dispute that it was raining and it was dark. She specifically testified:
"I started up this first hill and leveled off, and I was driving along in my lane of the highway, and as I stated I was going very slow, and I started up the next hill, and I thought about stopping at this little restaurant over on the left and didn't, and as I was driving along this truck passed me, and at the same time lights flashed across the hill and the cattle trailer was passing me, and I tried to put on the brakes when I saw the lights, and at the same time the cattle trailer pulled into me, and whether I got the brakes on I don't know, it all happened in one split second. I don't know anything after that. * * * I was not conscious of the truck being behind me; I was conscious of lights behind me. * * *
"Q. Then as you approached the scene of the collision I will ask you whether or not that is when the truck started pulling around you? A. Yes, as I approached it. * * *
"Q. Which side of you did this truck start around you, Comer? A. The truck started around me on the left hand lane and passed on that side of me." (The highway at the scene of the accident had two traffic lanes with wide shoulders and it ran approximately north and south.)
That as she neared the top of the second hill she noticed that the truck with which she collided was passing her to her left; that is, the truck had pulled out into the traffic lane provided for traffic going in a northerly direction, and after the cab of the truck got a little past her (the exact distance she did not know) she saw a flash of lights to the south and that immediately *108 the truck began pulling to its right into the traffic lane where she was driving and the lane provided for traffic moving in a southerly direction, and that she began to pull her car to the right, and that the left front door of her car collided with the right rear end of the cattle truck, which was loaded with cattle, and that was the last thing that she knew until she regained consciousness in the hospital.
"Q. Where was the truck and trailer in regard to your position on the highway when you first saw these lights that you told the court about that came over the hill? A. I saw a flash of lights coming over the hill at the same time that the trailer pulled into me and I tried to put on my brakes and turn to the right, I saw all that at one time. * * *
"Q. When you saw this, these lights coming over the hill, I will ask you whether or not at that time you observed the trailer? A. Yes, I observed the trailer pulling into me at the same time that I saw the lights and at the same time I tried to pull to the right. * * *
"Q. In that respect I will ask you whether or not you had actually turned your steering wheel to the right or not? A. I tried to turn it to the right all at one time, the lights, and the trailer pulling over and me trying to turn the car. * * *
"Q. At that time I will ask you whether or not you know the exact speed or the speed that you were traveling? A. I was driving slow. I did not look at my speedometer, but I know that I was going very slow, because I was in no rush at all. I was thinking about the' phone call that I was going to make.
"Q. I believe you said something awhile ago about having thought there some place about stopping at a cafe or some place there at or near the scene of the collision. Is that correct? A. Yes, I had. I was looking for this cafe to see whether or not it was open. It was closed. I took my foot off the accelerator looking at it long about the time this happened. I noticed that it was closed, and I had not accelerated again.
"Q. In that respect I will ask you whether or not you applied your brakes at all as you were observing the cafe? A. No, I had not applied my brakes.
"Q. Did you or not determine whether or not the cafe was closed for business? A. Yes, I did. It was closed. I was just looking. That was about the time that this truck pulled in and I saw the flash of lights."
Appellant tendered appellee's testimony by deposition as follows:
"Q. * * * In other words, the impact took place while your car was in its southbound lane on the pavement, is that correct? A. It was in its own lane, yes.
"Q. And you were traveling in a southerly direction? A. Yes.
"Q. At about forty-five miles an hour? A. Forty or forty-five.
"Q. Now, is that an estimate or did you happen to glance at the speedometer, or what are the facts about that? A. I didn't exactly look at the speedometer, but I wasn't in a hurry. I was going slow, and I'm certain I wasn't going any faster than that. * * *
"Q. And you say, at that time, you were driving at about what rate of speed? A. Forty to forty-five."
With reference to the truck behind her, she testified:
"A. I really noticed him at the time he cut out.
"Q. How far was he from your car, relatively, approximately how far was *109 he from you at that time? A. I couldn't estimate that.
"Q. Would you say that his front bumper was right up close to your rear end at that time? Did he cut out abruptly or was he back a considerable distance down the highway when he cut to his left in order to pass you? Or do you know? A. I really don't know what distance.
"Q. * * * Then your testimony is that you didn't pay any particular attention to the truck until you noticed it in the left hand lane. Is that correct? A. Yes, pulling around and passing me.
"Q. And you can't tell us any of the facts relative to the positions of your car and the truck until he was up about to the side of you. Is that correct? A. Until he started coming around me.
"Q. Until he started coming around you. Then actually your testimony is that the first you knew of him was when you saw his headlights shining down the left hand side of the road. Isn't that correct? A. Oh, I saw them start around to pass me but I couldn't tell whether they were way back, I mean, I couldn't truthfully say how close he was when he pulled out to pass me.
"Q. Were you paying any particular attention to him at that time? A. I wasn't until he started passing me.
"Q. Was that the time when you were looking to see if the lights were on at the store up there? A. I had my mind on it as I was driving along.
"Q. You had your mind on the store. And you had not at that time when he cut out, you had not slowed down your speed, had you? A. It was about that time that I took my foot off the accelerator. I did not put the brakes on. That naturally slowed my speed up. * * *
"Q. I understand that you have estimated the speed to be between 40 and 45 miles per hour. Of course, if the truck was passing you it would be going at a greater rate of speed than that, wouldn't it? A. I am not sure about what my speed was as that time.
"Q. Well we have gone all over that. But the truck was going at a greater rate of speed than you were? A. The truck started passing me, he passed me part of the way.
"Q. Did he pass you rapidly or did he just gradually creep up on you after he cut out into his left lane? A. * * * It took a while for him to pull out and pass.
"Q. Was he going just a slight bit faster than you were or a great deal faster than you were or what are the facts about that? A. Well, he was going a little faster than I was.
"Q. Just a little faster. A. I am not certain exactly how fast he was going. * * *
"Q. * * * If you don't know just say so. A. I am not certain what speed he was going. * * *
"Q. Was he going ten miles an hour faster than you were or forty miles an hour faster than you were or was he going about the same rate of speed in passing you slowly? A. I understand your question, but it is hard for me to answer.
"Q. You just don't know? A. No. * * *
"Q. * * * That truck consists of a tractor or a truck and a trailer all of which is some over 40 feet long. Now, you said the truck got up past your car, now what do you mean by that? A. I mean the cab and then part of the trailer.
"Q. You were driving and there was a driver of the truck. Did he get *110 up even with you before you saw these lights flash? A. He was further up than that.
"Q. How much farther up? A. Way up.
"Q. I am speaking of the driver himself now. A. Yes. He was way up ahead of me before I saw the lights flash. * * *
"Q. Can you estimate how far south of you the driver of that truck was from where you were in your car? A. I had rather not.
"Q. It isn't a question of rather. A. I don't think that I could.
"Q. With any degree of accuracy. A. I don't think that I could. * * *
"Q. Well, you tell us what you know and describe to the court what you know relative to the position of those vehicles immediately before that light flashed in your face? A. Well, the cab was way up past.
"Q. You say way up. Go ahead. A. And the trailer was going up and it was back toward the end of the trailer because about that time the lights flashed and he started cutting in and I started trying to pull to the right so I could get off on the shoulder."
Appellants in their brief say: "Plaintiff's story, completely discredited by all of the other witnesses in the case, the many pictures taken and offered in evidence, and the physical facts * * *." As we understand appellants' position, it is to the effect that since the driver of the cattle truck and his companion both testified to the effect that they did not pass the appellee going up the hill and that they were in the right traffic lane going in a southerly direction when appellee's car collided with the rear end of their truck, and since the only skid marks on the highway were the ones in the right traffic lane, and since the drivers of the two buses going in a northerly direction saw the cattle truck before the accident happened, and saw it in its right traffic lane and saw the Buick car approach the cattle truck at a high rate of speed, one witness placing it as much as 55 miles per hour, and since one of the bus drivers, seeing the position of the cattle truck in the right traffic lane and the approaching Buick, realized that an accident was impending, and so stated to a passenger on the bus, and since an examination of all the exhibits tendered in evidence are to the effect that there were no scratches on the car except to the left door and top and left side of the Buick, there being an absence of any scratches or marks showing contact with the front of the car, that appellee's contention that the accident was caused by the cattle truck pulling sharply to the right and cutting in front of her is in conflict with all of the disinterested testimony tendered in this cause and that the appellee's theory, as well as the court's findings, are without any basis of fact whatsoever, and that such findings by the trial court are in conflict with all of the physical facts and surrounding circumstances and are in contradiction of the law of physics.
Needless to say, this cause has given us great concern, but the great weight and preponderance of the testimony is not determined by the number of the witnesses tendered. The trier of the facts had the right to take into consideration the demeanor of the witnesses and determine the credibility of each witness under all the facts and surrounding circumstances, and to find the facts. As we understand appellants in their brief and their counsel in argument before the court, appellee's entire story as to how the accident happened is unbelievable and that it is and was a physical impossibility for the accident to have happened in the manner that she says. Appellants' counsel undertook to demonstrate the impossibility of appellee's story in his argument by using two toy automobiles, one representing the cattle truck, which was somewhat larger than the toy automobile representing the Buick car. In this demonstration *111 it was appellants' contention that the cattle truck could not have pulled out for the purpose of passing the Buick car and cut in front of it without there being some marks or scratches on the front end of the Buick car. As we understand the testimony, the trailer part of the truck was some higher than the front part of the Buick car, but whether the bed of the cattle truck was higher than the front end of the Buick would not necessarily determine the way the accident happened because the testimony of the appellants and appellee is consistent in part in that it is to the effect that appellee pulled her car to the right. How quickly and how sharply she pulled her car to the right and the angle at which the truck cut into her traffic lane, if it did so, would necessarily have some effect as to what part of the Buick car struck the right rear end of the cattle truck. The appellee testified to the effect that she had a high school education, had done work in Baylor University and the University of Texas, lacking a little more than a year of having graduated from the University of Texas. She seemed intelligent; her testimony indicates that she seemed to know what she did know and was hesitant to testify to something that she was not sure about and tried to get away from making estimates because she said she did not know, and we think her testimony is consistent throughout as to the way the accident happened. Her story of the way the accident happened is in direct and irreconcilable conflict with all the other witnesses who testified in the case, save and except that she testified she pulled her car to the right immediately before the accident happened. Since the trial court heard appellee's story and believed her, we do not believe we are authorized to say that under all the facts and circumstances that it is not true. As a reviewing court, it is our duty to consider the evidence and the inferences properly to be drawn therefrom in the light most favorable to the party obtaining the verdict, and it is our duty in considering controverted issues of fact to accept as true that testimony which tends to support the verdict. 3-B Tex.Jur. pp. 370 and 372. Moreover, "Where the facts are controverted, or are such that different inferences may be reasonably drawn therefrom, an issue of fact is raised; it is only where the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. An issue of fact is `raised if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff." (Citing cases.) See Olds v. Traylor, Tex.Civ.App., 180 S.W.2d 511, 514, points 8 and 9 (writ ref.). Moreover, "The rule is well settled that the judgment of the trial court will not be set aside if there is any evidence of a probative nature to support it and that a court of civil appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court's findings.' See Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 977; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286. Burrus Mills v. Phillips, Tex. Civ.App., 260 S.W.2d 427, 430 (no writ history). We are of the further view that the statement of the rule in Re King's Estate, 150 Tex. 662, 244 S.W.2d 660, does not authorize us to overturn the findings of the trial court.
Accordingly, each of the points tendered by appellants is overruled and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568320/ | 139 F.2d 961 (1944)
BENNETT et ux.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 12605.
Circuit Court of Appeals, Eighth Circuit.
January 17, 1944.
Rehearing Denied February 8, 1944.
*962 *963 R. Shad Bennett, of Clayton, Mo., for petitioners.
S. Dee Hanson, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and A. F. Prescott, Sp. Assts. to Atty. Gen., on the brief), for respondent.
Before THOMAS and JOHNSEN, Circuit Judges, and MOORE, District Judge.
THOMAS, Circuit Judge.
This is a petition to review a decision of the Tax Court of the United States redetermining the tax liability of petitioners for the taxable years of 1936 and 1937. The taxpayers are husband and wife. They filed joint income tax returns for the taxable years. Their books were kept and their returns were filed on the cash receipts and disbursements basis.
Bennett is a lawyer and business man. His wife owns a considerable estate invested largely in securities. During 1936 and 1937 he maintained an office in the Telephone building in Saint Louis, Missouri, in space subrented from another lawyer. The office served as headquarters for all of his legal and business activities.
Petitioners allege that the Tax Court erred (1) by refusal to allow deductions (a) for office and traveling expenses, (b) for automobile insurance, (c) for loss of a $10,000 mortgage, (d) for loss of a lot in West Palm Beach, Florida, (e) for loss in a trading account, (f) for depreciation on rental property; (2) by including in income (a) gains from a trading account and (b) dividends paid to a broker; (3) by approving a negligence penalty; and (4) by denying claimed earned income.
The deductions claimed for office and traveling expenses are for the most part related to Bennett's law practice. His gross income from the practice of law in 1936 was $400 for work done for his landlord, the entire amount of which was applied on the office rent. The Tax Court allowed additional office expenses aggregating $1170.50 and refused to allow claimed expenses aggregating $1458.45. Some of the items were disallowed for lack of proof and others because they were not "ordinary and necessary expenses" within the meaning of the applicable statute, § 23(a) of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev. Acts, page 813.
The petitioners assign the refusal of the court to allow these items as error; but they fail to point out wherein the court erred.
The burden is upon a taxpayer to establish a deductible loss or expense and the amount of it. Burnet v. Houston, 283 U.S. 223, 227, 51 S. Ct. 413, 75 L. Ed. 991; Botany Mills v. United States, 278 U.S. 282, 289, 290, 49 S. Ct. 129, 73 L. Ed. 379. The Commissioner's determination is presumably correct, and when supported by the findings of the Tax Court, the taxpayer upon appeal should point out specifically wherein the court erred. We have examined the record with care and we find no mistake in the reasoning, or in the findings and conclusions, of the Tax Court upon this issue. See Acer Realty Co. v. Commissioner, 8 Cir., 132 F.2d 512, 514.
At the hearing before the Tax Court petitioners claimed an allowance of $83 for automobile insurance as a business expense during 1936. The Tax Court found from the evidence that the automobile was used chiefly but not wholly for business purposes. In their 1936 return petitioners claimed a deduction for this item in the amount of $53.50 which the Commissioner disallowed and the Tax Court allowed. The petition for review alleges error for refusal to allow the entire claim for $83.
The taxpayers fail to sustain the burden of showing that the court erred.
In their petition to review the taxpayers allege that the court erred "in refusing to allow a deduction of $10,000 for loss of a mortgage on property in Coral Gables, Florida." The facts found by the Tax Court are not disputed. In summary they are that in 1927 Bennett loaned a Florida corporation $10,000 for which he took a note dated March 22, 1927, payable on or before five years with interest at 8% and secured by a first mortgage on four lots situated in Coral Gables, Florida. Interest was paid for about two years when, due *964 to bankruptcy or the imminence thereof, title to the lots was transferred to another corporation which continued the payment of interest until 1931 or 1932. Interest payments were then discontinued. Due to the insolvency of the maker Bennett did not foreclose the mortgage.
For approximately $3,000 Arthur McBride acquired tax sale certificates on the lots for undisclosed years, and in August, 1936, brought suit in the state court to foreclose them. Bennett was named a defendant. After investigating the possibility of redemption he concluded that it would be "uneconomic" for him to do so. In the fall of 1936, in consideration of the payment to him of $100 by McBride, Bennett entered his appearance in the suit and delivered the note and mortgage to McBride's attorney "in order to expedite the proceeding and to save himself any cost in connection therewith." Bennett denied that he sold the note and mortgage in 1936 for $100, and claimed loss for the face of the note without deduction of the amount received.
On December 30, 1936, a final decree was entered in the suit, foreclosing the tax lien and ordering a sale, after giving notice for 28 days, unless there should be an earlier redemption. The decree provided that after the sale Bennett's right of redemption would be barred. The sale was confirmed on March 24, 1937.
Except the $100, Bennett never received anything further for the note and mortgage.
The Tax Court held that both the Commissioner and Bennett had proceeded upon the erroneous theory that the deduction, if any, was allowable under the loss provisions of the statute, whereas, if deductible at all, it was allowable under the bad debt provisions. Applying the bad debt rule the court refused to allow the deduction in 1937 because on the evidence presented the debt became worthless, and Bennett ascertained it to be so, in some year prior to 1936.
Neither the Tax Court nor this court is bound by the theory of the Commissioner. If the disallowance of the deduction is right it should be affirmed by the application of the correct rule of law. Helvering v. Gowran, 302 U.S. 238, 245, 58 S. Ct. 154, 82 L. Ed. 224; Hormel v. Helvering, 312 U.S. 552, 61 S. Ct. 719, 85 L. Ed. 1037.
Bennett asks this court to decide whether the loss he sustained was deductible under the loss or the bad debt provision of the statute. We think the position taken by him before the Tax Court was decisive. If he did not sell the note and mortgage to McBride in the fall of 1936, what he did sell was merely the nuisance value of his right of redemption from the tax foreclosure sale, and there is no evidence to show that such right was worth more than the $100 he received for it. The $10,000 debt evidenced by the note became worthless in his judgment, as shown by his conduct, prior to 1936. No interest had been paid for four years prior to 1936; he had not thought it worth while to pay taxes on the lots; and as early as 1929 or 1930 he knew that the maker of the note was insolvent. The evidence supports the finding of the court. The decision of the Tax Court must, therefore, be affirmed. Helvering v. Rankin, 295 U.S. 123, 55 S. Ct. 732, 79 L. Ed. 1343.
In 1925 Mrs. Bennett loaned one E. B. Donnell $4,200, for which she received two notes of $2,100 each, secured by a mortgage on an unimproved lot in West Palm Beach, Florida. Donnell failed to pay the notes when due, and in 1927 the taxpayers instituted foreclosure proceedings against William F. Stieff, who had become the owner of the lot subject to the mortgage. The proceedings were dismissed under an agreement whereby the taxpayers delivered the notes to Stieff in return for a conveyance of the lot subject to all unpaid taxes subsequent to 1924.
On December 31, 1936, an owner of tax sale certificates against the lot instituted a foreclosure proceeding against the taxpayers in a Florida state court. In March, 1937, pursuant to the court's decree, the lot was sold by a special master after the taxpayers had defaulted in payment of the amount owing by them on the certificates.
In their 1936 return the taxpayers took a deduction of $4,000 as a loss on the lot. The Commissioner disallowed the deduction. In their petition to the Tax Court they claimed a loss of $4,200 for 1937 instead of for 1936. At the hearing before the Tax Court they took the position that the loss of $4,200 was sustained in 1936.
The Tax Court held that it was immaterial whether the petitioners sustained the loss in 1936 or in 1937 because the Commissioner's disallowance should be sustained in any event. The grounds for that holding *965 were that the basis for determining any loss on the disposition of the property is its fair market value on the date of acquisition and that the Tax Court was unable to find from the evidence that the lot had any value at the time it was acquired in 1927 in excess of the taxes outstanding against it. Sections 202(a), 203(a) and 204(a), Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, pages 147, 148, 151; Helvering v. Missouri State Life Ins. Co., 8 Cir., 78 F.2d 778.
The taxpayers had the burden of showing that the Tax Court's finding that the evidence did not show any value on the lot in excess of outstanding taxes at the date of acquisition by the taxpayers is not supported by substantial evidence. Burnet v. Houston, 283 U.S. 223, 51 S. Ct. 413, 75 L. Ed. 991. They have not met this burden.
In their brief petitioners say: "We also ask this court to determine, first whether losses in a trading account on the stock exchange carried on for profit may be taken as deductions from income taxes in excess of $2,000.00, either by including the total amount of the losses or by adding to the $2,000.00 the transfer taxes", etc. The question is not properly before us for decision. We, therefore, decline to consider it.
No statement of facts or argument is set out in the brief disclosing any issue upon this point. In the opinion of the Tax Court, however, we find that after each party had closed his case before the court petitioners sought to amend their pleadings to show that Bennett had sustained a loss of at least $14,000 in the purchase and sale of securities in 1937 and had claimed a deduction of only $2,000 on his return. It was claimed that under such an issue raised in an amended petition the proof would show that petitioners would have no net income in 1937.
Upon the theory that the proposed amendment would raise a new issue after the case had been closed the court held that the request to amend was untimely and denied the motion. There was no abuse of discretion in so holding. California Brewing Ass'n v. Commissioner, 43 B.T.A. 721; Com'r v. California Brewing Ass'n, 9 Cir., 129 F.2d 321.
Petitioners then argued that their petition raised the issue without amendment. This argument was based on the allegation that "Petitioners further claim an adjustment for the taxes paid for the year 1937, due to the fact that the same were erroneously paid and that said sum should in equity be repaid petitioners." We agree with the court that the allegation does not raise the issue presented in the proposed amendment.
In 1926, 1927, and 1928, respectively, Bennett acquired three residential properties in the city of Saint Louis at costs of $15,000, $10,000, and $25,300 each. The first two were rental properties. Bennett expended $16,000 in improvements on the third property and occupied it as a residence until 1934 when it also became rental property.
In their income tax returns for 1936 and 1937 petitioners took a deduction each year in the amount of $1,600 for depreciation on the three properties. For each year the Commissioner allowed $578.37 of the deduction taken and disallowed the balance in the amount of $1,021.63. Before the Tax Court petitioners claimed a deduction for depreciation in each year of $2130.
At the hearing before the Tax Court the taxpayers submitted evidence of the date of the construction of the residences and of the fair market value of the land on which they were built. The building on the first lot was about 40 years old; on the second, about 50 years old; and on the third, about 30 years old. No evidence was submitted as to the probable useful lives of the first and second buildings at the date of their acquisition nor of the third at the time petitioners ceased to use it as a residence and devoted it to rental purposes. In the absence of such evidence the court held that it was unable to determine the rate or rates of depreciation applicable and sustained the determination of the Commissioner for lack of proof.
The petitioners contend that the court should have determined the useful life of the buildings from the evidence submitted.
Section 23(l), 26 U.S.C.A. Int.Rev.Code § 23(l), of the Act provides that in computing the net income there shall be allowed as a deduction a reasonable allowance for exhaustion, wear and tear of property used in a trade or business.
Treasury Regulations 94, Art. 23(1)-1 provides in part: "The proper allowance for such depreciation of any property used *966 in the trade or business is that amount which should be set aside for the taxable year in accordance with a reasonably consistent plan, * * * whereby the aggregate of the amounts so set aside, plus the salvage value, will, at the end of the useful life of the property in the business, equal the cost or other basis of the property determined in accordance with section 113."
The burden was on petitioners not only to show that the Commissioner's determination was wrong, but also to produce evidence from which another and proper determination could be made. Lightsey v. Commissioner, 4 Cir., 63 F.2d 254, 255; Botany Mills v. United States, supra. Except the evidence relating to the age of the buildings there is no proof upon which to base a calculation as to their probable useful economic life, such as the material of which they are constructed, the original cost of construction, and other facts necessary to be considered in making such a determination. Pittsburgh Hotels Co. v. Commissioner, 3 Cir., 43 F.2d 345, 347.
The petitioners rely upon First Nat. Building Corporation v. Jones, D.C. Okl., 36 F. Supp. 682, 683, contending that the Commissioner or the Tax Court must determine the rate of depreciation when the proof shows the age of the property, the type of the property and the physical conditions. The case does not support such contention. There the evidence produced by both parties showed "the useful economic life of the building", and the court considering such evidence and other testimony determined the issue of probable useful life. Here the situation is very different. No opinion evidence was produced and the data in the record is insufficient to support an intelligent guess. Under these circumstances the Tax Court could neither reverse nor modify the determination of the Commissioner.
The petitioners reported capital gains in the amount of $9,192.87 from trading in stocks and bonds during 1937. The Commissioner determined the gains to be $10,139. The Tax Court determined the amount to be $8,984.57. The taxpayers say the correct amount is $7,441.11. No appeal was taken from the finding of the court in respect of this item, but we are asked to inspect the evidence and determine who is right, the court or the taxpayers. Since no proper appeal has been taken we shall not discuss the issue. We have reviewed the evidence, however, and find that it supports the finding of the court.
Bennett contends that $875 representing dividends paid on his stocks and credited to his margin account by his brokers during 1937 is not taxable income because never received by him for the reason that the account resulted in a loss.
Article 42-2 of Regulations 94 promulgated under the Revenue Act of 1936 provides that "Income which is credited to the account of or set apart for a taxpayer and which may be drawn upon by him at any time is subject to tax for the year during which so credited or set apart, although not then actually reduced to possession." Since the dividends were paid on Bennett's stocks to his agent and credited on his account with his consent they were constructively received by him. He availed himself of the right to direct their use and received the benefit of a credit for them. Avery v. Commissioner, 292 U.S. 210, 54 S. Ct. 674, 78 L. Ed. 1216; Loose v. United States, 8 Cir., 74 F.2d 147; Foley v. Commissioner, 3 Cir., 94 F.2d 958. The fact that at the time the account was closed he sustained a loss on the sum of his transactions is immaterial.
The Tax Court sustained the Commissioner's determination of a 5% negligence penalty under § 293 of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Code, § 293, and petitioners object.
Section 293(a) of the Act provides that "If any part of any deficiency is due to negligence, or intentional disregard of rules and regulations but without intent to defraud, 5 per centum of the total amount of the deficiency * * * shall be assessed, collected, and paid * * *."
Under the statute the imposition of the penalty is dependent upon a finding that some part of the deficiency is due (1) to negligence or (2) to intentional disregard of rules and regulations. A finding that the return is incorrect, or that the taxpayer did not keep proper or complete books of account, or that his calculations are confusing is not enough. Little v. Helvering, 8 Cir., 75 F.2d 436, 439; Plunkett v. Commissioner, 1 Cir., 118 F.2d 644, 650; Board v. Commissioner, 6 Cir., 51 F.2d 73, 76; Bothwell v. Commissioner, 10 Cir., 77 F.2d 35, 38.
*967 The Commissioner based his action upon a finding that the taxpayers failed to keep sufficient records in regard to income and expenditures; claimed a loss on a mortgage without reporting the income derived; and failure to report various items pertaining to income and deductions in the correct amounts; and that such failures constituted negligence or intentional disregard of rules and regulations.
The Tax Court found that Bennett "kept no books and records which would properly reflect his transactions entered into for profit or the results of any business conducted by him and that in making his income tax return he made no serious effort to assemble or organize facts and data essential to making of a proper return", and sustained the penalty.
The record shows that the deficiency found to exist resulted from claimed deductions not allowed and from failure to report as income gains from a trading account and dividends paid to a broker. All these items are clearly the result of a mistaken conception of the taxpayers' legal rights. While ignorance of the law is not an excuse for wrongful acts, we think it is distinguishable from negligence within the meaning of § 293. Had the taxpayers been better advised as to their legal rights, and had they kept correct accounts of their business transactions, they might have taken deductions in the proper years for whatever losses were actually sustained by them on the $10,000 and the $4,200 mortgage loans in Florida. We think the Commissioner and the Tax Court erred in respect of the penalty under § 293.
The redetermined joint net income of the taxpayers for the taxable year 1936 was fixed at $21,659.18. They were allowed an earned income credit of $1,400, or 10% of $14,000. They contend that they should be allowed 10% of the entire joint net income, or $2,165.90. Petitioners have not shown what part of their adjusted net income for 1936 consisted of earned income. In any event, however, they can not complain. Section 25(a) (4) (C) of the Act, 26 U.S.C.A. Int.Rev.Code § 25(a) (4) (C), provides that "In no case shall the earned net income be considered to be more than $14,000", and § 25(a) (3) limits the credit to 10% of earned income. A joint return by a husband and wife must be treated as a return of a taxable unit and as though made by an individual. Although the earned income of both husband and wife may be aggregated for the purpose of credit the total can not "be considered to be more than $14,000." Section 25(a) (4) (C) of the Act. Compare Taft v. Helvering, 311 U.S. 195, 61 S. Ct. 244, 85 L. Ed. 122, and Art. 25-2 of Regulations 94 as amended by T.D. 5057, 1941-2, Cum. Bull. 97-98. The Tax Court did not err in the computation of the earned income credit.
The decision of the Tax Court is modified by the elimination of the penalty imposed under § 293 of the Act, and as so modified it is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568343/ | 10 So. 3d 976 (2009)
Gaila Tate McCaskill OLIVER f/k/a Gaila Tate McCaskill in her Capacity as Executrix of the Estate of Jeffrey L. McCaskill and as Next Friend to Matthew McCaskill, Josh McCaskill and Hunter McCaskill, Minors, Appellant
v.
The GOODYEAR TIRE & RUBBER COMPANY, Appellee.
No. 2006-CA-01220-COA.
Court of Appeals of Mississippi.
April 28, 2009.
*977 Frank J. Dantone, Edward D. Lamar, Greenville, attorneys for appellant.
J. Collins Wohner, David L. Ayers, Jimmy B. Wilkins, Jackson, attorneys for appellee.
Before LEE, P.J., IRVING and BARNES, JJ.
LEE, P.J., for the Court.
FACTS AND PROCEDURAL HISTORY
¶ 1. Jeffrey McCaskill was killed in a one-vehicle accident while driving on a two-lane farm road in Washington County. A tire on the left front side of McCaskill's truck burst; and McCaskill lost control of the truck, struck an embankment, and was thrown from the truck. At the time of the accident, McCaskill was exceeding the speed limit and was not wearing his seatbelt. There was also considerable testimony at trial concerning McCaskill's failure to properly repair and maintain the tire.
¶ 2. On June 14, 2002, Gaila Tate McCaskill Oliver (Gaila), as executrix of the estate of Jeffrey McCaskill, individually, and as next friend to Matthew McCaskill, Josh McCaskill, and Hunter McCaskill, minors, filed a complaint in the Washington County Circuit Court against The Goodyear Tire & Rubber Company (Goodyear); Tim Kirby and Lawrence Ellis Bodron d/b/a K & B Tire Service, Inc.; and Tiffany and Jay Pickle d/b/a K & B Tire Service, Inc. The suit alleged negligence, defective design and manufacture of the tire, failure to warn, and breach of warranty. Ellis Willard was subsequently substituted for Bodron, but ultimately, K & B Tire Service and the parties associated with it were dismissed with prejudice. Prior to trial, Gaila voluntarily dismissed her individual claims, but she continued to pursue the case as plaintiff in her representative capacity.
¶ 3. A trial on the matter was held in the circuit court from June 12-23, 2005. The jury returned an interrogatory verdict on jury instruction D-29-A. On the first question, the jury found unanimously for Goodyear on the design-defect and failure-to-warn claims, but the jurors were divided on the defective-manufacture claim. The instruction indicated that there were seven "No" votes and five "Yes" votes. The form instructed the jury that they should proceed no further with their deliberation if they answered "No" to all parts of the first question. The form also instructed the jury to proceed to the next question if they answered "Yes" to any part of the first question. The jury proceeded to answer the second question, which stated: "(2) Do you find that the defective and unreasonably dangerous condition you found in question 1 above to be the proximate cause of the death of Jeffrey McCaskill?" The jury marked "No" in response to this question. The jury was instructed that if they had answered "No" to that question, they were to notify the bailiff that they had reached a verdict. The jury left the remaining questions blank.
¶ 4. The trial court polled the jury and noted that the response to the second question was unanimous. Gaila asked the trial court to require the jury to resume deliberations. The trial court declined, finding that those five who answered "Yes" to the defective-manufacture claim determined that it was not the proximate cause of McCaskill's death.
¶ 5. Gaila subsequently filed a motion for a new trial, which the trial court denied. *978 Gaila now appeals, asserting the following issues: (1) the trial court erred in failing to require the jury to continue deliberations concerning whether the tire was defectively manufactured; (2) the trial court erred in reforming the jury verdict; and (3) the trial court erred in denying her motion for a new trial. Finding no error, we affirm.
DISCUSSION
¶ 6. As all of Gaila's issues are related, we find it appropriate to combine them. Gaila's chief contention is that the jury verdict was unresponsive and the trial court should have granted a new trial.
¶ 7. Mississippi Code Annotated section 11-7-157 (Rev.2004) states: "No special form of the verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein." The supreme court has held that the test of whether a verdict is sufficient as to form "is whether or not it is an intelligent answer to the issues submitted to the jury and expressed so that the intent of the jury can be understood by the court." Miss. Valley Gas Co. v. Estate of Walker, 725 So. 2d 139, 151(¶ 45) (Miss. 1998) (quoting Harrison v. Smith, 379 So. 2d 517, 519 (Miss.1980)); see also White v. Stewman, 932 So. 2d 27, 37(¶ 28) (Miss. 2006).
¶ 8. We find that the jury substantially complied with the requirements of the law in rendering the verdict. The jury intelligently answered the issues submitted and expressed its intent to the court. The trial court found that although five members of the jury determined that the tire was defectively manufactured and seven members found no evidence of defective manufacture, all twelve members agreed that the condition of the tire was not the proximate cause of McCaskill's death.
¶ 9. Gaila also contends that the trial court should have sent the jury back for further deliberation pursuant to Mississippi Code Annotated section 11-7-161 (Rev. 2004). Section 11-7-161 states: "If the verdict is not responsive to the issue submitted to the jury, the court shall call their attention thereto and send them back for further deliberation." Uniform Rule of Circuit and County Court 3.10 allows the trial court to direct the jury to continue deliberations "[i]f a verdict is so defective that the court cannot determine from it the intent of the jury." Gaila cites numerous cases to support her position; however, the cited cases concern either ambiguous verdicts or the failure of the jury to properly apportion fault. See Adams v. Green, 474 So. 2d 577 (Miss.1985) (trial court committed reversible error when it failed to return the jury to the jury room to reform the verdict as to the question of one defendant's liability); Lambert Cmty. Hous. Group, L.P. v. Wenzel, 987 So. 2d 468 (Miss.Ct.App.2008) (reversed and remanded for a new trial because the form of the instruction paired with the verdict was in conflict and was ambiguous, and the trial court erred in failing to order the jury to deliberate further to reform its verdict).
¶ 10. We find no merit to Gaila's issues and affirm.
¶ 11. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568345/ | 403 F. Supp. 1399 (1975)
In re NATIONAL RECREATION PRODUCTS, INC., a California Corporation, aka Barnes Enterprises, Debtor. Appeal of Joseph J. RIFKIND.
No. 75-3673-HC(ALS).
United States District Court, C. D. California.
October 1, 1975.
*1400 Frank B. Belcher, Belcher, Henzie & Biegenzahn, Los Angeles, Cal., for appellant.
William D. Keller, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civ. Div., Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for United States as amicus curiae.
ORDER REVERSING BANKRUPTCY JUDGE'S ORDER ENTERED April 29, 1975
STEPHENS, Chief Judge.
Appellant, Joseph J. Rifkind, has filed an appeal with this court, pursuant to Bankruptcy Rule 801, seeking a review of an order entered April 29, 1975, by Bankruptcy Judge Howard V. Calverley. This court has jurisdiction to review Bankruptcy Judge Calverley's order under Section 2a(10) of the Bankruptcy Act [11 U.S.C. § 11(a)(10)].
In June, 1973, Joseph J. Rifkind retired after serving as a Referee in Bankruptcy and Bankruptcy Judge for 18 years. At that time, Mr. Rifkind began receiving his retirement annuity under the Civil Service Retirement Act pursuant to Section 40d(1) of the Bankruptcy *1401 Act [11 U.S.C. § 68(d)(1)]. Immediately following his retirement, in July, 1973, Mr. Rifkind was recalled to service as a Referee in Bankruptcy and Bankruptcy Judge. Hereafter, the term referee will be used to accord with the language used in the Bankruptcy Act and in Bankruptcy Rule 503. Mr. Rifkind served in this capacity for 14 months. During this period, he continued to receive his retirement annuity. In August, 1974, Mr. Rifkind terminated this period of recall service and resumed his retired status. He presently receives monthly annuity payments.
In September, 1974, the appellant returned to the practice of law, and in March of 1975, Mr. Rifkind appeared as attorney for petitioner-debtor in the bankruptcy case of National Recreation Products, Inc. At the request of Bankruptcy Judge Calverley, a hearing was convened to determine whether Mr. Rifkind could continue to appear as counsel for the petitioner and practice bankruptcy law while receiving retirement benefits pursuant to Section 40d(1) of the Bankruptcy Act.
Bankruptcy Judge Calverley issued a Memorandum of Decision and Order holding appellant ineligible to practice as counsel for petitioner. He based his decision on Section 39b of the Bankruptcy Act [11 U.S.C. § 67(b)]. Section 39b, which was last amended in 1966, provides, in pertinent part:
"Active full-time referees shall not exercise the profession or employment of counsel or attorney, or be engaged in the practice of law; nor act as trustee or receiver in any proceeding under this Act. Active part-time referees, and referees receiving benefits under paragraph (1) of subdivision d of section 40 of this Act, shall not practice as counsel or attorney nor act as trustee or receiver in any proceeding under this Act."
Section 40d(1) of the Bankruptcy Act provides that "[a]ll referees in bankruptcy . . . shall be deemed to be officers . . . in the judicial branch of the United States Government within the meaning of the Civil Service Retirement Act."
In reaching his decision, Bankruptcy Judge Calverley considered the question of whether Section 39b of the Bankruptcy Act is in conflict with the new Bankruptcy Rule 503, and, thus, of no further force or effect. The Bankruptcy Rules, which became effective in October of 1973, were prescribed by the Supreme Court and reported to Congress pursuant to 28 U.S.C. § 2075, which provides in pertinent part:
"All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."
The rules were enacted to govern practice and procedure under the Bankruptcy Act. Included in the Bankruptcy Rules is Rule 503, as follows:
"A referee shall not engage in any transaction, directly or indirectly, with the estate and shall not act as trustee or receiver in any case under the Act. An active full-time referee shall not engage in the practice of law, and an active part-time referee shall not act as attorney for any party in any case under the Act."
Rule 503, which is derived from Section 39b of the Bankruptcy Act [Bankruptcy Rule 503, Advisory Committee's Note], does not include the restriction on activities of referees receiving benefits found in Section 39b.
Mr. Rifkind urged Bankruptcy Judge Calverley to conclude that Bankruptcy Rule 503 conflicts with and thus supersedes Section 39b because Section 39b includes a provision which prohibits a referee who is receiving retirement benefits from practicing as counsel or attorney in any bankruptcy proceeding, while Rule 503 does not contain such a provision. Bankruptcy Judge Calverley concluded that no conflict exists and that Section 39b prohibits Mr. Rifkind from practicing before him.
The issue presented to the court by this appeal is whether Section 39b applies *1402 to former referees who are receiving retirement benefits and have not been reemployed for service as referees.
The appellant offers three arguments in support of his position that a former referee who has retired can practice before the bankruptcy courts. First, he argues that Section 39b has been superseded by Bankruptcy Rule 503.
Second, appellant contends that Section 39b applies only to those former referees receiving retirement benefits who have been recalled to service as referees.
Third, Mr. Rifkind urges that the construction given Section 39b by Bankruptcy Judge Calverley violates due process and equal protection of the law as guaranteed by the United States Constitution. For the reasons which appear below, it is not necessary to give consideration to this last contention.
As to the first contention that Section 39b is in conflict with the new Bankruptcy Rule 503, appellant invites the court's attention to the Advisory Committee's Introductory Note to the Preliminary Draft of the Bankruptcy Rules in which the Committee explains that "[r]ules promulgated pursuant to 28 U.S.C. § 2075 supersede laws, including provisions of the Bankruptcy Act, in conflict with such rules after they take effect." 1 Collier on Bankruptcy 11 (14th ed. Spec.Supp.1974). The Advisory Committee's Note concerning Rule 503 explains that the restriction on activities of referees receiving benefits found in Section 39b has been deleted from Rule 503 because "this is a matter which should be correlated to the benefits provided such referees by Congress. . . ." Bankruptcy Rule 503 is silent on the activities of referees receiving benefits, and mere silence does not create a conflict with Section 39b. Thus, whatever prohibitions are found in Section 39b are still the law.
The sole reported case in which the prohibition of Section 39b is interpreted is In re Cummings, 384 F. Supp. 112 (W.D.N.Y.1971). In that case, the provision in Section 39b which restricts the activities of referees receiving benefits was construed by United States District Judge Curtin as applying only to former referees who have retired and been recalled to service pursuant to Section 40d(2) of the Bankruptcy Act [11 U.S. C. § 68(d) (2)]. Id. at 113. Judge Curtin found that the purpose of including "referees receiving benefits" in Section 39b was "to make sure that, if a former referee were called upon to serve and . . . actually did serve, he would be prohibited from acting as attorney or trustee in any bankruptcy proceeding." Id. Judge Curtin reasoned that:
". . . if an ex-referee is recalled to service and he accepts, he should be barred from acting as an attorney or trustee. On the other hand, this court does not perceive any conflict of interest arising where an exreferee, not recalled, serves as an attorney or other officer." Id. at 113-14.
Bankruptcy Judge Calverley declined to follow the Cummings decision, stating that the interpretation of Section 39b by Judge Curtin in Cummings "vitiates Section 39b and makes it incongruously superfluous." Memorandum of Decision and Order, 5-6. He concluded that a recalled referee is an active referee, and as such his conduct already is governed by the first part of Section 39b. Thus, Bankruptcy Judge Calverley reasoned that the portion of the last sentence of Section 39b which deals with referees receiving benefits must apply only to those referees who are retired and inactive.
The court disagrees with Bankruptcy Judge Calverley and concludes that the phrase "referees receiving benefits" found in Section 39b applies only to former referees who have retired and have been recalled to service. The term "referee" is defined in Section 1(26) of the Bankruptcy Act [11 U.S.C. § 1(26)] as one "who has jurisdiction of the case or to whom the case has been referred or anyone acting in his stead." Thus, *1403 the word denotes a person who has the power to act in bankruptcy cases.
A referee serves a term of six years. Section 34a of the Bankruptcy Act [11 U.S.C. § 62(a)]. The referee's power to act in bankruptcy cases ceases when his six year term expires and a successor is appointed to fill the vacancy. Section 34a of the Bankruptcy Act. See also, In re Guaranty Trust Co., 25 F. Supp. 265 (Or.1938). Thus, once a bankruptcy referee's term has expired, he is no longer a "referee." In most cases, a retired referee becomes merely a participant under the Civil Service Retirement Act, receiving retirement benefits pursuant to Section 40d(1) of the Bankruptcy Act. Thus, an unrecalled, retired referee who is receiving retirement benefits is not a "referee" receiving benefits within the meaning of Section 39b.
When Section 39b is read together with Sections 40d(1) and (2) of the Bankruptcy Act, it is apparent that the phrase "referees receiving benefits" found in Section 39b refers only to former referees who have retired and are receiving benefits pursuant to Section 40d(1) and who have been recalled to service under Section 40d(2).
Sections 40d(1) and (2) of the Bankruptcy Act provide:
"d. (1) All referees in bankruptcy and employees in the offices of such referees shall be deemed to be officers and employees in the judicial branch of the United States Government within the meaning of the Civil Service Retirement Act.
"(2) Any referee who has retired or been retired under the provisions of paragraph (1) of this subdivision may, if called upon by a judge of a court of bankruptcy, perform such duties of a referee, conciliation commissioner, or special master under this Act, within the jurisdiction of the court, as he may be able and willing to undertake. The retired referee shall receive as compensation for his services, either full or part time, the salary authorized for the referee serving the territory to which the retired referee is assigned. However, the rate of compensation of a retired referee assigned to serve on a full-time basis in the territory of a part-time referee shall be the minimum rate established by the Judicial Conference of the United States for full-time service. Salaries authorized under this paragraph shall be subject to the provisions of section 13(b) of the Civil Service Retirement Act."
Section 39b was amended and Sections 40d(1) and (2) were enacted as part of the Referees' Salary Act of 1946. PL 464, 79th Cong., 2d Sess., 60 Stat. 326. Under Section 40d(1), as added by the Salary Act, referees were given the benefits accorded judicial officers of the United States within the terms of the Civil Service Retirement Act. Section 40d(2) was enacted so that the services of a former referee, who had retired, could be utilized, if he were called upon by a district judge and if he wanted to return to work.
If a former referee, who has retired, is recalled to service by order of a district judge and that former referee accepts, he once again has the status of a "referee" in that he may perform all the duties of a referee. There are, however, features of his service which distinguish a recalled annuitant from active full-time or part-time referees. Among them are the nature of his compensation and tenure. A former referee who has retired and has been recalled to service pursuant to Section 40d(2) continues to receive his retirement annuity pursuant to Section 40d(1). Initially, the recalled annuitant received only his retirement allowance, but in 1962, Section 40d(2) was amended to provide that the recalled annuitant was to receive as compensation for his services "the salary authorized for the referee serving the territory to which the retired referee is assigned." Thus, the recalled referee presently receives his annuity payment as a retired referee in one check and a *1404 salary, equal to the difference between a regular salary and the recalled referee's annuity, in another check, as provided in 5 U.S.C. § 8344(a).
Therefore, a former referee who has retired and has been recalled to service pursuant to Section 40d(2) has the power to act in bankruptcy cases and is again a referee. However, such an individual is a referee who is "receiving benefits" and this distinguishes him from an active full-time or active part-time referee. It is indisputable that active full-time or part-time referees do not receive retirement annuity benefits. Thus, recalled annuitants are "referees receiving benefits" as that phrase is used in Section 39b.
The phrases "active full-time referees" and "active part-time referees," found in Section 39b, describe referees who have been appointed to serve during a term fixed by law and who have not yet retired. These phrases also connote the percentage of working time which is to be devoted by such referees to the performance of their duty. It is further notable that provisions for compensation for these referees are made accordingly. With respect to the word "active," as used in Section 39b, similar terminology is used in Title 28 United States Code with reference to United States District Judges. Those district judges who presently are holding office are said to be in "regular active service." Once a judge has retired, however, he is no longer deemed to be active, although he retains his office and salary and continues to discharge the same judicial duties as before. See 28 U.S.C. §§ 371-72.
Similarly, once a referee retires he is no longer an active referee. Further, even if a former referee who has retired is recalled to service, he cannot be said to be in "active" full-time or part-time service. He has been specially designated by a judge, pursuant to Section 40d(2), to return to service as a referee at the pleasure of the court which may be an indefinite period. When he has returned to service he once again is one "who has jurisdiction of the case" and has the power to act, but he is still a retired referee. It is this fact which makes his recall and compensation possible. Such a person can best be described as a recalled annuitant and he is certainly not an active full-time or part-time referee. Thus, it would appear that the phrase "referees receiving benefits" was included in Section 39b so that the activities of recalled annuitants would be covered and the phrase is not redundant.
The court agrees with the conclusion of Judge Curtin in In re Cummings, 384 F. Supp. 112 (W.D.N.Y.1971), that the provisions of Section 39 concern only the duties and powers of persons who presently are serving as referees in bankruptcy. Nowhere in Section 39b are former referees who have retired proscribed from practicing law before the bankruptcy courts. Since the appellant is not presently a bankruptcy judge or referee, having retired, the only conclusion to be drawn is that the proscriptions of Section 39b are not applicable to him. Thus, Mr. Rifkind is eligible to practice law before the bankruptcy courts.
Where possible, it is preferable to base a decision concerning a question of law on statutory construction than on constitutional issues. In this case, it is unnecessary for the court to reach the issue of the constitutionality of Section 39b.
Accordingly, the decision of Bankruptcy Judge Calverley is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568344/ | 300 S.W.2d 75 (1957)
Robert HALE, Appellant,
v.
The STATE of Texas, Appellee.
No. 28868.
Court of Criminal Appeals of Texas.
March 6, 1957.
Fred Bruner, Dallas, Enoch Fletcher, Grand Saline, for appellant.
Joe Tunnell, Criminal Dist. Atty., Canton, and Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Presiding Judge.
The offense is assault with intent to rape; the punishment, ten years.
The 49-year old appellant and his family resided near the home of the 6-year old prosecutrix in a rural section of Van Zandt County.
According to the prosecutrix' parents, on the night in question the appellant came to their home, secured their consent to take the prosecutrix to his home to spend the night so that his wife might give her a hairdo and fit her with a dress for a school event on the day following.
The appellant, testifying in his own behalf, stated that he was intoxicated on the *76 occasion in question, admitted that he left the prosecutrix' home with her that night and that when he woke up the following morning he was at his home alone with the little girl. The appellant's wife testified that she and her children did not spend the night at their home because she was afraid of the appellant when he was intoxicated.
Both the appellant and his wife testified that he had sustained an injury sometime prior to the occasion in question and that he had been unable to perform an act of intercourse since and, further, that he was not able to have an act of intercourse when he was drinking.
We now return to the State's case in chief. Prosecutrix' father testified that he went to the appellant's home the following morning and found prosecutrix crying, that he carried her home, and she reported to him immediately that the appellant had hurt her, indicating the area of her vagina and rectum, and that he had done so with "his old thing."
Prosecutrix' grandmother was summoned, found the child crying, examined her vagina and rectum, found the vagina to be torn, the entire area of the vagina and rectum to be sore, noticed that the child walked "spraddle-legged," which was entirely different from the way the child had walked on the day preceding.
The officers were called, and the child was carried to Dr. Marsh for examination. We quote from his testimony as follows:
"So far as the vulva of the so-called female private parts, it was red, inflamed and the areas inside the lips appeared to have some excoration; there was a watery, bloody discharge from the vaginal orifice. So far as the rectum was concerned, it gave the appearance of have been stretched beyond the usual capacity. The normal muscle which caused it to close was not in adequate tone. The rectum was slightly agape, without being held open. Radiating from the area of the rectum around the peritoneumin other words, the area between the vagina and the rectumwas radiating, technically speaking, striae.
"Q. What is striaewhat does that mean?
"A. Striae, or markings produced where the skin is stretched beyond the usual capacity or limitation, similar to the markings you see on a pregnant woman's abdomen when it becomes so stretched."
He further expressed the opinion that it would be highly impossible for a grown male to penetrate the vagina of a girl of that age with his sexual organ but that the rectum of a child of that age has more capacity of dilating than does the vaginal opening, and the injuries to the rectum were inflicted by some object as large as a male organ. He stated further that he secured a smear but was unable to satisfactorily establish the presence of male sperm.
The prosecutrix was not called as a witness.
The appellant called Dr. Turner, who stated that he had examined the child on the day in question and was unable to find any evidence that she had been raped. The State rebutted his testimony with evidence that Dr. Turner's examination had been hurriedly made.
The evidence will be more fully stated in discussing the contentions set forth in the appellant's brief.
It is first contended that the court erred in permitting the prosecutrix' father to recount the outcry made by the child when he got her from the appellant's home the following morning.
Recently, in Haley v. State, 157 Tex. Crim. 150, 247 S.W.2d 400, we had occasion to discuss the admissibility of the outcry of a little girl made soon after she left the presence of the accused. We have concluded *77 that the Haley case is here controlling and supports the correctness of the trial court's ruling.
Next it is contended that the testimony of Dr. Marsh as to the condition of the prosecutrix' rectum was not admissible because the indictment in this case was for assault with intent to rape and not sodomy.
In Sims v. State, 156 Tex. Crim. 218, 240 S.W.2d 297, 301, a rape case, we held admissible evidence that the accused shot the injured female after he had raped her. We said:
"It has so many times been held that all of the facts and circumstances surrounding the commission of the offense are admissible as circumstances, not only of guilt but of the intent and nature of the crime that the jury may consider same not only on the question of guilt, but in determining the punishment to be meted out therefor. Surely citation of authorities on this subject is not necessary, but we refer particularly to Myers v. State, 105 Tex. Crim. 426, 289 S.W. 49: Grimmett v. State, 22 White & W. 36, 2 S.W. 631; Grace v. State, 90 Tex. Crim. 329, 234 S.W. 541; and Smith v. State, 80 Tex. Cr.R. 82, 188 S.W. 983."
Appellant further contends that the court erred in failing to charge the jury on the law of circumstantial evidence.
Reliance is had upon Sanders v. State, 127 Tex. Crim. 55, 75 S.W.2d 116. We call attention at the outset that the Sanders case was a rape case, while, in the case at bar, the jury found the appellant guilty of assault with intent to rape. The Sanders case was reversed, among other reasons, because penetration was not shown beyond a reasonable doubt. If penetration had been shown in the case at bar, then the offense would have been rape and not assault with intent to rape. In Allen v. State, 36 Tex. Crim. 381, 37 S.W. 429, we said:
"Where the entry is not actually effected, but there is an endeavor to penetrate by the use of force, this is sufficient to constitute the act an assault with intent to rape. In this case, we think the evidence establishes beyond a reasonable doubt, if the defendant in fact did not penetrate the private parts of the prosecutrix with his male organ, that he made the effort to do so. This is evidenced by the irritation and soreness of the parts of the child, testified to by the mother and the physicians, and also by the fact that the defendant communicated to her a veneral disease.
"Appellant asked a charge on circumstantial evidence, which the court refused to give, and he now assigns this as error. We think the evidence in this case is of a positive character. At least, the facts and circumstances of the case are of such a character as to place the defendant in such close proximity and juxtaposition to the main fact as to render a charge on circumstantial evidence unnecessary."
We have concluded that the Allen case is here controlling and that the court did not err in refusing to charge as requested. The testimony of the doctor, plus the outcry of the little girl, abundantly supports the conclusion that the appellant attempted to have an act of intercourse with the prosecutrix and, when he failed in this effort, then committed an act of sodomy upon her.
Appellant's last complaint lies in the court's failure to charge on aggravated assault.
In Daywood v. State, 157 Tex. Crim. 266, 248 S.W.2d 479, 481, a fondling case wherein the court's failure to charge on aggravated assault was assigned as error, we said:
"At this juncture, it will be noted that, merely because a lesser offense *78 is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged."
We find no evidence in this case which would indicate that the appellant, if guilty at all, is guilty only of aggravated assault.
Appellant contends that error was reflected by the following question propounded to the appellant in cross-examination: "As a matter of fact you were convicted of the aggravated assault upon Paul Climber (the prosecutrix's father) with a rifle * * *."
The court sustained the objection, the question was not answered, the court instructed the jury not to consider the question but declined the appellant's motion for a mistrial.
In order to determine if the asking of the question was proper, we must examine the appellant's testimony on direct examination by his own counsel. He was first asked his name, age, marital status, and education and was then asked if he knew Climer and if he had had any trouble with him. Upon receiving an affirmative reply, he was then asked if they were both armed at the time and where the fight had occurred and was then asked about the facts in the case at bar. On cross-examination, he was interrogated further about the same fight mentioned in his direct testimony, and the question set forth above was propounded.
Without doubt, the question was proper since the appellant had brought up the subject of their prior fight and the State had the right to question him fully concerning the same.
In oral argument before this Court, the appellant raises the question of a variance between the indictment and the proof. The indictment charged the last name of the prosecutrix as being "Climber"; the proof showed it to be "Climer."
Recently, in Pierce v. State, 160 Tex. Cr.R. 646, 274 S.W.2d 408, we held that "Barber" and "Barba" were idem sonans and cited as authority Raven v. State, 149 Tex. Crim. 294, 193 S.W.2d 527, in which the names "Zoder" and "Zoda" were held not to constitute a variance. See also Gafford v. State, Tex.Cr.App., 100 S.W. 375.
Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.
DAVIDSON, Judge (dissenting).
It is my opinion that this is a case resting upon circumstantial evidence.
There was no direct evidence showing appellant guilty, as charged.
The charge on circumstantial evidence should have been given.
I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568597/ | 772 S.W.2d 497 (1989)
Joseph Alvin MORELOS, Appellant,
v.
The STATE of Texas, Appellee.
No. A14-87-439-CR.
Court of Appeals of Texas, Houston (14th Dist.).
May 18, 1989.
*499 Allen C. Isbell, Houston, for appellant.
Cathleen Herasimchuk, Houston, for appellee.
J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.
OPINION
CANNON, Justice.
This is an appeal from a murder conviction. TEX.PENAL CODE ANN. § 19.02 (Vernon 1989). A jury found Joseph Alvin Morelos guilty of murder, as charged in the indictment, and the trial court assessed punishment at life imprisonment in the Texas Department of Corrections. Appellant's five points of error challenge the trial court's overruling his pre-trial motion to suppress and his trial objections to two State's exhibits and an allegedly improper question by the prosecutor. We affirm.
Shortly before midnight on November 15, 1985, Robert Norman Dale died from a gunshot wound to the face and neck inflicted at close range. Earlier that evening, Dale and his wife attended a movie shown at 9 p.m. at a theater in the Baybrook Mall in Houston. They had parked their pickup truck in the lot of the Sears store nearby because the mall parking lot was full. Robert watched only a little of the movie; after complaining of a headache, he left the theater and went to his truck to take a nap and wait for Mrs. Dale.
Mrs. Dale left the theater when the movie ended, shortly after 11 p.m. She walked to the pickup truck, looked in and saw that her husband was asleep. He had stretched out across the seat from a sitting position on the passenger side so that his head was near the steering wheel. As Mrs. Dale started to open the door on the driver's side, she looked up suddenly and saw the appellant open the door of his nearby car, get out quickly, walk around his car and walk directly toward her. She could see a gun in his raised hand. After opening the truck door, Mrs. Dale frantically tried to get inside while trying to rouse her husband. When she looked up, appellant had reached the front of the truck. He was looking directly at her and she got an almost full view of his face. As Mrs. Dale continued to struggle to get inside by trying to push up her husband's shoulders and torso, appellant stepped between the still open door and the driver's seat. Robert had awakened by then and had started to sit up; he only had time to scream before appellant aimed and fired a single, fatal shot into Robert's face at point blank range. Mrs. Dale was still attempting to get further inside the truck, but saw appellant's face a second time as he stood firing at her husband, whose body then slumped into her lap. Appellant aimed and fired two more shots, which hit Mrs. Dale in the arm and the leg, before fleeing in his car. Robert Dale died at the scene.
Police officers interviewed Mrs. Dale at a hospital emergency room later that night. *500 She told the officers she could recognize the assailant. She and another witness both said the murderer was wearing a green jacket.
Another witness who testified at the trial had attended the same movie as the Dales that evening. He left the theater at approximately the same time as Mrs. Dale. He had also parked near the Sears store and was walking toward the lot when he heard three shots. He saw a man walk briskly away from a pickup truck to a nearby car, get in and speed away. The witness wrote down the license plate numbers and call letters of the fleeing car as "694 GOW." He told the Houston Police Sergeants dispatched to the scene of the murder that he knew the "O" he had written was not correct. Sergeant John Swain knew this was so because Texas does not print the letter "O" on its license plates.
About an hour and a quarter after the killing, at 12:17 a.m., Officer Davidson of the Brazoria County Sheriff's Department saw a car in the ditch by the side of Highway 35 at a location about thirty miles from the Baybrook Mall. Appellant was in the car, a 1980 yellow Plymouth with the license plate 694 GDW. He had driven into the ditch and could not get out. When Officer Davidson investigated, appellant told him he must have fallen asleep and had no idea where he was. The officer could tell appellant had been drinking, although he did not appear intoxicated. Officer Davidson called a wrecker to pull appellant's car out of the ditch.
In the meantime and continuing through the early morning hours of Saturday, November 16, Sergeant Swain had searched twenty-four possible license combinations through the Department of Safety computer, substituting various letters for the "O" the witness had given him. Swaim eventually found a 1980 four door Plymouth with the license plate number, 694GDW, although he had other possible addresses based on different letter combinations. After investigating several of these addresses during the day on November 16, Swain and his associate, Sergeant Johnny Moore, located a yellow 1980 Plymouth in the driveway at 927 Gober Street. They also learned that Joseph Alvin Morelos, the appellant, and Joseph Ernest Morelos, among others, were apparently living at the address. Believing that the address and car were their "best possibility" based on their investigation, the officers began surveillance at the Gober Street address at approximately midnight that same night.
The officers saw a male jogger enter the house on Gober Street late Sunday evening, November 18. They later learned the man was the appellant. At 6:50 a.m. the next morning, November 19, the officers saw appellant come out of the house at 927 Gober Street, get into the Plymouth and drive away. Sergeant Swain radioed for a patrol unit to stop appellant's car. The officers then proceeded to follow and arrested appellant a short distance away after giving him his legal warnings. After appellant consented in writing to a search of his car, the officers found a black belt, key ring, double clip holder for an automatic weapon, camera, cassette recorder, .38 bullet and a green jacket which appeared to match eyewitness descriptions of the assailant's clothing. Mrs. Dale was transported from the hospital that afternoon to view a lineup. She identified appellant as the murderer without hesitation and also identified him at trial.
When he testified in his own behalf at trial, appellant claimed he was with friends at the house of Curtis Smith until about 10:30 p.m. on the night of the murder. Appellant testified he and Robbie Andrews left Smith's house to eat at a fast food restaurant. Appellant claimed he drove Andrews home, left "to go home" himself at around 11:15 p.m., but then drove alone down Almeda Genoa Road to "waste" time, although he was planning to return to pick up Andrews at 2:30 a.m. to leave on a hunting trip. Appellant admitted wearing a green jacket that night and drinking a substantial amount of alcohol. He also admitted he had placed his gun in the glove compartment of his car early in the evening of the murder. Andrews testified also; he confirmed the appellant was wearing a green jacket that evening.
*501 Appellant's first and second points of error question the trial court's overruling his motion to suppress the items the arresting officers recovered from his vehicle. Both points of error focus on testimony concerning a green jacket the officers seized from the vehicle. In his first point of error, appellant maintains his illegal, warrantless arrest tainted the admissibility of the items and any trial testimony relating to the items. Appellant raises an alternative argument in his second point of error: he concedes he executed a written consent for a search of his vehicle, but claims the form was invalid and therefore tainted the fruits of the search and any related testimony, based either on his illegal arrest or his failure to freely and voluntarily consent. Because the trial court alone resolves factual issues at a hearing on a motion to suppress, we will uphold its decision to overrule appellant's motion, provided it has support in the record. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App. [Panel Op.]), cert. denied, 454 U.S. 952, 102 S. Ct. 490, 70 L. Ed. 2d 258 (1981); accord, Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App. 1986) (en banc), overruled on other grounds in Juarez v. State, 758 S.W.2d 772, 780 n. 3 (Tex.Crim.App.1988) (en banc) (appellate court views facts at hearing on motion to suppress in light most favorable to the ruling).
An arrest obtained without a warrant is inherently unreasonable as a general rule. Beasley v. State, 728 S.W.2d 353, 355 (Tex.Crim.App.1987) (en banc). Although a case-by-case assessment determines probable cause to support a warrantless arrest under the federal constitution, e.g., Pyles v. State, 755 S.W.2d 98, 109 (Tex.Crim.App.) (en banc), cert. denied, ___ U.S. ___, 109 S. Ct. 543, 102 L. Ed. 2d 573 (1988), Texas law requires the State to satisfy one of the exceptions set forth in the Code of Criminal Procedure when police fail to obtain a warrant to arrest the accused. Id.; DeJarnette v. State, 732 S.W.2d 346, 349 (Tex.Crim.App.1987).
Appellant bases his objections on the exception created by TEX.CODE CRIM. PROC.ANN. art. 14.04 (Vernon 1977), which governs "Arrests when Felony Has Been Committed" and states:
Where it its shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused (emphasis added).
The statute safeguards against unreasonable seizure of the person and facilitates apprehension of suspects who would escape pending procurement of a warrant. See DeJarnette, 732 S.W.2d at 350.
Officers Swain and Moore pursued and arrested appellant without taking the time to procure a warrant when they followed him in his car from the 927 Gober Street address on the morning of November 19, 1985. For Article 14.04 to justify the arrest, the State had to show the officers had "satisfactory proof" that: 1) a felony had been committed; 2) the appellant was the offender; and 3) the appellant was "about to escape." DeJarnette, 732 S.W.2d at 349; accord, Sklar v. State, 764 S.W.2d 778, 780 (Tex.Crim.App.1987) (citing same).[1]
Evaluating compliance with the "about to escape" exception in Article 14.04 has proved difficult for Texas courts. See Stanton v. State, 743 S.W.2d 233 (Tex. Crim.App.1988) (en banc, McCormick, J., concurring). At a minimum, the facts of the particular case, the "concrete factual *502 situation spread on the record," must justify an Article 14.04 arrest. Stanton, 743 S.W.2d at 235, quoting King v. State, 631 S.W.2d 486, 497 (Tex.Crim.App.) (en banc), cert. denied, 459 U.S. 928, 103 S. Ct. 238, 74 L. Ed. 2d 188 (1982); DeJarnette, 732 S.W.2d at 352. As a general rule, the arresting officer's personal observations, or information the officers receive from a credible person, can supply the "satisfactory proof," Stanton, 743 S.W.2d at 235, and the State need not show that the accused was "actually escaping." West v. State, 720 S.W.2d 511, 514 (Tex.Crim.App. 1986) (en banc), cert. denied, 481 U.S. 1072, 107 S. Ct. 2470, 95 L. Ed. 2d 878 (1987); cf., DeJarnette, 732 S.W.2d at 349; Fry v. State, 639 S.W.2d 463 (Tex.Crim.App. [Panel Op.] 1982), cert. denied, 460 U.S. 1039, 103 S. Ct. 1430, 75 L. Ed. 2d 790 (1983) (opinion on State's motion for rehearing, en banc) (State need not "in fact" prove that offender was about to escape or that there was not time to obtain a warrant). Further, the information before the arresting officer need not convince him beyond a reasonable doubt that the accused would escape to be "satisfactory" under Article 14.04. DeJarnette, 732 S.W.2d at 349. Proof is "satisfactory" if it leads the arresting officers to reasonably believe the offender "would take flight if given the opportunity to do so," Stanton, 743 S.W.2d at 236, quoting West, 720 S.W.2d at 518, so that there is no time to procure a warrant. Fry, 639 S.W.2d at 476.
In our opinion, the State offered sufficient proof that Article 14.04 justified the warrantless arrest of the appellant. Officers Swain and Moore knew from their investigation and the eyewitness reports that a felony had been committed, thereby satisfying the first element of Article 14.04. They also knew the offender had escaped in a car whose general description matched, and whose license plates might match, the car parked in the driveway at 927 Gober Street, the site of their surveillance.
But the officers were not at all certain of the second element required by Article 14.04, that appellant was the offender. Although their investigation showed a car bearing license number 694GDW registered to the appellant, the officers' initial search for his address revealed only a post office box. Further investigation disclosed that several people, including two Messrs. Morelos, lived at the Gober Street address. The officers had "no idea" what either Mr. Morelos looked like when they began surveillance, although the description of the assailant obtained from eyewitnesses was "close" to the description of appellant the officers obtained through Department of Public Safety license records.[2] Moreover, the officers' search for prior addresses revealed one for appellant, two additional addresses for Joseph Ernest Morelos and a third prior address they shared. Under the totality of information apparent to the officers, Robert Dale's murderer was a person meeting appellant's description who might live at 927 Gober Street, where someone had parked what might be the escape vehicle. As of late Sunday, November 17, although Officer Swain conceded there had been time to get an arrest warrant, he lacked basis for a warrant since nothing more than suspicion connected appellant to the murder.
Only when the officers saw appellant leave the house on the morning of November 18 and enter the suspect vehicle did they have probable cause to believe he was the offender. A similar scenario occurred in DeJarnette, when police officers realized, only immediately before his arrest, that the accused met a witness's description of the offender. 732 S.W.2d at 353. By connecting appellant to the offense through the total circumstances perceived by the arresting officers, i.e., the eyewitnesses descriptions and his entering and *503 driving away in what was probably the suspect vehicle, the officers then had "satisfactory proof" that appellant was the offender, the second element required by Article 14.04. See King v. State, 631 S.W.2d at 497. This element, taken together with the officers' awareness that the suspect had previously fled the scene of the murder in what was probably the same car, provided the officers with "satisfactory proof" of the third element: reasonable belief that appellant would take flight again "if given the opportunity." West, 720 S.W.2d at 518. As in Trammell v. State, 445 S.W.2d 190 (Tex.Crim.App.1969), the officers' knowledge of the suspect's having once escaped justified a fear he would attempt to flee again. See Stanton, 743 S.W.2d at 237, citing Trammell, 445 S.W.2d at 193; see also, King, 631 S.W.2d at 497 (probable cause to believe accused was the offender, coupled with "circumstances already within the officers' knowledge" provided "well founded" basis for suspicion that accused would try to flee).
The instant case, like DeJarnette, differs markedly from cases like Sklar and Stanton. In Sklar, the court of criminal appeals held that police should have obtained a warrant because they knew the name and address of the accused and their informant gave no indication the accused would attempt to escape. 764 S.W.2d at 780. And although "[t]he mere fact of driving away from one's own house in the morning, without more, is not sufficient to show escape" under Article 14.04, Stanton, 743 S.W.2d at 236, that case is also distinguishable. In Stanton, the court of criminal appeals held that it would abrogate the escape provision of Article 14.04 to uphold the warrantless arrest of a suspect who was simply going from one place to another when the arresting officer knew the offender's name, knew the place where he was, lay in wait to arrest him if he left that place and admitted there was no other reason to justify a belief that escape might occur. 743 S.W.2d at 235. Under the concrete factual situation presented by this case, we conclude Article 14.04 authorized the officers' warrantless arrest of the appellant.[3]
Tex Code Crim.Proc.Ann. art. 14.03 (Vernon Supp.1989) provides an alternative basis for the warrantless arrest. Under Article 14.03(a), a peace officer may arrest persons without a warrant who are "found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony." As in Woodward v. State, 668 S.W.2d 337 (Tex.Crim.App.1982), cert. denied, 469 U.S. 1181, 105 S. Ct. 939, 83 L. Ed. 2d 952 (1985) (opinion on State's motion for rehearing, en banc), the arresting officers' had a well founded suspicion that appellant was the offender when they saw him driving what the officers reasonably believed was the car in which the suspect had made his getaway. See Thomas v. State, 681 S.W.2d 672 (Tex.App.Houston [14th Dist.] 1984, pet.ref'd) (a "suspicious place" can be any place where a person's actions or the circumstances give rise to a reasonable belief that the person had committed or was committing a felony). Under the totality of information before the officers, Article 14.03 also justified appellant's warrantless arrest.
Although appellant concedes he executed a written consent permitting Officers Swain and Moore to search his car, he disputes that document on two grounds in his second point of error. He first questions his consent "in light of the illegal arrest." While we overrule this contention because we have concluded that appellant's arrest was valid, we note that even an illegal arrest will not categorically exclude evidence obtained as a result of a consent search. E.g., Juarez v. State, 758 S.W.2d at 780. Appellant also contends the State failed to show he consented to the search by clear and convincing evidence. We cannot agree.
Warrantless searches, like warrantless arrests, are inherently unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 *504 L.Ed.2d 854 (1973). But a showing that appellant consented to the search of his vehicle can remove any taint from the evidence seized which would have resulted from: any illegality in the arrest, the arresting officers' acknowledged failure to first obtain a search warrant, or their lack of probable cause to search the car, provided the State offered clear and convincing evidence that appellant "freely and voluntarily" consented. See Juarez, 758 S.W.2d at 776, citing Schneckloth; Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim.App.1976); cf., Brown v. Illinois, 422 U.S. 590, 601-03, 95 S. Ct. 2254, 2260-61, 45 L. Ed. 2d 416 (1975) (voluntary consent which is "sufficiently an act of free will" can even vitiate taint from evidence seized pursuant to an illegal arrest). The totality of circumstances determines whether appellant voluntarily consented to the search of his vehicle. Juarez, 758 S.W.2d at 776; cf., Eishenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.) (en banc), cert. denied, ___ U.S. ___, 109 S. Ct. 127, 102 L. Ed. 2d 101 (1988) (totality of circumstances test controls probable cause determinations for both warrantless and warrant seizures of persons and property). Voluntariness is a question of fact to be determined from the totality of all the circumstances, Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48.[4]
While noting the distinction between cases which dispute the accused's consent to search, like Juarez and the instant case, and cases which dispute the voluntariness of a confession, like Brown v. Illinois, the Juarez court nonetheless approved the four factors enunciated in Brown as "guidelines" for determining whether the totality of circumstances indicates voluntary consent to a search. 758 S.W.2d at 780. While the factors are "not absolutely controlling," they include: 1) whether the accused received a Miranda warning; 2) the time between the arrest and the consent to search; 3) the presence of intervening circumstances; and 4) the purpose and flagrancy of the official misconduct. Juarez, 758 S.W.2d at 780, 781.
Before applying the above factors, we note that the form which appellant signed indicates he had a constitutional right to require a search warrant and could refuse to consent. Appellant nonetheless authorized Officers Swain and Moore to search his vehicle and take any property found therein. The form further recites that the permission "is being given ... voluntarily without threats or promises of any kind and is given with my full and free consent."
Officers Swain and Moore and the appellant testified at the hearing on the motion to suppress. Although appellant denied receiving any warnings until he arrived at the police station, both officers testified that Officer Swain warned appellant of his Miranda rights at the scene before attempting to obtain his consent to the search. Since the officers' testimony supports the trial court's denial of appellant's motion to suppress, we are not at liberty to disturb its implied finding that appellant received a Miranda warning based only on appellant's disputed version of the facts. Green, 615 S.W.2d at 707; Daniels v. State, 718 S.W.2d at 704. Accordingly, we conclude the record reflects that appellant received a Miranda warning.
The second Brown factor is the time between the arrest or stop and the consent. Juarez, 758 S.W.2d at 781. The record indicates that very little time passed between the initial stop and arrest and Officer Swain's obtaining appellant's consent. This factor might ordinarily favor an accused, generally indicates a likelihood that "the taint of the illegal arrest or stop has not been purged," Id. (emphasis added)," but is the "least determinative" of the Brown factors. Id. The factor is thus of minimal importance when, as in the instant case, the police officers validly arrested the accused.
*505 The facts of appellant's case require that we address the third and fourth factors together: the presence of intervening factors and the purpose and flagrancy of official misconduct. Free and voluntary execution of a written consent to the search is an intervening factor that weighs heavily in favor of the State, Juarez, 758 S.W.2d at 782, but allegations of official misconduct in obtaining the consent would necessarily weaken the consent. Here again, however, the record contains conflicting versions of how freely and voluntarily appellant consented to the search.
Officer Swaim claimed he told appellant he could refuse to consent to a search of his automobile.[5] According to Swain, appellant stated he "didn't mind" and signed the form.[6] Swain denied using physical force and verbal and non-verbal intimidation to coerce the consent and stated that appellant was not handcuffed when he signed the form. Swain also testified that appellant indicated he understood the contents of the form. Appellant claimed Officer Swain coerced his consent by telling him "they were going to search the car and that I might as well go ahead and sign the consent that he was bringing up, because they were going to get a warrant to search the car anyway ... [h]e told me I didn't have any choice, and if I signed it things would go better." Although appellant claimed he was "intimidated" because the officers approached him with drawn guns, he conceded, under cross-examination, that the officers had holstered their guns by the time they had arrested him and placed him in the rear of the police car, where Officer Swain approached him to obtain his consent. He also conceded that no officer struck him at the scene. Faced with these conflicting versions of the incident, we must presume that by overruling appellant's motion to suppress, the trial court impliedly found that the officers did not coerce appellant's consent by overreaching or other misconduct and that appellant gave his written consent to the search freely and voluntarily. Green, 615 S.W.2d at 707; Daniels v. State, 718 S.W.2d at 704.
After applying all four Brown factors to the record before us, we conclude that the proof supports the trial court's implied finding that the State offered "clear and convincing" evidence of appellant's free and voluntary consent to the search of his vehicle.
Furthermore, we cannot agree with appellant's contention that the real evidence of the jacket and testimony that the fleeing suspect was wearing a green jacket both contributed to his conviction. Mrs. Dale's pre-trial and trial identification of the appellant were alone sufficient to sustain his conviction. We further note that in his "Statement of Person in Custody," appellant described his clothing on the night of the murder as a "real heavy Army field jacket" which "was that Army green in color ... It's real bright green in color...." In addition, Robbie Andrews testified the appellant was wearing a green jacket that evening. Accordingly, while we do not agree that the trial court erred in overruling appellant's motion to suppress, we hold that any possible error in admitting the evidence seized from appellant's vehicle was harmless beyond a reasonable doubt. TEX.R.APP.P. 81(b)(2). After reviewing the entire record, we conclude "that the minds of an average jury would not have found the State's case significantly less persuasive" had the trial court granted appellant's motion to suppress. Smith v. State, 744 S.W.2d 86, 94 (Tex. Crim.App.1987) (en banc), quoting Schneble v. Florida, 405 U.S. 427, 432, 92 S. Ct. 1056, 1060, 31 L. Ed. 2d 340 (1972) (emphasis by court of criminal appeals).
In sum, we find no error in the trial court's denying appellant's motion to suppress because appellant's arrest was valid *506 under either Article 14.04 or 14.03 of the Code of Criminal Procedure and because the State offered clear and convincing evidence that appellant freely and voluntarily executed a written consent authorizing the arresting officers to search his vehicle. Alternatively, we hold that any error in overruling the motion was harmless beyond a reasonable doubt. We overrule the first and second points of error.
In his third point of error, appellant maintains the trial court erred by overruling his objection to State's Exhibit 62, a photograph of the Dale family. Appellant argues the photograph had no probative value and was prejudicial in view of his simultaneous offer to stipulate to the identity of the deceased. He also complains of the prosecutor's referring to the photograph during her closing argument. Before the State offered the photograph into evidence, Mrs. Dale had already testified that she and Robert Dale were husband and wife and that they had three sons, one of whom was her stepson. The photograph depicted those five individuals. There is no error in admitting a photograph when testimony offered without objection shows the same proof. Brown v. State, 696 S.W.2d 913, 914 (Tex.Crim.App.1985) (en banc); Brooks v. State, 599 S.W.2d 312, 318 (Tex. Crim.App.1979) (en banc); cf., Green v. State, 682 S.W.2d 271, 292 (Tex.Crim.App. 1984) (en banc), cert. denied, 470 U.S. 1034, 105 S. Ct. 1407, 84 L. Ed. 2d 794 (1985) (a trial court abuses its discretion by admitting a photograph only when the probative value of a photograph is very slight and its prejudicial value very high); see also, TEX. R.CRIM.EVID. 403 (exclusion of relevant evidence on special grounds).
Appellant maintains admitting the photograph was highly prejudicial in this case because the prosecutor referred to the photograph in her closing argument, stating that the beauty of the Dale family unit, had been "shattered by the blackness of this defendant's heart." In addressing this contention, we note that appellant failed to object to the prosecutor's reference to the photograph of the Dale family and thereby waived any error, except that which contributed to conviction or punishment, by the combined effect of Tex.R. App.P. 81(b)(2) & 52(a). Accord, Sawyers v. State, 724 S.W.2d 24, 38 (Tex.Crim.App. 1986) (en banc) (steps for preserving claimed jury argument error). But even if appellant had objected, the prosecutor's argument would have been proper in this case as a response to argument initiated by appellant's trial counsel. See Modden v. State, 721 S.W.2d 859, 862 (Tex.Crim.App. 1986) (en banc) (response to opposing counsel's arguments is one of four permissible areas of jury argument). Appellant's trial counsel had referred to the "lovely Dale family" and "that fantastic family" at the beginning of his closing argument and referred again to "this family and these wonderful people" as he closed his argument. Under the circumstances, trial counsel invited the prosecutor's comments. Lastly, appellant's verbal offer to stipulate is not dispositive of his contentions because the stipulation was signed only after the jury returned its verdict. We overrule the third point of error.
Appellant's fourth point of error questions the trial court's overruling his objections to the probative value and "inherently prejudicial effect" of admitting two knives seized from his person at the time of his arrest. Texas law generally favors the admissibility of evidence which shows the circumstances surrounding the arrest of the accused, but evidence which is inherently prejudicial or irrelevant to any issue in the case is inadmissible. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim. App.1985) (en banc). The standard for reversible error resulting from admission of such evidence is whether the trial court clearly abused its discretion. Id.; cf., Tex. R.App.P. 81(b)(2) (to warrant reversal, error must contribute to either conviction or punishment). Although appellant used a gun and not a knife to murder Robert Dale, we hold the State was entitled to show, as a circumstance surrounding appellant's arrest, that the officers found the two knives on his person. Maddox, 682 S.W.2d at 565, citing Williams v. State, 535 S.W.2d 637, *507 640 (Tex.Crim.App.1976). Finding no error, we overrule the fourth point of error.
Appellant's fifth point of error challenges the trial court's overruling his objection to questions the prosecutor posed to Robbie Andrews, his alibi witness, while cross-examining Andrews to impeach his alibi testimony. The prosecutor first questioned him by showing that although he could remember details which took place up until about 11:15 p.m. of the night of the murder, he could not remember whether he and the appellant actually went hunting at 2:30 a.m. as they had allegedly planned. The following exchange took place as the prosecutor was attempting to ask Andrews why he had not come forward earlier with his testimony:
THE PROSECUTOR: You know, of course, that your friend has been in jail this whole time?
ANDREWS: Yes, ma'am, I do.
THE PROSECUTOR: And even though he's been in jail this whole time, you haven't seen fit to go forward
APPELLANT'S TRIAL COUNSEL: Your Honor, I would object to that question and the entire subject of that, please. Would we remove the jury please?
THE COURT: Take the jury out.
Appellant moved for a mistrial outside the presence of the jury. He now maintains the prosecutor's question was "highly prejudicial and violated his constitutional right to the presumption of innocence."
Although appellant complains of the reference to jail confinement, he did not object until the prosecutor's second question. This was not a timely objection to the jail reference. See Tex.R.App.P. 52(a) (objection must be "timely"); accord, Turner v. State, 719 S.W.2d 190, 194 (Tex. Crim.App.1986) (en banc) (same). But even if appellant had objected, the prosecutor's questions were within the permissibly broad scope of proper impeachment of an alibi witness for bias. See Koehler v. State, 679 S.W.2d 6, 9-10 (Tex.Crim.App. 1984) (en banc). Moreover, we find beyond a reasonable doubt that error, if any, in the trial court's ruling made no contribution to appellant's conviction or punishment because appellant himself had already testified to having been released from jail on bond the day after his arrest. Further, the trial court's charge included an instruction on the presumption of innocence which informed the jury that the fact of arrest, confinement, indictment or other charge does not give rise to an inference of guilt. We may presume the jury followed the court's instruction. E.g., Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1987) (opinion on court's own motion for rehearing, en banc). We overrule the fifth point of error.
We affirm the judgment of the trial court.
NOTES
[1] In Brooks v. State, 707 S.W.2d 703, 705 (Tex. App.Houston [1st Dist.] 1986, pet. ref'd), our sister court held that the showing required by Article 14.04 is the equivalent of "constitutional probable cause." Contra, Stanton v. State, 743 S.W.2d 233, 237 (Tex.Crim.App.1988) (en banc, McCormick, J., concurring). To meet constitutional muster, the facts of each case must show that at the moment of arrest, the facts and circumstances which are within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, would warrant a reasonable person's believing the accused has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964); E.g., Pyles, 755 S.W.2d at 109; Brown v. State, 481 S.W.2d 106, 110 (Tex.Crim.App.1972).
[2] Although the officers' investigation showed that appellant was shorter and heavier than Joseph Ernest Morelos, both men were under age thirty and had black hair and brown eyes. Accordingly, while the officers later learned that it was appellant whom they saw jogging and returning to the Gober street address late in the evening of Sunday, November 17, nothing beyond a "close" physical description tied him to the offense: the officers were not even certain that the jogger had come from the house they were watching.
[3] Although the record lacks testimony by the officers that they believed appellant would escape, this does not preclude our conclusion. See King, 631 S.W.2d at 497 n. 20.
[4] We refer to Schneckloth only for general principles since the Supreme Court expressly narrowed its decision to cases in which "the subject of the search is not in custody (emphasis added)." 412 U.S. at 248, 93 S.Ct. at 2059. Appellant was already under arrest when he executed the consent form.
[5] A peace officer need not inform the accused that he has a right to withhold his consent. Juarez, 758 S.W.2d at 781 n. 5.
[6] Appellant did not object during trial when Officer Swain denied any hesitancy in appellant's signing the consent form. Appellant also failed to object to Swain's testimony that appellant "indicated he didn't have anything to hide, that he was innocent" before signing the consent form. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568646/ | 10 So. 3d 613 (2008)
T.P.
v.
T.J.H.
2070656.
Court of Civil Appeals of Alabama.
December 12, 2008.
John T. Sutton, Tuscaloosa, for appellant.
*614 Submitted on appellant's brief only.
THOMAS, Judge.
T.J.H. ("the mother") and D.A.B. ("the father") were married in 1998, when the mother was three months pregnant. Immediately after the wedding, the father surrendered himself to law-enforcement authorities and began serving a 15-year sentence of imprisonment pursuant to his convictions for several felony offenses. K.A.B. ("the child") was born in 1999 while the father was incarcerated. In 2000, the DeKalb Circuit Court divorced the mother and father, awarded the mother custody of the child, ordered the father to pay child support when he was released from prison, and granted T.P., the child's paternal grandmother ("the grandmother"), the right to visit with the child on the third weekend of every month.
In 2001, the mother married R.H. ("the stepfather"). In 2006, the mother filed a petition in the Marshall Juvenile Court to terminate the father's parental rights, alleging that the father was incarcerated, that the father's conduct or condition had rendered him unable to care for the child, that the father had abandoned the child, and that the stepfather desired to adopt the child. The mother further alleged that her petition "shall not infringe on" the visitation rights that had been previously granted to the grandmotherwhom the mother had named, in addition to the father, as a "respondent" and an "essential party" pursuant to § 30-3-30, Ala.Code 1975.[1]
The father answered and denied the material allegations of the mother's petition. The juvenile court conducted a hearing on the petition on December 10, 2007, with the father being present and represented by counsel and the grandmother appearing pro se. On January 2, 2008, the juvenile court entered a judgment terminating the father's parental rights and providing that "[t]he paternal grandmother [T.P.] is allowed visitation with the minor child at the discretion of the mother, [T.J.H.]." On January 15, 2008, the grandmother filed a timely postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. That motion was denied by operation of law on January 29, 2008. See Rule 1(B), Ala. R. Juv. P. The juvenile court, however, set the grandmother's motion for a hearing on March 3, 2008, and, on a motion by the grandmother to continue the hearing, the juvenile court reset the hearing for March 31, 2008. Although the juvenile court purported to deny the grandmother's postjudgment motion on March 31, 2008, it did not have jurisdiction to enter that order. Id.; D.V.P. v. T.W.P., 905 So. 2d 853, 856 (Ala. Civ.App.2005). After the grandmother's postjudgment motion was denied by operation of law, the grandmother had 14 daysuntil February 12, 2008to file her notice of appeal.
The timely filing of a notice of appeal is jurisdictional. Holmes v. Powell, 363 So. 2d 760, 762 (Ala.1978); M.M. v. L.L., 989 So. 2d 528 (Ala.Civ.App.2007). The grandmother's April 11, 2008, notice of appeal is untimely; therefore we dismiss her appeal.
APPEAL DISMISSED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] Section 30-3-30 was repealed by Act No. 99-438, Ala. Acts 1999 (effective January 1, 2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568548/ | 10 So. 3d 634 (2009)
ESCAMBIA COUNTY SHERIFF'S DEPT.
v.
LEE.
No. 1D08-6324.
District Court of Appeal of Florida, First District.
June 16, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569033/ | 574 S.W.2d 100 (1978)
L. D. PRODAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 55016.
Court of Criminal Appeals of Texas, Panel No. 3.
December 6, 1978.
*101 Donald W. Rogers, Jr., Houston, court appointed on appeal, for appellant.
Carol S. Vance, Dist. Atty., William W. Burge and Larry P. Urquhart, Asst. Dist. Attys., Houston, for the State.
Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction of credit card abuse under V.T.C.A., Penal Code, Section 32.31(b)(4). Punishment, enhanced under the provisions of V.T.C.A., Penal Code, Section 12.42(d), was assessed at life.
Appellant's court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) by advancing contentions which counsel says might arguably support the appeal. See Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Currie v. State, 516 S.W.2d 684 (Tex.Cr. App.1974). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given an opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed.
Appellant urges two grounds of error which arguably support his appeal and the initial ground of error challenges the sufficiency of the evidence to support the conviction. Consequently, a brief recitation of the facts is necessary.
On May 26, 1976, Officer Shipley was directing traffic in downtown Houston when he observed appellant in the course of a traffic violation of walking against the wait light. As appellant approached him, Shipley noticed that appellant was walking *102 with a swaying motion; and, as appellant got closer, Shipley could smell alcohol on his body and breath and formed the opinion that appellant was intoxicated in public. Shipley arrested appellant for public intoxication and took him to Shipley's patrol car. Upon the arrival of other officers at the location, appellant was searched incident to his arrest and several credit cards belonging to John M. O'Sullivan were found in appellant's possession. No change, coins, bills or any identification was found on appellant's person with the exception of the credit cards.
Jeanne O'Sullivan testified that on May 25, 1976, her billfold was taken from her purse and that the billfold contained several credit cards, including the BankAmericard, made the subject of the instant indictment. Most of the credit cards were made out to her husband, John O'Sullivan. Jeanne O'Sullivan testified that she did not see anyone take her wallet but that she did not give anyone consent or permission to have her credit cards.
Herman Edwards, a service station employee, identified appellant as the person who on May 25, 1976, obtained the key and went to the restroom at the service station and immediately left the premises. Edwards' employer, Buddy Garner, testified that he noticed water running out of the bathroom of his service station and consequently he went into the bathroom and noticed water coming out of the commode. Upon inspection of the commode, Garner found a wallet in the toilet tank. Garner found identification in the wallet and called John O'Sullivan, who retrieved his wife's wallet the next day.
Another service station employee recalled giving the key to the restroom to appellant and that it was only around fifteen minutes after appellant had entered the restroom that the wallet was found in the commode in the restroom and that no one else had obtained the key to the restroom during the intervening fifteen minutes from the discovery of the wallet to the time when appellant entered the restroom.
Appellant argues that the evidence is insufficient to support the conviction because the State did not disprove appellant's explanation for the recently stolen property. He is relying upon the testimony on redirect examination of Officer Shipley for the evidence of appellant's explanation of the property since appellant did not testify and no witnesses testified in his behalf. Officer Shipley stated on redirect that appellant had told him that he was going to turn the credit cards in. Upon additional questioning, Shipley stated that appellant told him that he had found the cards.
Evidence that the defendant had the personal, unexplained possession of property recently stolen is sufficient to raise a presumption or inference of guilt and to sustain his conviction for theft of that property. See, e. g., Barnes v. United States, 412 U.S. 837, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973); Sirabella v. State, 492 S.W.2d 571 (Tex.Cr.App.1973); Smith v. State, 518 S.W.2d 823 (Tex.Cr.App.1975). However, evidence that a defendant had the personal possession of property recently stolen is not sufficient to sustain his conviction for theft of that property if when he was first directly or circumstantially called upon to explain his possession of the property he made a reasonable explanation which is not refuted, showing his honest acquisition of the property. Smith v. State, supra.
As in Smith, the appellant relies principally on the case of Huff v. State, 492 S.W.2d 532 (Tex.Cr.App.1973). In that case, although the appellant was shown to be in the possession of a recently stolen automobile, the State also proved the appellant's explanation was made at the time he was arrested that he purchased the automobile. The State did not refute or prove the falsity of such explanation, and the appellant corroborated his explanation of the purchase of the automobile through testimony of another witness who testified that she had furnished the appellant money to purchase the automobile and had received a receipt which in the process of moving she had misplaced.
*103 Assuming that the statement is an explanation of acquisition, it was for the jury to determine if appellant's exonerating statement was reasonable and probably true, and the jury was not required to accept the explanation offered by the appellant. See Grant v. State, 507 S.W.2d 732 (Tex.Cr.App.1974); Bryant v. State, 397 S.W.2d 445 (Tex.Cr.App.1966).
In the instant case the State refuted the statement that he was going to turn the cards in to the owners. Both John O'Sullivan and Jeanne O'Sullivan stated that they received no calls from anyone offering to turn the cards over to them, and the State showed circumstantially that appellant was in the restroom where Jeanne O'Sullivan's wallet was discarded. We conclude that the evidence is sufficient to sustain the conviction.
Appellant contends that the indictment in the instant case is fundamentally defective in that it fails to allege that the credit card in question was taken "without the effective consent of the owner."
The relevant portion of the indictment alleged that L. D. Prodan "did then and there unlawfully and knowingly steal a BankAmericard credit card owned by Jeanne O'Sullivan, hereafter styled the complainant, from the possession of the complainant with the intent to deprive the complainant of the property."
V.T.C.A., Penal Code, Section 32.31(b)(4), provides:
"A person commits an offense [credit card abuse] if ... he steals a credit card or, with knowledge that it has been stolen, receives a credit card with intent to use it, sell it, or to transfer it to a person other than the issuer of the cardholder ..."
Appellant filed no motion to quash the indictment; however, the indictment charges the first mode in which the offense of credit card abuse may be committed under Section 32.31(b)(4), supra. As in the case of Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976), the indictment was sufficient to put appellant and his attorney on notice of the crime (credit card abuse) for which he was charged. As we stated in Baldwin, it is not necessary to define theft in credit card abuse just as it is not necessary to define theft or set out all of its elements in a burglary case. Consequently, following the rationale of Baldwin, the fact that the State did not allege that the credit card was stolen "without the effective consent of the owner" does not render the indictment fundamentally defective.
Appellant's second ground of error is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568890/ | 772 S.W.2d 291 (1989)
The COUNTY OF EL PASO, Appellant,
v.
BOY'S CONCESSIONS, INC., and The Love Boat, Appellees.
No. 08-88-00333-CV.
Court of Appeals of Texas, El Paso.
June 7, 1989.
*292 Joe Lucas, County Atty., El Paso, for appellant.
William B. Hardie, Jr., Ken Slavin, Hardie, Hallmark, Sergent & Hardie, El Paso, for appellees.
Before FULLER, WOODARD and KOEHLER, JJ.
OPINION
FULLER, Justice.
In a lawsuit founded on breach of contract, the jury found that the County of El Paso, Texas, did, in fact, breach a contract and awarded damages to the concessionaire. We affirm.
The County of El Paso (County) owned a public park known as Ascarate Park. Within the park boundary was a golf course, picnic grounds, a lake and amusement area. The lawsuit involved a written agreement between the County of El Paso and Boy's Concessions, Inc., (Boy's) dated October 8, 1979, for the operation by Boy's of the boating, food and drink, golf cart, recreation and amusement concessions. The agreement was approved by the Commissioners' Court of El Paso on May 21, *293 1979. The agreement was for five years, commencing on April 1, 1979, and contained 2 five-year options, making a total of fifteen years, if the options were exercised. Appellant County became unhappy with the Appellee Boy's, and in 1982 gave notice of termination of the agreement. This lawsuit resulted in a jury trial in June, 1988. The Love Boat was a sub-concessionaire and also a plaintiff in the trial court, but is not a party to this appeal. The jury findings were: (1) there was an anticipatory breach of the agreement by the County; (2) the County's breach of its duty of good faith was done with conscious indifference; (3) the interference with the agreement was done by agent for the County and with intent to harm or injure the Appellee; (4) the County took property of the Appellee for public use without paying adequate compensation. The jury awarded Appellee actual damages of $94,293.50 for loss of investments and $15,000.00 for loss of profits. Exemplary damages of $75,000.00 were also awarded. The jury found that the breach by the County of the agreement did not proximately cause any damage to The Love Boat. The jury awarded Appellee attorney's fees of $68,400.00. The trial court disallowed the award of the exemplary damages and, therefore, entered judgment for Appellee Boy's for $109,293.50, plus attorney's fees of $68,400.00. Prejudgment interest on the actual damages was allowed at the rate of 10 percent per annum compounded daily from March 27, 1984, until the date of judgment and thereafter at the rate of 10 percent per annum until paid.
By Point of Error No. One, Appellant County asserts that the trial court erred in refusing to hear evidence on its motion for new trial.
This appears to be a gross misrepresentation of a point of error to say that the trial court REFUSED to hear evidence. The Appellant filed its seven page motion for new trial complaining of many matters: (1) error in denying its motion for summary judgment; (2) error in denying its motion for directed verdict; (3) no evidence to support the jury's answer to issue numbers one, two, three, six, seven, eight and eleven; (5) Appellant then complained of misconduct on the part of several jurors; (6) the excessiveness of the damages; and finally, (7) the award to Appellee of attorney's fees. The final prayer for relief merely stated: "WHEREFORE, COUNTY OF EL PASO, Defendant, requests that this Court set aside the judgment in this cause and order a new trial."
There is no showing that, after filing of the motion for new trial with the district clerk, the Appellant took any action to present the motion to the trial judge or to request a hearing on the motion. Insofar as the record shows the Appellant deliberately let the motion be overruled by operation of law without requesting a hearing. Appellant now is attempting to pass on its responsibility to the trial judge by asserting under Tex.R.Civ.P. 327(a) that a hearing was mandatory even though not requested. The terminology used by Appellant that "the trial denied a hearing" should be more appropriately stated that "the Appellant elected not to ask for a hearing." We find that the Appellant has waived any right to assert error based on the failure of the trial court to conduct a hearing on the motion for new trial. Innes v. Greiner, 449 S.W.2d 83, 85-86 (Tex.Civ. App.Amarillo 1969, no writ); Senn v. Strange, 366 S.W.2d 612, 614 (Tex.Civ.App. Amarillo 1963, no writ).
Point of Error No. One is overruled.
By Point of Error No. Two, Appellant asserts the trial court erred in entering judgment for attorney's fees because the County is exempt from payment of such fees.
Appellant contends that it is exempt from payment of attorney's fees under Tex.Civ.Prac. & Rem.Code Ann. sec. 38.001 (Vernon 1986). Appellant was required under Tex.R.Civ.P. 94 to affirmatively assert any matter constituting an avoidance or affirmative defense. Appellant having failed to do this has waived its defense. Davis v. City of San Antonio, 752 S.W.2d 518, 519 (Tex.1988). In addition, Appellant made no objection in the trial court to the evidence presented on attorney's fees. No *294 objections were made to the issues submitted to the jury as to attorney's fees. The failure to complain does not preserve error for appellate review. Tex.R.App.P. 52(a).
Point of Error No. Two is overruled.
By Cross-Point of Error No. Two, Appellee asserts the trial court erred in allowing Appellant to file its amended answer which raised governmental immunity as defense.
Rule 63 of the Tex.R.Civ.P. provides that "any amendment [to the pleadings] offered for filing within seven days of the date of trial or thereafter ... shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party."
Rule 66 of the Tex.R.Civ.P. provides that "if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits."
The Appellant did, on June 6, 1988, file its amended answer to the Appellee's second amended petition. This occurred with consent of the court and happened the day the jury was selected, but before evidence commenced on June 7. The trial court concluded that the plea of governmental immunity did not come as a surprise to the Appellee as it was not a fact issue but a matter of law. The trial court has discretion under Rules 63 and 66 of the Tex.R.Civ.P., whether to allow amendments to pleadings. This discretion will not be disturbed on appeal, unless the complaining party (Appellee) makes a clear showing of an abuse of discretion. Roeber v. DuBose, 510 S.W.2d 126, 128 (Tex.Civ.App.Corpus Christi 1974, no writ); Tuck v. Tuck, 509 S.W.2d 656, 658 (Tex.Civ.App.Austin 1974, writ ref'd n.r.e.). In this case, Appellee has failed to sustain his burden that by allowing the amended pleading it operated as a surprise and to his prejudice. Swinney v. Winters, 532 S.W.2d 396, 400 (Tex. Civ.App.San Antonio 1975, writ ref'd n.r. e.).
Cross-Point of Error No. Two is overruled.
Cross-Point of Error No. One asserts the trial court erred in failing to grant Appellee's motion for judgment as to exemplary damages awarded by the jury due to Appellant's waiver of its defense of governmental immunity.
Appellee urges waiver because of the late filing of the amended answer (Cross-Point No. Two) and, in addition, urges waiver because of the failure of Appellant to object to any of the tort or exemplary damage issues that were submitted.
Rule 279 of the Tex.R.Civ.P. requires the submission of issues on all defensive grounds, but waiver does not result from the failure to submit these issues if the defense is established as a matter of law, as it was in this case. City of Dallas v. Moreau, 718 S.W.2d 776, 780 (Tex.App. Corpus Christi 1986, no writ).
Cross-Point of Error No. One is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568844/ | 772 S.W.2d 596 (1989)
299 Ark. 373
James Lee OWENS, Petitioner,
v.
H.A. TAYLOR, Judge, Respondent.
No. 88-322.
Supreme Court of Arkansas.
July 3, 1989.
Griffin J. Stockley, Little Rock, for petitioner.
J. Denahmmcclendon, Asst. Atty. Gen., Little Rock, for respondent.
HAYS, Justice.
James Owens seeks a writ of prohibition against the Honorable H.A. Taylor, Circuit Judge of Jefferson County, Arkansas, asserting that the circuit court has no subject matter jurisdiction to impose conditions on Owens's release from the Arkansas State Hospital. We ordered a temporary stay in the proceedings below so that briefs could be submitted. Having considered the arguments, we grant the writ.
Owens was charged on March 23, 1987, with second degree battery. While resisting arrest he drew a straight razor from his shoe and in the struggle with the officers Owens sustained several cuts, none severe.
On the day after his arrest, Owens was sent to the state hospital for evaluation and on April 20, 1987, the circuit court found, based on a report from the hospital, that Owens lacked the capacity to stand trial. He was then committed for treatment.
The record is entirely silent as to the events of the next thirteen months, but on May 25, 1988, Dr. Wanda Stephens, Staff Psychiatrist, wrote the circuit judge expressing the position of the hospital, i.e., that unless an order of civil commitment were entered by a probate court, circuit court jurisdiction over James Owens ended after one year.
Next, Dr. Stephens wrote in September to the Mental Health Magistrate, Ms. Elizabeth McCord, to state that Owens was fit to proceed and, with further treatment, should be able to cooperate with his attorney by January of 1989.
*597 On November 9, 1988, the circuit court, citing a November 1, 1988, report from another staff psychiatrist, Dr. James McDaniel, stating that Owens lacked the capacity to conform his conduct to the requirements of the law at the time of the alleged offense, declared that Owens should be acquitted by reason of insanity pursuant to the provisions of Ark.Code Ann. § 5-2-315 (1987).[1]
On December 1, 1988, Dr. Stephens again wrote the circuit judge to advise that Owens was no longer regarded as a threat to himself or to others and would be released in approximately ten days. On that same day, the administrator of Rogers Hall at the hospital wrote to the circuit judge to request conditional release of Owens and on December 7 the prosecuting attorney petitioned for Owens's conditional release. A hearing was scheduled on that petition for January and at that point this court ordered a temporary stay in those proceedings.
The state maintains that because Owens was released unconditionally by the state hospital on January 11, 1989, any justiciable issue is rendered moot. General Publishing Co., Inc. v. Erxleben, 283 Ark. 136, 671 S.W.2d 182 (1984). Ordinarily, mootness resolves the controversy and renders a decision unnecessary. But that choice is ours to make and where considerations of public interest or prevention of future litigation are present, we may elect to settle an issue, even though moot. Cummings v. Washington County Election Commission, 291 Ark. 354, 724 S.W.2d 486 (1987); Robinson v. Arkansas Game & Fish Commission, 263 Ark. 462, 565 S.W.2d 433 (1978). We find that course preferable in this instance based in part on Owens's argument that if we dismiss the petition as moot, Owens will be taken into custody and the proceedings still pending in Jefferson Circuit will be resumed.
The issue presented to us is whether the Jefferson Circuit Court had jurisdiction in January, 1989, to impose conditions on Owens's release from the state hospital some nineteen months after he was found incompetent to stand trial and committed to the state hospital for treatment, and some two months after the circuit court had found him not guilty of second degree battery by reason of insanity. The answer clearly is no. See Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981); Stoner v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980); and Baker v. Young, 121 Ark. 537, 182 S.W. 279 (1915).
We do not decide whether circuit court jurisdiction ends at some specific point, simply by lapse of time; it is enough to note that Owens is no longer in custody, that he was acquitted by order of the circuit court dated November 9, 1988, and nineteen months had elapsed from his original commitment. That being so, it is plain that circuit court had no jurisdiction in January, 1989, to impose conditions on Owens's release.
Writ of prohibition granted.
NOTES
[1] Dr. McDaniel's report is not included in the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568857/ | 772 S.W.2d 205 (1989)
Irma L. POINDEXTER, Appellant,
v.
Leroy P. FOSTER, M.D., and Gerald Lange, M.D., Appellees.
No. 09 88 107 CV.
Court of Appeals of Texas, Beaumont.
May 4, 1989.
Rehearing Denied May 24, 1989.
*206 Bruce W. Cobb, Beaumont, for appellant.
Michael L. Baker, Curry L. Cooksey, Richard L. Scheer, Beaumont, for appellees.
OPINION
BROOKSHIRE, Justice.
Appeal from the district court's order granting two motions for summary judgments in alleged medical malpractice cases. The movants for the summary judgments were Dr. Foster and Dr. Lange.
The Appellant sustained an injury to her right leg above the ankle by accidentally striking her leg on a metal bed railing. She said her family physician was called. She later was admitted to the emergency room of the Beaumont Medical and Surgical Hospital. There, she waited for her family physician, Dr. Lange. She swore that Dr. Lange was supposed to meet her at the emergency room. Irma's affidavit is long and detailed. The leg wound was bleeding rather profusely. She had been in the emergency room for an hour and a half. Hence, the attending emergency room physician, Dr. Leroy Foster, treated the wound. After this emergency room treatment, Dr. Foster referred Mrs. Poindexter to her family physician for all further treatment. Mrs. Poindexter attempted, again, to contact her regular family physician but that physician, Dr. Lange, did not return her telephone calls, Poindexter swore. Thereafter, Mrs. Poindexter developed complications from her wound and was hospitalized on at least two later occasions. The first complication occurred on or about February 7, 1984, when a hospital nurse opened Mrs. Poindexter's wound a second time even though accidentally. This was done when the nurse removed the stitches. Following that occasion, Mrs. Poindexter spent about three days in the hospital.
*207 Another hospitalization occurred on February 24, 1984, when a Dr. Washburn, a specialist, treated the wound to prevent further infection. On that second hospitalization, Mrs. Poindexter spent another three days in the hospital. A skin graft was performed by Dr. Washburn, a specialist in the branch of medicine known as plastic surgery. She was released 17 days later. Mrs. Poindexter's position was that the wound had not properly healed before she saw Dr. Washburn. Later, in August of 1984, being approximately six months after the original striking of the leg against the metal part of the bed, Mrs. Poindexter went to a dermatologist, Dr. Charles Crim. He put a special medicated cast on her leg.
The Appellant was also instructed to seek out a Dr. Walker who took an x-ray revealing a foreign object of approximately three millimeters in length in Mrs. Poindexter's leg. Mrs. Poindexter states that she cannot walk any appreciable distance without suffering a certain amount of pain and swelling in the affected leg. Thereafter, Mrs. Poindexter brought suit against only Dr. Lange and Dr. Foster for negligence in the treatment of her leg. Both of these doctors moved for summary judgment. We are required to treat as true the Appellant's affidavit in this appeal, whether the affidavit is correct or not.
Appellant's point of error is the trial court erred in granting the summary judgments in favor of both of the Appellees, Dr. Foster and Dr. Lange. Regarding Mrs. Poindexter's position against Dr. Foster, we note that Mrs. Poindexter, upon entering the emergency room, had intended to seek the services of Dr. Lange who was her family physician. We view the position of Dr. Foster as being simply an emergency room physician, and that, according to the ethics and customs of the medical profession and fraternity, he turned the case over completely to her regular family physician, Dr. Lange. Dr. Foster treated Mrs. Poindexter only after Dr. Lange failed to come to the emergency room, according to Poindexter's affidavit. After Mrs. Poindexter was instructed to contact Dr. Lange to take over the case, she did not see Dr. Foster again. Dr. Lange did take over the case medically and saw Mrs. Poindexter on two later occasions.
Dr. Wesley Washburn, a plastic surgeon, found that there had been a formation of an ulcer on the Appellant's leg rather than an infection. Dr. Washburn testified that he was familiar with the standards of the care of wounds in Jefferson County in 1984. He also stated that he was familiar with Mrs. Poindexter's accident and the subsequent medical care that she had received for that particular wound. In Dr. Washburn's deposition he unequivocally stated that he did not know what Dr. Lange did by way of treatment of Mrs. Poindexter. Dr. Washburn further unequivocally testified that, based on his expertise, experience and observation, he did not feel that there was any act or omission on the part of Dr. Foster that caused or contributed in any way to the delay of the healing of Mrs. Poindexter's leg wound.
The charges of negligence that the Appellant herein leveled against Dr. Foster's care and treatment seem to be that Dr. Foster should have administered a tetanus shot, that he allegedly allowed the wound to become infected, and that he failed to x-ray the wound. Dr. Washburn's testimony absolutely negated these charges. Furthermore, it is commonly understood medical ethics and practice that when an emergency room physician turns over a case to a regular family treating physician, as was done here, that the emergency room physician's duty toward the patient ceases. In this case the family physician undertook the management of the medical problems of Mrs. Poindexter.
The Appellant responded with an affidavit in which she was the affiant. It contained her sworn, factual observations in depth. Appellant failed to present any expert medical testimony to contravene the unequivocal testimony of the plastic surgeon. The plastic surgeon, Dr. Wesley W. Washburn, was certainly very well qualified to express an expert medical opinion as he had been a medical doctor practicing his *208 specialty in the Beaumont area continuously for about 35 years.
Dr. Washburn swore that Foster's action did not cause the leg wound to become infected, as Poindexter alleged. The uncontroverted clear, definite, expert medical testimony of Dr. Washburn was that he (Washburn) was treating a certain complication of the original injury, which was described as a three-point laceration with weak points, and that Dr. Foster simply did nothing to contribute to the inability of the leg wound to heal. Dr. Washburn's opinion was that, as applicable to Dr. Foster, the wound was not healing because Mrs. Poindexter was scratching it or interfering with it and she was not allowing it to heal normally.
This opinion was based on the proof of later facts that, once the area had been secluded with a Unna boot and, therefore, protected from scratching, the wound did heal. The Unna boot, according to Dr. Washburn, was entirely effective because, after the Unna boot was applied to the area of the wound, the wound (being an ulcer not an infection), did become totally healed within a reasonable period of several weeks. When Dr. Washburn saw Mrs. Poindexter in the latter part of September of 1984, the wound or ulcer was totally healed.
Dr. Washburn further testified that the foreign body found on x-ray did not have any connection with the delay in healing of the wound. Dr. Washburn testified, unequivocally, that the wound in question was not an infected wound which obviously would be red, inflamed and swollen and would be a type of open wound from which an expert could culture bugs from the same. Washburn swore that Mrs. Poindexter sustained a contaminated wound and that the difference between a contaminated wound and an infected wound is grossly obvious to the trained eye in that the infected wound would be red, swollen and inflamed. Simply stated, Mrs. Poindexter did not file, in her response, any appropriate affidavit containing an expert medical testimony that contradicted or, in anywise, contravened the relevant, positive deposition testimony of Dr. Washburn.
In fact, the only affidavit that she gave, by way of a response, was her own affidavit in which she swore that her further hospitalization was necessitated by her wound remaining essentially unattended for so long a time. Again, we are required to accept her affidavit as correct in this peculiar summary judgment proceeding. She further swore that, after she was released from the emergency room, she tried to reach Dr. Lange for two days but he did not return her telephone calls. A fair and balanced reading of Mrs. Poindexter's affidavit results in the logical conclusion that Dr. Lange, for whatever reasons, did not return her phone calls. Mrs. Poindexter swore that when Dr. Lange did finally see her in the hospital he stated to her that he did not have the time to take the stitches out of her leg that day, but he would do so on the following Monday. That hospital visit took place on a Friday. Although Dr. Lange did not remove the stitches the next Monday, the nurse did.
In motion for summary judgment practice, in order for a defendant to be entitled to a summary judgment, that defendant must disprove at least one essential element of the plaintiff's cause of action. Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.Corpus Christi 1988, no writ); Luna v. Daniel Intern. Corp., 683 S.W.2d 800 (Tex.App.Corpus Christi 1984, no writ). The ultimate question, here, then, is whether there is competent summary judgment evidence from Mrs. Poindexter, in view of the expert testimony of Dr. Washburn, that establishes a genuine issue of fact existing as to a necessary element of the Appellant's alleged medical malpractice cause of action.
The modern rule has been established that, in regard to those alleged acts of medical malpractice that relate to the testing, diagnosis and treatment by a medical doctor, the affidavit of the Appellant, herself, a lay person, is incompetent evidence and cannot controvert the sworn testimony of a medical expert or a medical specialist. Gandara, supra. See Hart v. *209 Van Zandt, 399 S.W.2d 791 (Tex.1965); Duncan v. Horning, 587 S.W.2d 471 (Tex. Civ.App.Dallas 1979, no writ); TEX.R. CIV.P. 166a(e). Mrs. Poindexter conceded she was unable to obtain expert testimony to controvert Dr. Washburn.
Upon a careful re-reading of Dr. Washburn's deposition, we affirm the granting of the motion for summary judgment in favor of Dr. Foster and Dr. Lange. We deem it appropriate and paramount to stress that the Plaintiff's petition for relief is based solely on negligent care in the treatment rendered to Mrs. Poindexter. We conclude that the Appellees have, by competent, expert medical testimony, negated, under the proper summary judgment practice, the alleged negligent care. Furthermore, the Appellees have negated the proximate cause fact issue as to any damages sustained by the Appellant. The Appellant has totally failed to respond with competent, expert medical testimony to preserve the proximate cause issue in her favor.
In summary, the Defendants below were entitled to prevail on their motions for summary judgment if they established as a matter of law that there existed no genuine issue of material fact in relationship to one or more of the essential elements of the Plaintiff's cause of action. See Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). The Defendants below successfully negated two of the elements of the Plaintiff's alleged negligent medical malpractice cause of action: firstly, a breach of the standard of care and, secondly, proximate causation. Since the Defendants had negated these two necessary elements of the Plaintiff's cause of action, then it was incumbent upon the Plaintiff to produce competent, expert medical testimony that would, in turn, raise issues of fact with regard to negligence and proximate cause; this the Plaintiff failed to do. See Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ.App.Dallas 1979, no writ); Gandara v. Novasad, 752 S.W.2d 740 (Tex.App.Corpus Christi 1988, no writ); Shook v. Herman, 759 S.W.2d 743 (Tex.App.Dallas 1988, no writ).
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917315/ | 993 A.2d 989 (2010)
120 Conn.App. 768
STATE of Connecticut
v.
William TOCCO.
No. 30287.
Appellate Court of Connecticut.
Argued October 23, 2009.
Decided May 4, 2010.
*992 Kevin Murray Smith, New Haven, with whom, on the brief, was Norman A. Pattis, Bethany, for the appellant (defendant).
Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).
BISHOP, HARPER and WEST, Js.
HARPER, J.
The defendant, William Tocco, appeals from the judgment of conviction, rendered following a court trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2) and two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1).[1] The defendant claims that the court improperly (1) accepted his waiver of his right to a jury trial, (2) admitted certain constancy of accusation testimony and (3) admitted certain evidence of uncharged misconduct by the defendant. We affirm the judgment of the trial court.
The state presented evidence that, in 1998, the male victim,[2] then aged eleven, *993 joined a Connecticut fife and drum corps. At times relevant, the corps of which the victim was a member consisted of approximately fifteen to twenty members of various ages, from children to adults. During fall, winter and spring, members of the corps attended regularly scheduled practice sessions, typically held at a firehouse, to refine their music and marching skills. During the summer, the corps participated in gatherings of various fife and drum corps, known as musters. At musters, participating corps exhibited their music and marching skills for other corps. Musters typically began on Fridays and ended on Sundays, and it was common for corps members to camp in tents at these outdoor events.
The state presented evidence that, upon joining the corps, the victim met the defendant, an experienced corps member, who was approximately twenty-one years of age. The victim testified that the defendant befriended him, customarily provided him with transportation to and from corps events and, with the permission of the victim's mother, acted as his chaperone at several musters. The victim testified that he told the defendant that he loved him in late 1998. After this revelation, the victim testified, his relationship with the defendant became sexual in nature. According to the victim, between, approximately, 1999 and 2001, he and the defendant routinely engaged in sexual activities in the defendant's automobile, which was parked behind the firehouse, following corps practice sessions. Also, the victim testified that he and the defendant engaged in sexual activities in the defendant's tent at musters. The victim testified that he and the defendant kissed and that he touched the defendant's private parts. The victim testified, further, that he performed fellatio on the defendant routinely and that, less routinely, the defendant performed fellatio on him. The victim estimated that, during their sexual relationship between 1999 and 2001, he and the defendant engaged in oral sex between 250 to 300 times and that he and the defendant engaged in anal sex seventy-five times.
Following a trial to the court, the court rendered an oral decision setting forth its findings of fact. The court found that the victim had testified credibly and that the state had satisfied its burden of proof as to counts two through seven of its information. In counts two and three, the state alleged that the defendant committed sexual assault in the first degree in that, between September, 1999, and December, 1999, he had the victim, who was under thirteen years of age, perform fellatio on him at the firehouse. In counts four and five, the state alleged that the defendant committed sexual assault in the first degree in that, between January, 2000, and September, 2000, he had the victim, who was under thirteen years of age, perform fellatio on him at the firehouse. In counts six and seven, the state alleged that the defendant committed sexual assault in the second degree in that, between October, 2000, and March, 2001, he had the victim, who was older than thirteen years of age but less than sixteen years of age, perform fellatio on him at the firehouse. The court found that the defendant, who testified at trial that he had not engaged in any sexual activity with the victim, had an ample opportunity to have committed the offenses as alleged and that he had not testified credibly. Additional facts will be set forth as necessary in the context of the claims raised on appeal.
*994 I
First, the defendant claims that the court improperly accepted his waiver of his right to a jury trial. The defendant argues that the court failed to conduct an inquiry adequate to determine whether his waiver was knowing, intelligent and voluntary. The defendant also argues that the court misstated relevant legal principles in addressing him concerning his waiver. We disagree.
The following additional facts underlie the defendant's claim. At the time of the defendant's arraignment on March 22, 2007, the defendant elected to exercise his right to a trial by jury. On May 15, 2008, the defendant appeared in court with counsel, at which time the following colloquy occurred:
"[Defense Counsel]: After conferencing with my client and discussing the matter with his family, at this time my client's authorized me to make an application to this court to elect to go forward with a judge trial only and waive the jury trial.
"The Court: All right. And I'm going to canvass your client with regard to that waiver
[Defense Counsel]: I've informed him of that.
"The Court:which is a permanent waiver. All right....
"[The Defendant]: Yes, sir.
"The Court: How are you, sir?
"[The Defendant]: Good, sir.
"The Court: You've had some ongoing discussions, apparently, with [defense counsel] about your case. Correct?
"[The Defendant]: Yes, sir.
"The Court: And one of those discussions has been that you originally elected a jury trial. And you have now had these discussions with, I think, [defense counsel], other counsel, and such, and the conclusion that you've all come to together is that you wish to withdraw your case from a jury trial and elect to have your case heard only in front of the court. In other words, a court trial.
"[The Defendant]: Yes, sir.
"The Court: All right. It'll be in front of myself. Now, that's what you want to do?
"[The Defendant]: Yes, sir.
"The Court: Are you sure?
"[The Defendant]: Yes.
"The Court: And I'll tell you why I ask that question. Because once you elect a court trial you can never change your mind again and say, you know what, I've rethought my position, I want to go back and have a jury trial. Once you tell the court, I want a court trial, the court asks you the relevant questions that I'm asking you right now, I accept your election to have a court trial rather than a jury trial, there's no turning back at that point. In other words, [defense counsel] can't call me up tomorrow and say, [the defendant] called me up, he rethought the position, we want to go forward with that jury trial. It's over at that point. It's a court trial and a court trial only. This is something that you cannot change your mind once it has been made. Do you understand that?
"[The Defendant]: Yes, sir.
"The Court: I know you heard that from your lawyers before you heard it from me, but now that you've heard it from me, have you had enough time to discuss that issue with your lawyers?
"[The Defendant]: Yes.
"The Court: Are you satisfied with the advice that they've given you with regard to this waiver of a jury trial and a court trial?
*995 "[The Defendant]: Yes, sir.
"The Court: And are you under the influence of any alcohol, drugs or medications at all today that might impair your judgment to make that decision?
"[The Defendant]: No, sir.
"The Court: All right. And you're sure this is what you want to do?
"[The Defendant]: Yes, sir.
"The Court: And I've indicated to both sides that if I accept your election to a court trial, that we will begin hearing evidence on this case at 10 o'clock on May 29. Is that the agreed upon time, gentlemen?"
Defense counsel represented that he was prepared for the court to commence the trial on May 29, 2008, or sooner. After discussing the trial schedule with defense counsel, the court stated, "Let's finish the canvass, and then we'll get to the dates." The following colloquy then occurred:
"The Court: All right. So ...
"[The Defendant]: Yes, sir.
"The Court: Do you want me to accept your election to the court?
"[The Defendant]: Yes I do, sir.
"The Court: And you have no additional questions about it? You are positive?
"[The Defendant]: Yes.
"The Court: Okay. Excellent. Your election to waive a jury trial and accept a court trial is granted."
The presentation of evidence in the defendant's trial commenced on May 29, 2008. Prior to the presentation of evidence, the court stated to defense counsel: "And obviously [the defendant] has elected a court trial, and that election continues." Defense counsel replied, "That is correct, Your Honor." At no time following the defendant's canvass did the defendant, either personally or through his attorney, attempt to revisit the waiver of his right to a trial by jury or request that the defendant proceed to trial before a jury.
The defendant raises the present claim for the first time on appeal and has affirmatively requested review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant's claim is reviewable insofar as the record sets forth the court's canvass, the defendant's responses to the court's canvass and the court's acceptance of the defendant's waiver of his right to a trial by jury. Additionally, the claim is constitutional in nature because the defendant asserts that the court, by accepting his waiver, violated his fundamental right to a jury trial, afforded him by the state and federal constitutions.[3] See State v. Ouellette, 271 Conn. 740, 748 n. 14, 859 A.2d 907 (2004) (affording Golding review to unpreserved claim that trial court improperly failed to ascertain waiver of right to jury trial knowing, intelligent and voluntary); State v. Mauro, 111 Conn.App. 368, 372, 958 A.2d 1262 (2008) (same). Our focus, therefore, turns to the third prong of Golding, under which the defendant bears the burden of demonstrating that "the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial...." State v. Golding, supra, at 240, 567 A.2d 823.
*996 First, we set forth some relevant legal principles and our standard of review. "The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary.... Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right.... This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record.... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.... When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book.... Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial.... Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused.... In examining the record, moreover, we will indulge every reasonable presumption against waiver of fundamental constitutional rights and ... [will] not presume acquiescence in the loss of fundamental rights.... In addition, a waiver of a fundamental constitutional right is not to be presumed from a silent record." (Citations omitted; internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 775-77, 955 A.2d 1 (2008).
In Gore, our Supreme Court addressed the requirements for a knowing, intelligent and voluntary waiver of the right to a trial by jury.[4] The court held that in determining whether a court has properly *997 accepted a waiver of the right, "there must be some affirmative indication from the accused personally, on the record, that he or she has decided to waive the fundamental right to a jury trial because the defendant's silence is too ambiguous to permit the inference that he or she has waived such a fundamental right.... A defendant's personal assertion of a waiver of the right to a jury trial is not conclusive evidence that the waiver was made knowingly, intelligently and voluntarily, but its absence is a fatal blow to the validity of a waiver." (Citations omitted.) Id., at 781-82, 955 A.2d 1.
In the present case, it is undisputed that such condition precedent, in terms of a constitutionally valid waiver, was satisfied in that the defendant addressed the court personally and stated on the record that he wanted to proceed to trial before the court, not a jury. This being the case, we must examine the totality of the circumstances, which include the statements made by the defendant to the court, to determine if the defendant's waiver was knowingly, intelligently and voluntarily made and, thus, was properly accepted by the court.
"In addition to determining that a defendant who seeks to [waive a constitutional right] is competent, a trial court must satisfy itself that the waiver ... is knowing and voluntary.... [I]n this sense, there is a heightened standard for [the waiver of a constitutional right], but it is not a heightened standard of competence.... Moreover, it is the same standard that is applicable to all criminal defendants who have been found competent to stand trial. Under this standard, [t]he determination of whether there has been an intelligent waiver of [a constitutional right] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." (Citations omitted; internal quotation marks omitted.) State v. Ouellette, supra, 271 Conn. at 753-54, 859 A.2d 907.
Our review of the totality of the circumstances as they appear in the record reveals that the issue of the defendant's competency was not raised in any manner. Likewise, it is not raised as an issue in this appeal. The record reflects that the defendant was represented by counsel, Pat Bonanno, during the entirety of his trial. The record of the trial does not portray that the defendant did not communicate effectively with his attorney during the trial. To the contrary, during the court's canvass, the defendant represented to the court that he had discussed his decision to waive his right to a jury trial with his attorney and that he was satisfied with the advice afforded him with regard to that issue. The fact that the defendant was represented by counsel and that he conferred with counsel concerning the right to waive his right to a jury trial supports a conclusion that his waiver was constitutionally sound. See, e.g., State v. Smith, 100 Conn.App. 313, 324, 917 A.2d 1017, cert. denied, 282 Conn. 920, 925 A.2d 1102 (2007).
In considering the background, conduct and experience of the defendant, we look to the record of the trial and, in particular, the court's canvass of the defendant concerning his waiver. The record reflects that the defendant responded to the court's inquiries in an intelligent and courteous manner. During the court's colloquy with the defendant, the defendant represented that he was not under the influence of alcohol, drugs or medications, that he carefully had considered the issue and that he was certain of his decision. During his trial testimony, the defendant testified as to his background and life experience. *998 The defendant testified that he had attended college and a police academy. The defendant testified, as well, that he had been gainfully employed as a teacher's assistant and a New York City police officer. The defendant's level of education, and particularly his experience in law enforcement, strongly supports a determination that the defendant would have had a basic understanding of the criminal justice system, including the fact that he had a right to proceed to trial before a jury.
Finally, we look to the court's statements to the defendant during the canvass. The court unambiguously stated to the defendant that the purpose of his attorney's motion was to remove the defendant's case from the jury trial list so that it may be heard by the court. The court stated to the defendant that his decision to waive his right to a jury trial was a permanent one, and questioned the defendant as to whether he had consulted with his attorney with regard to the decision and whether he was "positive" that he wanted to proceed without a jury present. The court's statements to the defendant left no doubt as to the subject of the waiver and the implications of the waiver. The defendant's immediate and unequivocal replies to the court's inquiries reflected his strong desire to proceed to trial before the court, not a jury.
On the basis of the totality of the circumstances, we conclude that the record establishes that the defendant knowingly, intelligently and voluntarily waived his right to a jury trial. As noted previously; see footnote 4 of this opinion; the procedural rule announced in Gore did not apply to the defendant's trial; the trial court was under no affirmative obligation to canvass the defendant concerning his waiver. The court, however, did conduct a canvass of the defendant that afforded it a basis on which to determine whether the defendant understood his right to proceed to trial before a jury, understood that he had the option of waiving that right and voluntarily had chosen to forgo that right in favor of a court trial. Thereafter, the court granted the defendant's request.[5] We reject the defendant's argument that the court did not conduct an appropriate inquiry prior to accepting the defendant's waiver.
Apart from arguing that the court's canvass was not sufficiently probative, the defendant also argues that the court improperly accepted his waiver after having misstated important legal principles related to the right to a jury trial. Specifically, the defendant observes that the court repeatedly emphasized that, once the court accepted his waiver, he could not thereafter change his mind and elect to proceed to a trial before a jury. The defendant *999 argues that the statements of this nature were legally improper in that they contradict General Statutes § 54-82b (b)[6] and Practice Book § 42-1.[7]
The defendant does not demonstrate how this aspect of his claim is related to the validity of his waiver because he has not meaningfully demonstrated that the court's statements misled him as to his right to a jury trial, his authority to waive his right to a jury trial and his decision to forgo that right. Any such issues would be relevant to a constitutional analysis of the waiver that was made and accepted by the court. Instead, the defendant argues that the court's statements misled him as to his right to challenge the validity of his waiver at some later time. Yet, the record does not reflect that the defendant, in fact, attempted to challenge the validity of his waiver at any time prior to filing this appeal. The defendant asserts that the court's statements concerning the finality of his waiver "likely led to further, unintentional waivers." The defendant explains: "For example, in reliance upon the court's insistence that the waiver was absolutely final, the defendant logically would have refrained from any further investigation into the right and the statutory vehicles available to him to remedy the waiver." We reject the defendant's assertions that the court's statements affected the validity of his waiver.
We agree with the defendant that § 54-82b (b) afforded him a statutory right to challenge the validity of his waiver on the ground that he was "not fully cognizant of his rights" or that "the proper administration of justice require[d]" that the judgment obtained be set aside and the case be set for a jury trial. General Statutes § 54-82b (b). We disagree, however, with the defendant's interpretation of the court's statements. In discussing the finality of the defendant's decision to waive his right to a jury trial, the court repeatedly emphasized that the defendant could not change his mind simply because he had rethought his position. A reasonable interpretation of the court's statements is that the court conveyed to the defendant that the election to proceed before the court, insofar as it was a tactical decision that the defendant had carefully considered, was final; the court made clear that it would not permit the defendant to change his election due to a change in defense strategy once the court had accepted the waiver. The court did not state that the matter could not be revisited at a later time if the defendant did not understand his right to a jury trial, did not understand that he possessed the authority to waive his right or had waived his right involuntarily. For these reasons, the defendant has not demonstrated that the court's statements contradicted § 54-82b (b) *1000 or were legally inaccurate. Apart from concluding that the statements were not legally inaccurate, we also are not persuaded that the court's statements call into doubt the nature of and, thus, the constitutionality of, the defendant's waiver.
To the extent that the defendant argues that the court's comments concerning the finality of his decision contradicted Practice Book § 42-1, the defendant stands on even weaker footing. The record reflects that, at the time the defendant was put to plea, he elected a trial by a jury. This is not a case, therefore, in which a defendant attempted to elect a jury trial after having elected a trial by the court. Thus, we disagree that the court's comments to the defendant violated the letter or spirit of Practice Book § 42-1 or, more importantly, that they cast doubt on whether the defendant understood that he had a right to a trial by jury, whether the defendant understood that it was his option to waive his right to a trial by jury or whether the defendant's election to forgo that right was voluntary.
For the foregoing reasons, we reject the arguments raised by the defendant in connection with this claim. The defendant has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial; the claim fails under Golding's third prong.
II
Next, the defendant claims that the court improperly admitted certain constancy of accusation testimony. We decline to review this unpreserved evidentiary claim.
In his principal brief, the defendant states that the court improperly "admitted constancy of accusation testimony of the details of the victim's numerous, post-official complaint disclosures, from five different witnesses, resulting in harmful error that substantially affected the verdict." The defendant raises several arguments in support of his challenge to the admission of this testimony. As a preliminary matter, the defendant invites this court to "reexamine" the constancy of accusation doctrine and to either curtail or abandon it. Next, the defendant argues that the court failed to undertake an analysis on the record as to whether the prejudicial nature of this testimony outweighed its probative value. Additionally, the defendant argues that the court improperly admitted the testimony under the constancy of accusation doctrine because the alleged victim in this case was a male, the testimony went beyond the types of corroborative facts permitted under the constancy of accusation doctrine and the testimony related to complaints made by the victim after he had reported the sexual abuse to an employee of the department of children and families while he was undergoing impatient psychiatric treatment in 2005.
The defendant acknowledges that he did not raise any aspect of this claim before the trial court and, thus, did not preserve the claim for appellate review. He affirmatively requests review of his claim under the Golding doctrine or, in the alternative, asks us to review the claim for plain error. See Practice Book § 60-5.
The defendant has not adequately briefed his claim. Our rules of practice require an appellant to set forth the specific facts of the case that bear on any issue raised in the appeal. See generally Practice Book § 67-4(c) and (d). Neither the fact section of the defendant's principal brief nor the portion of his brief related to this claim identifies with any degree of specificity the evidence that is at issue.[8]*1001 The defendant refers generally to the testimony of "five different witnesses," but does not identify these witnesses or, more importantly, the specific portions of their testimony that he challenges for the first time on appeal. The defendant's analysis of this claim is not tethered to any specific facts or evidence, rather, it consists of criticisms of the constancy of accusation doctrine and reasons why it should not have had any application in this case. It is not apparent from our review of the record that the state called any witness as a constancy of accusation witness or that the court expressly admitted any evidence in reliance on the constancy of accusation doctrine. Furthermore, this court is not an advocate for any party; it would be beyond the proper role of this court in resolving the issues raised on appeal to sift through the voluminous record before us and speculate as to the specific evidence at issue in the present claim. See, e.g., Roberto v. Honeywell, Inc., 43 Conn.App. 161, 163, 681 A.2d 1011, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996), and cases cited therein.[9]
III
Finally, the defendant claims that the court improperly permitted the state *1002 to present testimony from a witness, M, under the common scheme exception to the general prohibition of prior misconduct evidence. We disagree.
The following procedural facts underlie the defendant's claim. Prior to the start of the trial, which occurred before the court, Iannotti, J., the court, Reynolds, J., conducted a hearing related to the admissibility of certain uncharged misconduct evidence that the state intended to elicit from M at trial. Essentially, the defendant sought notice of the evidence at issue and asked the court to preclude the evidence. With the consent of the parties, the court treated the matter as a motion to preclude the evidence and conducted a hearing related to the motion during which it heard testimony from the victim and M.
During the hearing, M testified that he is Caucasian and of both Italian and Irish ancestry, and that he met the defendant in 1997, when he was twelve years old and the defendant was twenty-two years old. M testified that, like the defendant, he was a musician in the fife and drum corps and that he got to know the defendant through corps activities. M testified that his relationship with the defendant began when the defendant permitted him to sleep in his tent at a muster in 1997 and that he awoke the next morning to find that he was in the defendant's arms. After this point, in 1997, for approximately one year, until sometime in 1999, M and the defendant developed a close relationship. The defendant paid attention to M, and frequently provided M with transportation to and from corps activities. The defendant also spent time with M and his family at M's home and frequently stayed at M's home over weekends. M testified that the relationship soon became sexual in nature in that, on many occasions, he and the defendant engaged in sexual activities in the defendant's tent at musters and at M's home during weekend visits by the defendant, when his parents were asleep. At musters, the defendant acted in a guardian role. M testified that the sexual acts consisted of him performing fellatio on the defendant and the defendant performing fellatio on him. Also, M testified that he and the defendant had engaged in anal sex.
M testified that, during the relationship, the defendant gave him gifts, including a video game, alcoholic beverages and cigarettes. M testified that, during the relationship, the defendant cautioned him not to tell anyone about their sexual activities because doing so could cause trouble for the defendant.
At the hearing, the state presented the victim's testimony concerning his relationship with the defendant. The victim testified that he is Caucasian and of Irish descent and that he met the defendant in 1998, when he was eleven years old and the defendant was twenty-two years old. The victim testified that, like the defendant, he was a musician in the fife and drum corps and got to know the defendant through their corps activities. The victim testified that he and the defendant were in a relationship between 1999 and sometime in 2001. During this relationship, the defendant befriended the victim and frequently provided the victim with transportation to and from corps activities, including musters. During this relationship, the victim often slept in the defendant's tent at musters, where the defendant acted as a guardian for the victim. The victim testified that his relationship with the defendant became sexual, escalating from touching and kissing to many instances of oral and anal sex. The victim testified that sexual activities occurred in the defendant's tent at musters, that he performed fellatio on the defendant and *1003 that the defendant performed fellatio on him.
The victim testified that, during the relationship, the defendant gave him gifts including alcoholic beverages, marijuana, clothing, compact discs and food. The victim testified that, during the relationship, the defendant instructed him not to tell anyone about the sexual activities taking place and that, if they were to "go some-where," the victim was to tell others that he was sixteen years of age.
Following the evidentiary phase of the hearing, the prosecutor argued that M's testimony was admissible under the common scheme exception to the prohibition on the admission of uncharged misconduct evidence. The defendant's attorney objected to the admission of the evidence on the ground that it did not meet the test for admissibility under the common scheme exception and on the ground that the evidence was more prejudicial than probative.
Following the hearing, by way of an oral ruling, the court, Reynolds, J., denied the defendant's motion to preclude the evidence. The court reviewed the testimony elicited at the hearing and, after discussing the relevant legal principles, determined that the testimony of M, related to prior sexual offenses, was admissible under the common scheme exception. The court stated that the events described by M were "not remote in time at all" from those described by the victim, that the offenses described by the witnesses were "exactly similar" in nature and that the two witnesses were "almost identically situated" in that they were both Caucasian, of a similar age, musicians in the fife and drum corps with the defendant and participants in weekend musters with the defendant. After determining that the proffered evidence met the test for admissibility under the common scheme exception, the court considered whether the evidence was more prejudicial than probative. In this regard, the court stated: "[M's] testimony is highly probative of a common plan or scheme of sexual misconduct. It couldn't be any more on point. As to its prejudicial effect, what greatly influenced my decision [to admit the evidence] is the fact that this is to be a court trial, not a trial by jury. . . . [I]n this case, there is no concern about confusion [as to the proper use of this evidence] on the part of the jurors because there are no jurors. Judge Iannotti is a very experienced criminal judge. He's more than capable of . . . considering said evidence for its proper purpose." At trial, before Judge Iannotti, the state introduced M's testimony over the defendant's objection.
"Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005).
"[P]rior misconduct evidence may be admissible to prove intent, identity, motive, malice or a common plan or scheme. Conn.Code Evid. § 4-5(b). Thus, the fact [t]hat evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material. . . .
"In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant *1004 and material to at least one of the circumstances encompassed by the exceptions [set forth in Conn.Code Evid. § 4-5(b)]. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect. . . .
"The first prong of the test requires the trial court to determine if an exception applies to the evidence sought to be admitted. . . . When evidence of prior [uncharged] misconduct is offered to show a common plan or [scheme], the marks which the . . . [charged and uncharged misconduct] have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other. . . . [T]he inference need not depend [on] one or more unique features common [to both the charged and uncharged misconduct], for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together. . . .
"To guide this analysis, we have held that [e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan [when] the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness. . . . Our inquiry should focus on each of the three factors because no single factor is likely to be determinative. . . . Furthermore, [w]e are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in [trials of] sex related crimes than [in trials of] other crimes." (Citations omitted; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 630-31, 930 A.2d 628 (2007).[10]
The defendant argues that the uncharged prior offenses described by M did not meet the criteria for admissibility for several reasons. The defendant argues that the prior offenses were too remote in time because they occurred "more than a decade before" M testified at trial. The defendant's argument, however, is based on a misinterpretation of the law. As our decisional law amply reflects, the remoteness in time factor concerns the length of time, if any, between the charged and uncharged misconduct, not the length of time between the uncharged misconduct and the date of the trial. See, e.g., State v. Jacobson, supra, 283 Conn. at 632-33, 930 A.2d 628 (analyzing length of time between charged and uncharged misconduct); State v. Ellis, 270 Conn. 337, 358-59, 852 A.2d 676 (2004) (same); State v. Aggen, 79 Conn.App. 263, 272, 829 A.2d 919 (2003) (same). Here, we readily conclude that the charged and uncharged offenses occurred within the same time period, thereby raising the probative value of the uncharged offenses. With regard to the second factor, the defendant argues that the prior offenses were dissimilar to the charged offenses because, in contrast to the victim's allegations, M testified that the defendant sexually abused him at M's home while his family members were asleep and that sexual contacts took place during approximately one year. That there were some differences in the charged offenses is not dispositive. Here, *1005 M and the victim testified to strikingly similar accounts of sexual abuse at the hands of the defendant. Both witnesses testified that the defendant befriended them when they were members of the fife and drum corps, provided them with transportation to corps activities, provided them with various gifts, permitted them to sleep in his tent at musters, engaged in both oral and anal sex with them, engaged in sexual activities with them in his tent at musters and instructed them to conceal their sexual activities with him. We conclude that the many material similarities between the charged and uncharged offenses greatly outweigh the ways in which the offenses are dissimilar. For the foregoing reasons, we conclude that the court properly considered the relevant criteria and determined that the uncharged offenses were relevant as common scheme evidence.[11]
Next, the defendant argues that the court improperly failed to conclude that the evidence was more prejudicial than probative. First, the defendant argues that the evidence did not have any probative value because of "the remoteness of the uncharged misconduct evidence" and "the lack of similarity between the uncharged misconduct and the crimes charged." For the reasons set forth earlier in our analysis of this evidence, these arguments are not persuasive. Second, the defendant argues that the evidence should have been precluded because the state did not present any physical evidence or "independent witnesses to the alleged crimes" and the state's witnesses were inconsistent in several respects. Assuming that these are valid assertions, we fail to see how they affect the admissibility of the uncharged misconduct evidence. Such arguments properly are directed to the weight, if any, that the trier of fact should afford the evidence, not to the admissibility of the evidence. Finally, the defendant asserts that the evidence was inherently prejudicial. "Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the [trier of fact]." (Internal quotation marks omitted.) State v. Smith, supra, 275 Conn. at 218, 881 A.2d 160. We recognize that the uncharged misconduct evidence concerned the defendant's sexual abuse of a preteen boy and that evidence of this nature has a tendency to arouse the emotions of the trier of fact. We, however, reject the defendant's argument that the evidence was unduly prejudicial for two reasons. First, for the reasons set forth previously, we conclude that the evidence had a very high probative value; it strongly suggested a common scheme of criminal activity by the defendant. Second, this case was tried before a judge, not a jury. This distinction "decreased the likelihood that the trier of fact would afford it undue weight." State v. Boykin, 83 Conn.App. 832, 837, 851 A.2d 384, cert. denied, 271 Conn. 911, 859 A.2d 570 (2004). For the foregoing reasons, we conclude that the court's admission of the evidence of uncharged *1006 misconduct did not reflect an abuse of its discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] The trial court imposed a total effective term of incarceration of twenty years, suspended after twelve years, followed by twenty years of probation. With regard to one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2), the court granted the defendant's motion for a judgment of acquittal.
[2] In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.
[3] Apart from asserting that the court violated the defendant's state and federal constitutional rights, the defendant has not provided this court with a separate analysis of his rights under the Connecticut constitution or asserted that the Connecticut constitution affords him greater protections, for purposes of his claim, than its federal counterpart. Accordingly, "for purposes of this appeal we treat the jury trial rights arising from the state and federal constitutions as coextensive." State v. Gore, 288 Conn. 770, 776 n. 7, 955 A.2d 1 (2008).
[4] The specific issue resolved in Gore was "whether defense counsel validly waived a jury trial on behalf of the defendant ... when there [was] no evidence that the defendant also personally waived the right on the record." State v. Gore, supra, 288 Conn. at 772, 955 A.2d 1. The Supreme Court in Gore, determining what a constitutionally valid waiver of the right to a jury trial must entail, held that the constitution, at a minimum, required that the defendant personally indicate that he wanted to waive his right to a trial by jury and that such affirmative indication appear on the record. Id., at 777-78, 955 A.2d 1. Exercising its supervisory authority, the court required, in all future cases, that "in the absence of a written waiver, the trial court must canvass the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily." Id., at 786-87, 955 A.2d 1.
The court explained: "Accordingly, in the future, when a defendant, personally or through counsel, indicates that he wishes to waive a jury trial in favor of a court trial in the absence of a signed written waiver by the defendant, the trial court should engage in a brief canvass of the defendant in order to ascertain that his or her personal waiver of the fundamental right to a jury trial is made knowingly, intelligently and voluntarily. This canvass need not be overly detailed or extensive, but it should be sufficient to allow the trial court to obtain assurance that the defendant: (1) understands that he or she personally has the right to a jury trial; (2) understands that he or she possesses the authority to give up or waive the right to a jury trial; and (3) voluntarily has chosen to waive the right to a jury trial and to elect a court trial." Id., at 787-89, 955 A.2d 1. The court ruled that its holding applied prospectively. Id., at 786-87, 955 A.2d 1. Although the procedural safeguards afforded by the court in Gore, which was officially released on September 23, 2008, did not apply to the present case, in which the court imposed sentence on August 15, 2008, that decision nonetheless is instructive as we analyze the issue before us.
[5] Prior to accepting the defendant's waiver, the court did not explicitly state for the record any factual findings it had made with regard to whether the defendant's waiver was intelligent, knowing or voluntary. The defendant suggests that such omission supports his contention that the court's acceptance of his request was in error. As a preliminary matter, the defendant does not cite to any authority supporting his assertion that the court was required to explain its ruling by means of particular words or phrases. Rather, the law requires that the court ascertain the nature of the waiver prior to accepting or rejecting it.
This court does not presume error on the part of the trial court; error must be demonstrated by an appellant on the basis of an adequate record. It is the defendant's burden to demonstrate that the court erroneously accepted the waiver and to provide this court with a record supporting his claim. The defendant did not request an articulation related to the court's ruling, and we decline his invitation to infer that the court's failure to explain its ruling supports his claim that the ruling in any way was improper.
[6] General Statutes § 54-82b (b) provides: "In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial."
[7] Practice Book § 42-1 provides: "The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant's right thereto may be deemed to have been waived."
[8] In the fact section of his brief, the defendant refers in general terms to testimony presented on June 3, 2008. The defendant states that "the majority of [this testimony] was presumably allowed in under the guise of constancy of accusation evidence." The record reflects that the state presented testimony from four witnesses on that date, and the transcript of the court proceeding on that date, which primarily consists of the examination of these witnesses, is 104 pages in length. Even a cursory examination of the testimony of these witnesses casts doubt on the defendant's unsupported assertion that these were constancy of accusation witnesses in that their testimony was not presented in accordance with the carefully drawn parameters set forth in State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc). By way of example, two of the witnesses who testified on that date did not testify that they had spoken directly with the victim.
In the portion of his brief related to this claim, the defendant refers to Rachel Halas and Ralph DeLuca, detectives with the Danbury and Bethel police departments, respectively, who testified on June 3, 2008, that they had investigated the victim's complaints of sexual abuse. Although these witnesses testified that they had spoken with the victim concerning his complaints and that the victim had related information to them concerning his complaints, it is not at all clear from the record that the court admitted the testimony of these witnesses under the constancy of accusation doctrine or that the testimony of these police detectives who had investigated the victim's complaint constituted constancy of accusation evidence.
"A constancy of accusation witness is someone to whom the complaining witness in a sexual assault case has confided in about her assault. . . . For evidence of a prior accusation to be admissible pursuant to the constancy of accusation doctrine, the accusation must have been made before the victim reported the incident to the police. Once the victim has reported the crime to the police, statements to witnesses by the victim no longer serve the purpose for which constancy of accusation testimony is permitted. . . . Further, the constancy of accusation doctrine is limited to testimony only as to the fact and timing of the victim's complaint and as to details of the assault necessary to associate the complaint with the pending charge." (Citations omitted; internal quotation marks omitted.) State v. Antonio W., 109 Conn.App. 43, 51, 950 A.2d 580, cert. denied, 289 Conn. 923, 958 A.2d 153 (2008).
[9] Although the inadequacies of the defendant's brief preclude review of his claim, we note that, even if, as the defendant suggests, the court improperly permitted the state to present constancy of accusation testimony, we readily would reject the defendant's request to review this claim under the Golding doctrine. Our Supreme Court has held that claims related solely to the admission of evidence under the constancy of accusation doctrine are not constitutional in nature. See State v. Samuels, 273 Conn. 541, 558, 871 A.2d 1005 (2005); State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996).
[10] Although the court in the present case admitted the evidence of prior uncharged sexual misconduct under the common scheme exception, we note that, in State v. DeJesus, 288 Conn. 418, 470, 953 A.2d 45 (2008), a decision officially released after the court rendered its judgment in the present case, our Supreme Court recognized "a limited exception to the prohibition on the admission of uncharged misconduct evidence in sex crime cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior." (Emphasis in original.)
[11] Apparently, the defendant does not dispute that the state satisfied the third factor concerning the similarities shared by the alleged victims of the charged and uncharged offenses. Our independent review of this criteria reflects that M and the victim were Caucasian males with some degree of Irish ancestry, relatively close in age, members of the fife and drum corps and spent a significant amount of time under the defendant's watch at the time of the events in question. In light of this evidence, we conclude that the court properly determined that M and the victim were similar victims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541690/ | 76 B.R. 160 (1987)
In re Clarence PENNEY and Vanessa Penney, Debtors.
SEARS, ROEBUCK AND CO., Plaintiff,
v.
Clarence PENNEY and Vanessa Penney, Defendants.
Bankruptcy No. 1-86-01912, Adv. No. 1-87-0051.
United States Bankruptcy Court, N.D. California.
July 27, 1987.
*161 Douglas B. Provencher, Misuraca, Beyers, Costin, Case & Provencher, Santa Rosa, Cal., for debtors.
Victor L. Waid, Sacramento, Cal., for plaintiff.
Memorandum of Decision
ALAN JAROSLOVSKY, Bankruptcy Judge.
This matter comes before the court pursuant to a stipulated set of facts. The parties have agreed that the matter shall be tried on the facts as filed on June 12, 1987, which are stipulated to be all of the facts upon which the case shall be tried.
The facts in this case are very simple and completely undisputed. Prior to bankruptcy, plaintiff Sears sold the debtors a bunk bed, a washer and a dryer on credit, retaining a purchase money security interest. The debtors later defaulted in their payments, and when Sears demanded the collateral back the debtors told Sears that they no longer had the items. The debtors then filed a Chapter 7 petition, and Sears filed the instant action for recovery of the property and, in the alternative, for a money judgment. Sears also seeks contractual attorney's fees.
This action is exactly the same action Sears would file in state court had there been no bankruptcy. For some reason, Sears believes that a debtor can still be sued on a state-law cause of action after bankruptcy so long as the suit is filed in the bankruptcy court. This is sheer nonsense.
Rule 7001 is not, as Sears mistakenly believes, an open invitation to commence any sort of adversary proceeding against the debtor. Rather, it merely specifies what sort of relief properly sought under the Bankruptcy Code must be obtained by formal adversary proceeding as opposed to less formal motion or contested matter pursuant to Rule 9014. Rule 7001 is not an invitation to sue the debtor on a cause of action which, if brought in state court, would be a blatant violation of the automatic stay. To say that if money or property is sought it must be by adversary proceeding is not the same as granting leave to seek money or property for any reason, as Sears interprets the rule.
Where consumer debtors no longer possess a secured party's collateral, there are many possible explanations. The property may have been stolen, or lost in a move, or destroyed by fire, flood, or earthquake, or sold by debtors who do not understand the small print in a credit application, or sold by debtors who understand full well the secured creditor's rights. The latter situation may render the debt nondischargeable under section 523(a)(6) as willful conversion. 3 Collier on Bankruptcy (15th ed.) para. 523.16[3]. However, if the property has been innocently lost or destroyed, then Sears has absolutely no right or remedy against the debtors. Their contract obligations, like all other debts, are discharged pursuant to section 524(a).
*162 Sears has no right to seek a judgment on the contract after the filing of a bankruptcy petition, whether it be from this court or any other court, and no right to expect any such judgment to survive discharge. If Sears can locate the property after the discharge (or, after obtaining relief from the automatic stay, before discharge), it may take all steps necessary to obtain possession of it. However, a personal judgment can only be obtained against the debtors if Sears proves the debt nondischargeable in an action in this court under section 523(a)(6).
Even if Sears established the debt to be nondischargeable due to willful conversion of its collateral by the debtors, it would not be entitled to attorney's fees. The dischargeability action is not based on the contract but rather on a federal statutory right sounding in tort. Remedies created by federal bankruptcy statute do not give rise to a right to attorneys' fees unless the statute so provides. In re Johnson (9th Cir.1985) 756 F.2d 738, 741. See, e.g., section 523(d). The attorney fee provision in the contract between Sears and the debtors is totally irrelevant. For the same reason, any damages in such an action are limited to the value of the collateral on the date of conversion, not the balance due under the contract.
The complaint before the court does not allege conversion of the collateral, nor does it in any manner even mention section 523(a). Even if it did, Sears has produced absolutely no evidence that the debtors intentionally converted its collateral, and has stipulated that no further facts are to be considered. Judgment shall therefore be entered in favor of the debtors.
Because the complaint is so utterly meritless, the court finds that its filing was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Rather, it seems to have been motivated by sheer ignorance of bankruptcy law and the desire to unlawfully pressure the debtors into reaffirmation. The court notes that Sears has persisted in this conduct despite a warning from this court in a prior case. The court therefore awards the debtors reasonable attorney's fees as a sanction against Sears pursuant to Bankruptcy Rule 9011.
Counsel for the debtors shall prepare and submit an appropriate form of judgment. This memorandum shall constitute findings and conclusions pursuant to Rule 7052. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568423/ | 300 S.W.2d 679 (1957)
H. E. DUFF, Appellant,
v.
W. P. MATTHEWS et al., Appellees.
No. 10453.
Court of Civil Appeals of Texas, Austin.
March 13, 1957.
Rehearing Denied April 10, 1957.
*680 Julian C. Clopton, Austin, for appellant.
Calvin Jayroe, Cofer & Cofer, Austin, for appellees.
GRAY, Justice.
Appellees, W. P. Matthews and Paul H. Pfeifer, sued appellant, H. E. Duff, to establish a road or passway over appellant's land. They sought to establish the road by prescription and, in the alternative, by necessity. They also sued for damages.
Appellant answered by a general denial, pleas of limitation of three and five years, and as against appellee Matthews a general *681 warranty of title, and, in the alternative, and by way of cross action in the event such way or road be established across his land he sued for damages.
Appellant and appellees own lots in the Bruton Springs Subdivision in Travis County. The following sketch will sufficiently identify the lots for the purpose of this opinion:
Appellant owns the northwest portion of lot 6 which is marked on the sketch and labeled "Duff." Appellee Pfeifer owns lots 2 and 3 and appellee Matthews owns the west one half of lot 5 and the south portion of lot 6 together with a strip of land ten feet wide along the east line of appellant's tract and extending to Lake Austin, the same being a part of lot 6.
*682 Bruton Springs Subdivision was platted by J. F. Clark about the year 1912, and the plat was duly filed for record in the deed records of Travis County. This plat shows a "Road Reserved for Public." It extends from lot 1 to lot 17 and is shown on the attached sketch.
Also shown on the plat and the sketch is a road entering the subdivision from the Bruton Springs area and extending to lot 18. At the time the subdivision was platted J. F. Clark owned the land within and surrounding it to the river or lake front.
By mesne conveyances the lots have been conveyed by their description contained in the plat. Thus each grantor conveyed whatever was necessary for the enjoyment of the lot conveyed and retained whatever was necessary for the use of the land, if any, retained. Texas & N. O. R. Co. v. Millard, Tex.Civ.App., 181 S.W.2d 842, no writ history.
A steep bluff or hill extends across the lots between the above mentioned reserved road and the lake front and across the south portion of appellant's tract. This bluff or hill is not shown on the sketch but it appears that it extends to the lake front east of lot 1.
Appellant acquired his tract from appellee Matthews by general warranty deed dated January 21, 1950, since which time he has built a house between the bluff and the lake and has made other improvements on the land. However none of the parties permanently reside on their land.
There is an area designated on the plat as "Bruton Springs Park Reserve" and which lies generally west of lot 21 and extends to the lake front. This area was reserved for the common use of all purchasers of lots in the subdivision.
J. F. Clark testified that at the time the subdivision was platted, and afterwards, that in going to and from the lake front portions of the several lots he entered the subdivision from the Bruton Springs area and traveled east between the bluff and lake front. Various witnesses testified to the use of this way and it appears that appellees used it. There is dispute as to the actual condition of this way but there is evidence that it has to some extent at least been improved and extends to the west line of lot 3. The way or road extended across appellant's lot and between his house and the lake. It was used, with disputes, until Thanksgiving Day, 1953, where appellant closed it prior to which time however he had placed obstructions in the road.
This suit was filed July 5, 1955.
A jury trial was had and eighteen special issues were submitted some of which (3, 4, 5, 7, 8, 9, and 11) were not answered, because the answers to preceding issues rendered their answers unnecessary. The jury found: (1) that a road had existed from Bruton Springs across appellant's property for a period of ten or more years immediately prior to the time appellant closed it; (2) the public generally had not used the road along the route and across appellant's tract for ten or more years immediately prior to the time appellant closed it; (6) that appellee Pfeifer and his predecessors in title did not use the road across appellant's tract continuously and uninterrupted for ten or more years immediately prior to the time appellant closed it; (10) that the road across appellant's tract was not dedicated as a public road before appellant acquired it; (12) that when Matthews conveyed the tract to Duff the road across the property was "continuous, obvious, apparent and necessary"; (13) that in July, 1914, when J. F. Clark conveyed to C. M. Miller (lot 6 and part of lot 5) the road across the property was "continuous, obvious, apparent and necessary"; (14, 15, 16 and 17) that the parties had not suffered damages; and (18) that appellant had held peaceable and adverse possession of the roadway in controversy under title or color of title for three years prior to July 5, 1955.
The trial court rendered judgment disregarding the jury's answers to issues 2, 6, 10, 14, 15, 16, 17 and 18 and the failure *683 of the jury to answer issues 3, 4, 5, 7, 8, 9 and 11 and established an easement of necessity across appellant's property at a location different from the claimed road.
It is well established that a way of necessity must be more than one of convenience and if the owner of land has or can use another way then he does not have a way of necessity over another's land. Alley v. Carleton, 29 Tex. 74; Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622; Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397.
In Parker v. Bains, Tex.Civ.App., 194 S.W.2d 569, at page 576, er. ref., n. r. e., the Court said:
"There has been a gradual enlargement by the courts of the doctrine of implied reservation of right of way by necessity. At first it applied only to a right of way over the grantor's land. It was then extended in favor of the grantor over his grantee's land, under the same circumstances. Then the doctrine of strict necessity was watered down to reasonable necessity, but to be applied with great caution. Scarborough v. Anderson Bros, Const. Co., supra [Tex.Civ.App., 90 S.W.2d 305], and authorities there cited."
and see: 15 Tex.Jur., Sec. 18, p. 787.
In 1914, J. C. Clark sold all of lot 6 and part of lot 5 to C. M. Miller which sale left Clark as the owner of the other lots in the subdivision. We not that in 1914 Clark owned lots 1, 2, 3, 4, 5 and 6 until he sold lot 6 and part of lot 5 to Miller. On January 21, 1950, appellee Matthews owned all of lot 6 and the river front portion of lot 5. Conceding that prior to January 21, 1950, appellee Mattews did not have a way of necessity over his own land a different situation existed after the sale to appellant. 15 Tex.Jur., Sec. 16, p. 784.
In Othen v. Rosier, supra [148 Tex. 485, 226 S.W.2d 625], the Court said:
"* * * that before an easement can be held to be created by implied reservation it must be shown: (1) that there was a unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity, not a mere convenience; and (3) that the necessity existed at the time of severance of the two estates."
What we have already said is sufficient to show unity of ownership of the dominant and servient estates. The question of the necessity of the way will be later noticed but here we will assume it exists. Then at the time of the sale by Clark to Miller in 1914, Clark was entitled to the way from his lots 1, 2, 3 and 4 across Miller's land and also Miller had the way across Clark's other lands. Appellee Pfeifer now owns lots 2 and 3. Also in 1950 when appellee Matthews conveyed the northwest portion of lot 6 to appellant he was left with the east portion of lot 5 and the ten foot strip of lot 6 along the east side of appellant's land. The hill or bluff extends across the lots from west to east and appellees are entitled to a way of necessity over appellant's tract unless they have a way up the hill or bluff or by water over Lake Austin and around appellant's tract.
We have not found any Texas case dealing with streams, cliffs and hills. However these obstructions are noticed by the Supreme Court of Missouri in Wiese v. Thien, 279 Mo. 524, 214 S.W. 853, 5 A.L.R. 1552, and the annotations following that opinion in 5 A.L.R. page 1557 et seq.
The testimony of the witnesses relating to the hill or bluff shows it is very steep and that it would be practically impossible to go over it in any kind of vehicle. Its height is estimated to be from 300 to 400 feet. Appellee Mattews testified:
"* * * They could put cogs on the road and get up there, and that is about the only way.
"Q. Cogs?
*684 "A. Yes, put a track and cogs there to go up there, but you couldn't go up there with a four-wheel drive vehicle. I would say they couldn't pull it, no matter what kind of a grading they might do. That is straight up. You would have to put the road on a sloping order on a number of those lots. They couldn't just get on one lot and go right straight up, even with a four-wheel drive vehicle, even if they graded it with a bull dozer, they couldn't go up it. It would be that steep."
Appellee Pfeifer testified:
"No vehicle could go up and down the incline after you pass the curve in Bruton Springs and pass that curvature road which wraps itself around Lot 61, as I recall it over there, there is no point where any vehicle which I have knowledge of by the aid of another vehicle and a cable could make it either up or down that incline, regardless of the type of vehicle that you might wish to describe."
J. F. Clark testified that in 1914 when he sold lot 6 and part of lot 5 to Miller it was necessary for him to cross lots 5 and 6 and other lots to get to the lake front portions of lots 2 and 3. One witness said the cliff could be cut down with a bulldozer and appellant said "they could build a road there."
It is apparent that the witnesses agree that it would be impossible to get up and down the bluff without a road being built, that it would be difficult to build such a road which would require at least a bulldozer (and the attending expense) and that without the road the lake front portions of appellees' lots are not accessible by vehicles.
It is our opinion that the evidence is sufficient to show more than that it would be difficult and expensive for appellees to acquire another way to their lots, that the way prayed for is more than a mere convenience, that without the way prayed for appellees will be deprived of the reasonable and contemplated use of their lots, and that the way is a necessity.
Appellant objected to the submission of issues 12 and 13 for the reason that those issues are multifarious and duplicitous.
As stated supra appellees' pleading sought to establish a road over appellant's land first by prescription and, in the alternative, by necessity. Issues 1, 2, 6 and 10 supra related to the alleged prescriptive use of the way. Issues 12 and 13 are the only issues using the word "necessary" and clearly were submitted issues relating to the alternative pleading. The ultimate fact called for by this pleading was the necessity for the way. The fact that the issue submitted the factual elements of continuous, obvious and apparent with the ultimate factual element of necessity made the issue more onerous than required. However this imposed a greater burden on appellees and could not harm appellant.
"The rule is well established that an issue is not to be condemned as multifarious or duplicitous merely because it groups more than one fact element therein, so long as it involves only one ultimate or controlling issue as was the case in both of these issues. Austin v. De George, Tex.Civ.App., 55 S.W.2d 585, writ refused; Service Mut. Ins. Co. of Texas v. Territo, Tex.Civ.App., 147 S.W.2d 846; Rainwater v. McGrew, Tex.Civ.App., 181 S.W.2d 103." Gray County Gas Co. v. Oldham, Tex.Civ.App., 238 S.W.2d 596, 598. No. writ history.
Appellant says the trial court erred in refusing to declare a mistrial because appellees "injected evidence concerning insurance into the trial." This matter came about when appellee Matthews was testifying. He was asked by his attorney and testified as follows:
"Q. Did you furnish Mr. Duff an abstract at the time that he told you that we wanted to but this piece of *685 property prior to the closing of your transaction?
"A. I furnished his attorney with an abstract for examination purposes, and gave him a guaranty title to the property, and I got my abstract back."
No objection was made to the evidence at the time; however, later and in the jury's absence appellant moved for a mistrial and that the jury be discharged. This motion was denied and counsel were admonished not to mention insurance. At a subsequent time during the trial while the witness E. H. Smart was testifying and was being interrogated as to who he represented at the time a deposition was taken, he was asked by appellees' counsel and answered as follows:
"You do represent the party who guaranteed the title on the property to Duff now?
"A. That is correct."
Appellant objected, moved that a mistrial be declared and the jury discharged. The objection was overruled and the motion denied.
No complaint is made of the failure of the jury to find that any party had suffered damages. Then the question arises: Did the complained of error amount to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case? Rule 434, Texas Rules of Civil Procedure.
The burden was upon appellant to show from the record as a whole that the complained of error was such that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860.
Appellant relies on the general rule that the voluntary injection into the case that one or the other party is protected by insurance is inherently harmful and results in an improper judgment. Appellant does not argue, and the record does not suggest, that the complained of evidence indicated to the jury that either of the parties had insurance to protect the liability for which he was sued and certainly not that liability established against appellant by the judgment complained of. Then the evidence was not material to any issue in the case and hence caused no harm.
The trial court disregarded the jury's answer to issue 18 and appellant assigns the action as error.
The judgment complained of established "an easement of necessity across defendant's property." Then by the judgment appellees' right to cross appellant's tract exists by reason of necessity and not by prescription. This necessity did not arise while appellees had another way, that is not until appellant denied them passage over the usual way. Until that time the necessity did not arise, its use (necessity) was not adverse and it would be presumed to continue until the necessity cased to exist. Sassman v. Collins, 53 Tex.Civ.App., 71, 115 S.W. 337. Er. ref.; Alley v. Carleton, supra.
It is not necessary for us to here, and we do not, express any opinion as to whether the three years statute of limitation would be a bar to appellees' alleged way by prescription. That question is not before us, however the jury's answer to issue 18 (that appellant had "held peaceable and adverse possession of the claimed roadway in controversy under title or color of title for three years prior to July 5, 1955") is urged as a bar to appellees' way of necessity.
In Finn v. Williams, 376 Ill. 95, 33 N.E.2d 226, 228, 133 A.L.R. 1390, the Court said:
"A right of way easement of necessity was necessarily implied in the conveyance severing the two tracts in 1895, and passed by mesne conveyances to plaintiffs in 1937. The fact that the original grantee and his successors in interest have been permitted ingress to and egress from the 40 acres *686 over the land owned by surrounding strangers is immaterial. When such permission is denied, as in the present case, the subsequent grantees may avail themselves of the dormant easement implied in the deed severing the dominant and servient estates."
Also see: Othen v. Rosier, supra.
We have not been cited to any case applying the three year statute, Vernon's Ann.Civ.St. art. 5507, to easements and we have not found any. We are aware of the holding of our Supreme Court that the five year statute, Vernon's Ann.Civ.St. art. 5509, may be a bar to an easement by deed. City of Galveston v. Williams, 69 Tex. 449, 6 S.W. 860, and also the holdings of several Courts of Civil Appeals citing that opinion. However the three year statute was not involved in any of those opinions and only one, Chenowth Bros. v. Magnolia Petroleum Company, Tex.Civ.App., 129 S.W.2d 446, er. dism. judgm. cor., cited by appellant applies it (five years staute) to a way of necessity. However the holding in that case is that the way was barred by the five and the ten years statutes, Vernon's Ann.Civ.St. arts. 5509, 5510. In the court's statement of the case it said:
"Although plaintiffs alleged an implied easement over the lands in question under the `ways of necessity' doctrine, they present no proposition on that theory; hence, it will not be given further notice. They seem to have chiefly relied for recovery on a dedicatory deed to the City of Dallas, * * *."
However the court held:
"The right to an implied easement over the lands in question, if any such ever existed in favor or plaintiffs' predecessors in title, under the `ways of necessity' doctrine, or under any other theory, in our opinion, was shown by the facts to have been barred under the five and ten years' statutes of limitation prior to the institution of the suit."
The quoted statements perhaps may explain the Supreme Court's announcement that the judgment was correct.
The above decisions under the five years statute are not controlling here for the reason that different essential elements are required to perfect a title by limitation under the three and the five years statutes. Otherwise there would be neither justification nor necessity for the statutes fixing different times under which adverse possession of land may ripen into title.
The authorities cited in this opinion clearly hold that when a grantor conveys land which is surrounded by his own land, or by his and that of third persons, there is an implied reservation of a way of necessity over the land conveyed where the grantor has no other way of access to or egress from his land. Such implied reservation in favor of appellees is shown by the record before us and appellant took his deed subject to this implied reservation.
When appellant closed appellees' way to and from their land then the temporary right of a way of necessity arose "from the exigencies of the case and ceases when the necessity terminates." Bains v. Parker, supra [143 Tex. 57, 182 S.W.2d 399].
In Burnham v. Hardy Oil Co., 108 Tex. 555, 564, 195 S.W. 1139, 1142, the court considered the three years statute of limitation and as to the meaning of the record "title" as used in the statute, Art. 5508, said:
"* * * its definition in the statute as, `a regular chain of transfer from or under the sovereignty of the soil."
"This means, in a word, that the claimant, by a regular chain of transfer of itself effectual for that purpose, must possess the purported title originally conferred by the sovereign's grant, the source of the claimant's right. It is not necessary that he hold whatever better right may lie back of the grant. Nor is it essential that any conveyance in the chain subsequent to the grant *687 bestow a highter right than does the grant. The title must simply flow unbrokenly from its source. It is not required at any stage to rise above its source, but it must maintain throughout its succession all of the elements of its source. To have this character and effect, the chain of transfer must therefore be such as, in itself, will invest the claimant with the right originally acquired in virtue of the grant. * * *
"With the right, in its inception, afforded the protection of the statute only because of the power of the sovereign to confer it, there must continue in those whose successive transfers constitute the chain of title, the power to convey it. Such power is necessary to effectually transfer the title; unless it exists, the title does not connect by unbroken chain with the grant.
"The statute does not recognize as `title' any mere apparent right to the land granted. While it has reference only to the title originally evidenced by the grant, and disregards all other title, at no stage does it deal with any apparent right under that title, or with any right less than the actual `interest' or `estate' created by the grant. The claimant's title must connect with the grant. It does not connect with the grant, unless he holds the right vested by the grant. He does not hold such right, unless he has acquired, to the extent that the grant conferred it, the real and beneficial interest in the land. He acquires that interest, if the chain of transfer is sufficient in itself to invest him with it. But the chain of transfer is not sufficient in itself for that purpose, if any grantor in the chain is without the legal power to convey what his deed purports to convey.
"These propositions are in our opinion self-evident. They are established in the decisions of the court, and are not open to challenge. * * *
"A limitation claimant is not entitled to the protection which is accorded to an innocent purchaser. He derives no aid from equity, nor is he dependent upon any of its doctrines. The statute, alone, is the measure of his right, and meeting its requirements alone entitles him to its protection. `Title,' as used in this statute, does not mean the title which equity may in a proper case bestow. It refers to a title held by legal right as evidenced by a regular chain of transfer from the sovereignty of the soil. For illustration, the claimant's rights are not prejudiced by actual knowledge of the existence of the superior right. By the same rule, they are not bettered by his want of knowledge of its existence. No equitable considerations can make them superior to what they would be without the presence of such considerations. His title is simply such as the chain of transfer, tested by itself, unaided by and equity and unimpaired by any equity, confers. It is not defeated by the rights of others which lie outside of it. Neither is it supported by any rights in favor of the claimant which lie equally without it. Its strength, as well as its weakness, is only that of the chain of transfer which constitutes it."
Testing appellant's title by the language quoted we find that: title to all of the land in question was in 1912 vested in the subdivider Clark; through and from him by mesne conveyances title to the tracts involved has vested in the respective parties here, and the bluff or hill giving rise to the way of necessity has at all times extended across the several lots. Then unity of the ownership of the dominant and servient estates is shown. When Clark sold to Miller in 1914, he retained lots 1, 2, 3, and 4 and, if he had no other way of ingress and egress there was an implied reservation of a way by necessity over the land conveyed to Miller and Miller's land was charged with this burden in the hands of any vendee under the conveyance. Othen v. Rosier, supra. The same announcement is applicable *688 to the conveyance to appellant by appellee Matthews in 1950. Then appellant's title is burdened with an implied reservation of a way by necessity in favor of Pfeifer because he (appellant) is a vendee subsequent to Miller and the same is true as to Mattews and to appellant as a vendee of Matthews.
Testing appellant's title by "the chains of transfer which constitute it" his claim under the three years statute must fail because the grantors in the chain of transfers were without the legal power to convey the implied way by necessity existing in favor of other vendees.
"He acquires that interest, if the chain of transfer is sufficient in itself to invest him with it. But the chain of transfer is not sufficient in itself for that purpose, if any grantor in the chain is without the legal power to convey what his deed purports to convey." Burnham v. Hardy Oil Co., supra.
The chain of transfers in appellant's title brings him clearly within the holding in Burnham v. Hardy Oil Co., supra, and in any event there is no escape from it as to appellee Pfeifer. Moreover prior to or at the time appellant purchased the land from Matthews he was personally on the land and inspected it with a view of making the purchase. The physical facts as we have related them were in existence and were sufficient to charge him with notice of the existence of a way by necessity across the tract and further evidence the implied reservations of the conveyances constituting his chain of title. See 55 Am.Jur., Sec. 732, p. 1100.
The judgment in this cause is dated April 10, 1956. Appellant's motion for new trial was filed April 19, 1956, and his amended motion for new trial was filed May 17, 1956. Appellant's points 15 and 16 were presented in his amended motion for new trial which was filed more than twenty days after filing the original and for which reason they cannot be considered. Rule 329-b, Texas Rules of Civil Procedure.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568445/ | 300 S.W.2d 893 (1957)
ROYAL INDEMNITY COMPANY et al., Appellants,
v.
Annie Pearl Martin JACKSON et al., Appellees.
Supreme Court of Tennessee.
March 8, 1957.
*894 Wade & Forrester, Pulaski, for complainants.
D. C. Lee, Pulaski, for defendants.
SWEPSTON, Justice.
The only question in this Workmen's Compensation case is whether or not dependency, having been determined as of the date of the death of the deceased employee, may be affected by a subsequent change of conditions.
A petition was filed in this cause by Royal Indemnity Company, the insurance carrier, and the employees, a partnership doing business as M.H.M. Hereford Farms, in which the following is made to appear.
That one Ed Martin, an employee of said partnership, was injured in October 1952, and as a result of same, died on December 28, 1952. That his daughter, Annie Pearl Jackson, age 17, and her son, Ronald Eugene Jackson, age 2, were dependents of said deceased workman.
That an agreed settlement approved by the Court was entered of record in the Chancery Court of Giles County, by which said employer and insurance carrier were to make certain payments to the guardian of said minors for the benefit of Annie Pearl Jackson until she should become 18 years of age and for the benefit of her son in the amount of $10 a week for a period of 364 5/7 weeks, that is until June 25, 1960, subject to the conditions and limitations contained in the Workmen's Compensation Act of Tennessee.
It is alleged that conditions have now arisen which result in the fact that said Ronald Eugene Jackson is no longer a dependent of the said Ed Martin, deceased, but is a dependent of his father and mother, Annie Pearl Jackson and Willie Ollie Jackson, for the reason that, although said child was born out of wedlock, said parents have since married and thereby legitimated said minor child. Accordingly, the employer and insurance carrier sought to be relieved of liability for any other payments for the benefit of said minor child.
The Chancellor sustained the demurrer to said petition and hence this appeal.
The insistence of appellants is that, since the statute T.C.A. § 50-1013 provides in part that a child under the age of 16 years *895 is conclusively presumed as a matter of law to be wholly dependent upon the father, the Chancellor should have decreed that no further payments are required to be made for the benefit of said minor child as a dependent of the deceased Ed Martin, his grandfather, but that said child is conclusively presumed to be wholly dependent upon his father.
The question is controlled and settled by Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215. This case holds (1) that dependency is determined at the time of the injury or death of the employee and not at any time thereafter, and that the Courts will not consider subsequent events as affecting the right of dependents to compensation, provided they were dependents within the meaning of the Act at the time of the injury or death; (2) The above provision of the statute which creates the conclusive presumption that children under the age of 16 years are wholly dependent on the father means that compensation shall be paid to such children whether the father does or does not as a matter of fact support them, but that it is not the law that if in fact the children are dependent upon somebody else, such dependency cannot be shown and established by the proof.
This case has been followed on the first point in Lenior Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321; Sharp Drug Stores v. Hansard, 176 Tenn. 595, 604, 144 S.W.2d 777; Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 219, 164 S.W.2d 1010.
It has not been overruled or distinguished in any way with regard to the second point, the construction of the statute as to the meaning of the conclusive presumption. We see no reason to disturb this holding.
The decree of the Chancellor is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568442/ | 41 F.2d 48 (1930)
POCAHONTAS FUEL CO., Inc., et al.
v.
MONAHAN, Deputy Commissioner, et al.
No. 2435.
Circuit Court of Appeals, First Circuit.
May 17, 1930.
William B. Mahoney, of Portland, Me., for appellants.
Edward J. Harrigan, of Portland, Me., for interveners.
Frederick R. Dyer, U. S. Atty., and William D. Nulty and William W. Gallagher, Asst. U. S. Attys., all of Portland, Me., for Deputy Commissioner.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
ANDERSON, Circuit Judge.
This is a bill in equity brought under section 21 of the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1436 (33 USCA § 921), to set aside an award of compensation made by the Deputy Commissioner under the provisions of that act.
John King, a longshoreman, died on September 13, 1928, as a result of an accident suffered in the course of his employment. On due proceedings, the Deputy Commissioner awarded, on the basis of the decedent's average weekly wage of $27, to his father, Michael, and to his mother, Margaret, $6.75 per week each, and to his minor sister, Anna (born September 5, 1913) $4.05. The decedent's employer and its insurance company thereupon brought proceedings to set aside the award. The beneficiaries intervened, and on full hearing the court below ordered the bill dismissed with costs August 3, 1929; the main contention then was of inadequate evidence to establish the fact of injury in the course of his employment. On application of the plaintiffs, the court reconsidered the question of dependency, and in a careful opinion affirmed its former conclusion October 9, 1929. The sole question presented on this appeal is that of dependency.
The facts are practically undisputed. The King family consisted of a father, 67 years old, and four children, including the deceased. Two of the children were at work, and paying board at $5 and $7 a week, respectively, to their mother. The father worked more or less, and contributed to the family purse perhaps $16 a week on an average. The mother was treasurer or business *49 manager of the family, paid the rent, $30 a month, $5 a week for insurance, and did the marketing. The decedent turned over to his mother about $20 a week which, with the father's earnings of about $16, and assuming that the two children at work paid the full cost of their board, left for the four other members of the family, after the payment of the rent and the insurance, about $24 a week. Without any compensation, this would be reduced to about $4 a week for the support of the father, mother, and minor daughter.
This, in outline, was the evidence on dependency. The appellants' contention is that the finding of the Deputy Commissioner, affirmed by the court below, is unwarranted, as matter of law.
Appellants' learned counsel concede that the finding of the Commissioner is conclusive, if there is any evidence to support it. By section 23 (33 USCA § 923) it is provided that the Deputy Commissioner shall not be bound by the rules of evidence, but may make such investigation and inquiry as he thinks necessary for the speedy determination of the rights of the parties.
Both on principle and on the weight of authority we think the court below was right in sustaining the finding of the Deputy Commissioner. The legal duty of the surviving father was to support his wife and minor child. The act does not require entire dependency; partial dependency is enough. It is indisputable that without the wages of the dead son (or compensation approximating his contribution) the family would be reduced to a state of pinching poverty. The act is, of course, remedial and entitled to a liberal construction.
We do not regard the fact that the father was possibly earning sufficient money to support himself alone as the test of his dependency. It was as much his legal duty to support his wife and minor child as to support himself. If his earnings were inadequate for that threefold burden, there was partial dependency by him and the other two dependents, as the Deputy Commissioner held.
While the cases of Klein v. Brooklyn Heights R. R. Co., 188 A.D. 509, 177 N. Y. S. 67, and Frear v. Ells, 200 A.D. 239, 193 N. Y. S. 324, lend some support to the appellants' contention, the weight of authority is against this construction of the act. See Conners v. Public Service Electric Co., 89 N. J. Law, 99, 97 A. 792; Walz v. Holbrook, Cabot & Rollins Corp., 170 A.D. 6, 155 N. Y. S. 703; Fennimore et al. v. Pittsburg-Scammon Coal Co., 100 Kan. 372, 164 S.W. 265; Clover Fork Coal Co. v. Ayres, 219 Ky. 326, 292 S.W. 803; Ex parte Sloss-Sheffield Steel & Iron Co., 212 Ala. 3, 101 So. 608; In re Peters, 65 Ind. App. 174, 116 N.E. 848; Hamilton v. Texas Co., 151 La. 692, 92 So. 301.
We think the award of the Deputy Commissioner and the decisions last cited are more in harmony with the spirit of the act than the two New York cases on which appellants rely.
The decrees of the District Court are affirmed, with costs of appeal to the interveners. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568437/ | 300 S.W.2d 239 (1957)
SANDERS, Inc., Appellant,
v.
CHESMOTEL LODGE, Inc., et al., Appellees.
Court of Appeals of Kentucky.
March 22, 1957.
*240 Robert M. Coleman, Coleman, Harlin & Orendorf, Bowling Green, for appellant.
Selden Y. Trimble, IV, Stephen P. White, Jr., W. E. Rogers, Jr., Hopkinsville, for appellees.
MONTGOMERY, Judge.
This action sought recovery of damages arising from the sale of air conditioners. Appellee, Chesmotel Lodge, Inc., sued Harlan Thomas, d/b/a Thomas Refrigeration Service, Sanders, Inc., and York Corporation, retailer, wholesaler, and manufacturer, respectively, of York air conditioners. The case was tried by the judge without a jury. Judgment was rendered in favor of appellee against Sanders, Inc., for the sum of $2,569.12, from which this appeal has been prosecuted. The action was dismissed as to the other defendants.
The controlling question on the trial was whether Frank Sanders, President of Sanders Inc., misrepresented the capacity of the air conditioners sold to appellee.
Chesmotel Lodge, Inc., operated a motel in which York air conditioners had been used. Frank Sanders, President of Sanders, Inc., discussed the proposed purchase of sixteen air conditioners with the motel owners. Thomas, the local dealer, at the request of Sanders, was present during the latter part of the discussion preliminary to the purchase.
The testimony for the appellee from Henry S. Chestnut and his wife was to the effect that Sanders represented to them that a certain new model air conditioner had the same capacity as the old units then being used by appellee. The testimony of Harlan Thomas corroborates that of the Chestnuts with reference to a long distance call made by Sanders to secure further information concerning the price and capacity of the units. The evidence for the appellant was in conflict with the Chestnuts' proof. The trial court found that Sanders represented the new units would be of the same capacity as the old units. No issue was raised concerning the lack of capacity of the new units.
The trial court's finding was sustained by the evidence of the Chestnuts, as corroborated by Thomas, which was substantial in nature. The evidence in favor of *241 appellant was in conflict therewith, but we cannot disturb the trial court's finding in such case. CR 52.01.
The representation made by appellant as to the capacity of the air conditioners was material and false. It was made recklessly, without the knowledge of its truth, and as a positive assertion, with the intention that appellee should act upon the representation, which appellee did, to its injury. McGuffin v. Smith, 215 Ky. 606, 286 S.W. 884; Miles v. Proffitt, Ky., 266 S.W.2d 333. In such cases, the injured party has a cause of action based upon the false representation, and since it precedes the formation of a contract, it is not merged into the contract or warranty, as contended by appellant. City of Elizabethtown v. Caswell, Ky., 261 S.W.2d 424; Dunn v. Tate, Ky., 268 S.W.2d 925; Bryant v. Troutman, Ky., 287 S.W.2d 918. See also Huddleston v. Lee, Tenn., 284 S.W.2d 705. Such was the basis for appellee's action.
In arriving at the damages allowed, the trial court heard proof on the resale value of the air conditioners. It determined that each unit had a resale value of $75. Recovery by appellee was allowed for the purchase price paid for the units, reduced by the amount of the total resale value.
The fundamental rule in assessing damages for fraud is that the victim of fraud is entitled to compensation for every wrong which was the natural and proximate result of the fraud. 24 Am.Jur., Fraud and Deceit, Section 226, page 54. In Restatement of the Law of Torts, Volume 3, Section 549, page 108, the rule is stated as follows:
"The measure of damages which the recipient of a fraudulent misrepresentation is entitled to recover from its maker as damages * * * is the pecuniary loss which results from the falsity of the matter misrepresented, including
"(a) the difference between the value of the thing bought, sold or exchanged and its purchase price or the value of the thing exchanged for it, and
"(b) pecuniary loss suffered otherwise as a consequence of the recipient's reliance upon the truth of the representation."
See also Evola Realty Co. v. Scott, 306 Ky. 119, 206 S.W.2d 466.
While the opinion of the trial court makes reference to implied warranty, the reasoning and findings of fact indicate that the result reached was in accord with this opinion. No merit is found in the arguments based upon privity of contract, written contract, or implied warranty for the reason stated herein. The trial court order of dismissal as to Thomas and York Corporation was correct.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568449/ | 300 S.W.2d 175 (1957)
M. S. GARRISON, Appellant,
v.
Verna Mae MORROW et vir, Appellees.
No. 6099.
Court of Civil Appeals of Texas, Beaumont.
February 28, 1957.
Rehearing Denied March 20, 1957.
*176 Collins Garrison, Renfrow & Zeleskey, Lufkin, for appellant.
R. C. Musslewhite, Lufkin, for appellees.
ANDERSON, Justice.
The appeal is from an order or judgment of the district court of Nacogdoches County sustaining the defendants' joint plea of privilege and ordering the case transferred to the district court of Dallas County.
Appellant, M. S. Garrison, brought suit against appellees, Verna Mae Morrow and her husband L. H. Morrow, under the Declaratory Judgments Act, Article 2524-1, Vernon's Annotated Civil Statutes. He seeks to have a lease construed and declared to be still in effect on real property which is situated in Nacogdoches County and which is owned by appellee Verna Mae Morrow as a part of her separate estate. The defendants seasonably filed their plea of privilege, and it is undisputed that they reside in Dallas County. Plaintiff filed his controverting plea in due time and then, more than a year later, amended it. In the amended plea it was represented that venue lies in Nacogdoches County under both Subdivision 5 and Subdivision 14 of Article 1995, V.A.C.S., whereas in the original it was only represented that Subdivision 5 supports the venue. In both pleas plaintiff represented that he is suing on a written contract that is performable in Nacogdoches County. In the amended plea he additionally alleged that the suit is "for recovery of lands or damages thereto, and to remove encumbrances upon the title to land and to quiet title to land, and to prevent or stay waste on lands." The fact allegations of the two pleas were the same, however, having been supplied in each by inclusion of plaintiff's original petition.
The fact that Subdivision 14 of Article 1995 was not mentioned in the original controverting plea, which was the only one filed within ten days after the date on which a copy of the plea of privilege was served on the plaintiff, does not preclude us, as appellees would have it do, from applying such subdivision of the statute if it is otherwise applicable under the pleadings and evidence. The facts that are pleaded in the controverting plea and proved, and not the legal conclusions pleaded, control. See Halbert v. Sylestine, Tex. Civ.App., 292 S.W.2d 135, and authorities therein cited.
Appellant entered into possession of the disputed premises under a written lease dated July 15, 1945, and has been in possession ever since. Subject to its other provisions, the lease was to remain in effect for a term of ten years. The primary ten-year term having expired, and the parties having disagreed about the construction to be given a provision of the lease which appellant claimed gave him the option of continuing the lease in effect for an additional term of ten years, appellant was requested to vacate the premises by August 1, 1955. He filed this suit July 28, 1955. In both his original petition and his controverting plea, he sufficiently pleaded the lease contract, including the provision which he claims gave him the option to extend the lease for an additional term, and pleaded the steps taken by him to exercise the asserted option and continue the lease in effect. He prayed that the court "declare and determine that said original lease granted to the lessee a valid option to renew said lease for an additional term of 10 years beginning on July 15, *177 1955, under the same terms and provisions as the original lease and determine that the plaintiff has in all things legally exercised such option to renew and that said lease is now in full force and effect for an additional 10 years following the expiration of the original lease under the same terms and provisions as said original lease, and for such other and further relief to which the plaintiff may be entitled." At the hearing, appellant introduced evidence in support of the various allegations of his pleadings. There was no dispute about the facts.
If there were a chance that Subdivision 5 of Article 1995 might be applicable, we should perhaps need to state the facts more fully, but we are of the opinion that the suit is not, within contemplation of the statute, one "upon or by reason of" an obligation anyone has contracted in writing to perform in Nacogdoches County. We cannot concede that appellant is suing upon or by reason of an implied covenant for his quiet enjoyment of the premises involved.
Appellant is, however, suing to establish and, in effect, to quiet the title he asserts to a leasehold estate in land situated in Nacogdoches County, and we have concluded that the suit is such a one as is contemplated by Subdivision 14 of the aforesaid statute, which is as follows:
"Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie."
The ultimate or dominant purpose of the suit is to have it adjudged that the lease contract is still in effect and that appellant is entitled to continue in undisturbed possession of the disputed premises for a term of ten years from July 15, 1955, provided he complies with the terms of the lease as is exists. Therefore, and since a lease for a term of years is "a grant of an estate in land for a limited term, with conditions attached," Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 310, the suit is essentially one for the recovery of land, the concomitant element of quieting title being also involved.
Because appellant primarily and affirmatively seeks to have the lease contract construed, and since the construction that is given the lease when the case is heard on its merits will likely be determinative of the rights of the parties, it is easy to mistakenly assume that having the lease construed is the end result sought. But appellant does not seek merely an abstract construction of the lease. Instead, he seeks the tangible benefits to be derived from having the lease construed as he contends it should be. In other, words, he seeks, as aforesaid to establish title to a leasehold estate in land and to gain or retain possession of the premise described in the lease. Construing the lease will be but an incident in determining whether this relief is to be granted or withheld, even though the construction that is given it may be conclusive of the question.
In cases brought under the Uniform Declaratory Judgments Act, as this one was, it is the "nature and dominant purpose of the suit, as shown by the petition," that controls venue. McCurdy v. Morgan, Tex.Civ.App., 252 S.W.2d 264, 266. And, as already stated, this is essentially a suit "`for the recovery of land" and, in effect, one "`to quiet title to the land.'" We have no doubt, therefore, of the applicability of Subdivision 14 of Article 1995, Vernon's Annotated Civil Statutes. To hold otherwise would be to penalize appellant for the form of action resorted to. He could have resorted to the action of trespass to try title in quest of the same relief he seeks under the Declaratory Judgments Act. Stokes v. Riley, 29 Tex.Civ. App. 373, 68 S.W. 703, 705; 41-A Tex.Jur., Trespass to Try Title, sec. 19, p. 532. Had he done so, we think it improbable that appellees would even have filed their plea of privilege.
*178 Appellees argue that appellant is suing for specific performance of a contract, but such is not the case. He is suing for what he contends is a vested estate in land. He is not endeavoring to make appellees execute and deliver to him a new lease. On the contrary, it is his position that the original lease is still in effect for an additional term of years, rendered so by his exercise of what he contends is an option the lease granted him. Irrespective of whether the lease did in fact grant him such an option, we must be governed by the nature of the cause of action he is asserting.
The judgment of the trial court is reversed and judgment is here rendered that the plea of privilege filed by the defendants in the trial court be, and the same is hereby, overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568441/ | 300 S.W.2d 15 (1957)
Walter LEACH, Appellant,
v.
Esther LEACH, Appellee.
No. 5-1235.
Supreme Court of Arkansas.
March 25, 1957.
*16 Eugene Coffelt, Bentonville, for appellant.
Eli Leflar, Rogers, for appellee.
GEORGE ROSE SMITH, Justice.
This case presents a question that is novel in this state and very nearly so in the United States: Can a husband maintain a suit against his wife for damages due to her negligence? The appellant's complaint, as supplemented by a stipulation, alleges that on August 9, 1956, he was the owner of a pick-up truck and a Ford sedan. As Leach was driving the truck on a county road he collided with his wife, who was driving the, sedan in the opposite direction. It is asserted that Mrs. Leach was driving on the wrong side of the road and at an excessive speed. The trial court sustained a demurrer to the complaint and dismissed the action.
At common law neither spouse could maintain a tort action against the other. In the various states there is a decided difference of opinion about the extent to which the common law rule has been affected by statutes removing the disabilities of married women. The question has usually been considered in the converse situation, where the wife seeks to sue her husband. By a dwindling majority which now stands at about two to one the American courts hold that she cannot maintain the action. Prosser on Torts, 2d Ed., § 101; Sanford, Personal Torts Within the Family, 9 Vanderbilt L.Rev. 823. The courts following the majority view construe the emancipation acts strictly, as being in derogation of the common law, and usually suggest that recognition of suits between spouses would adversely affect harmony within the home. Prosser's criticism of the majority rule typifies the position generally taken by legal writers: "The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it." Prosser,loc. cit.
This reasoning has never appealed to us. With respect to a wife's suit against her husband we adopted the minority view more than forty years ago and have adhered to it. Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, 187 S.W. 460, L.R.A.1917B, 774, Ann.Cas.1918C, 772; Katzenberg v. Katzenberg, 183 Ark. 626, 37 S.W.2d 696. In *17 the Fitzpatrick case we considered and rejected both the usual arguments, that the statute is to be interpreted narrowly and that the majority view tends to preserve marital harmony. If these arguments are without merit when the wife sues the husband, they are obviously equally ineffective when the situation is reversed.
As Sanford correctly points out in the article cited above, the problem is primarily one of statutory construction. Our emancipation act is far more sweeping in its language than are most statutes on the subject: "Every married woman and every woman who may in the future become married, shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State, as though she were a femme sole; provided, it is expressly declared to be the intention of this act [section] to remove all statutory disabilities of married women as well as common law disabilities, such as the disability to act as executrix or administratrix as provided by § 6 of Kirby's Digest [§ 62-205], and all other statutory disabilities." Ark.Stats.1947, § 55-401.
We do not perceive that the explicit language of the statute leaves any doubt about the legislative intention. The appellee's suggestion that the act was meant only to broaden the rights of married women, and not to curtail the protection afforded them at common law, is rebutted by the unequivocal and unrestricted declaration that married women may "sue and be sued." This clause was the basis for our holding that a wife may sue her husband in tort. There can be no sound basis for a different conclusion when the shoe is on the other foot, for in the same breath the legislature abolished her disability to sue and her immunity from being sued.
On the question now presented the decisions elsewhere do not support the appellee's contention that we can with consistency adopt one rule for the wife and another for the husband. As might be expected, those courts which hold that a wife cannot sue her husband for a personal tort also hold that he cannot assert a similar cause of action against her. In jurisdictions adhering, as we do, to the minority view, the converse situation has arisen only twice, and it happens that both cases denied the husband's right to sue his wife. Scholtens v. Scholtens, 230 N.C. 149, 52 S.E.2d 350; Fehr v. General Accident, etc., Corp., 246 Wis. 228, 16 N.W.2d 787, 160 A.L.R. 1402. But in each case the court was construing a statute which expressly conferred upon a married woman the right to sue but did not mention the correlative matter of her liability to being sued. The problem, as we have said, is one of statutory construction; so we cannot be guided by decisions based upon statutes that differ from ours upon the very point that is controlling.
Reversed, the demurrer to be overruled.
HARRIS, Chief Justice (dissenting).
In dissenting to the ruling of the majority, I desire to make it clear that my dissent is not based upon the fact that the common law did not grant either spouse the right to maintain tort action against the other; nor am I concerned because we are the first state to allow the husband the right to sue his wife for tort. I fully agree that if the wife has the right to sue the husband in tort, the converse should likewise be true, but I am persuaded that to allow either spouse to sue the other for unintentional tort is against public policy,[1] and should be so declared by this Court. I would accordingly overrule the case of Katzenberg v. Katzenberg, 183 Ark. 626, 37 S.W.2d 696.
*18 I would not overrule Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, 187 S.W. 460, L.R.A.1917B, 774, Ann.Cas. 1918C, 772, as that case dealt with the right of the wife to sue her husband for intentional injury. Actually, in that case, the husband made an assault upon the wife, and killed her, and the suit was brought by her administrator. To me, there is a vast difference between rights of a spouse that might accrue from an intentional injury, in contradistinction to an unintentional injury.
The theory of the law in those jurisdictions which frown upon suits between husband and wife is that permitting suits between spouses would adversely affect harmony in the home. The majority, in this current Opinion, quote Prosser: "The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedyand this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it." Prosser, loc. cit. I have no quarrel with this language; in fact, I quite agree that the harmony of the home is already disrupted when either spouse commits an intentional tort against the other. The same language does not apply to an unintentional tort.
Let us take a hypothetical case. The wife, after finishing her housecleaning, neglects to return the vacuum cleaner to the closet where it usually is placed, and negligently leaves same in the middle of the hall. The husband, returning home that night from a business trip, after the wife has retired, stumbles over same, and receives injuries. Under the view of the majority, he is entitled to sue the wife. Of course, if she is without means, he would not bring a suit; if, on the other hand, she is gainfully employed, or financially independent in her own right, and he goes to court to recover from her for the injury, no imagination is needed for one to know that harmony in that home would be completely disrupted, and connubial bliss abruptly terminated. The marriage relationship, which might have been happy enough, would totally disintegrate. But, on the other hand, let us say that this particular family has comprehensive personal liability coverage, and suit is brought. In such event, I concede that domestic harmony would not be destroyed, but it could not be logically argued that such a suit between spouses would be justified simply because the insurance company, after all, would be the one to pay. This brings me to one of the worst features involved in permitting this type of suit. Using my same example, let us say that the husband fell and injured himself in the home, not because of his wife's negligence, but because of his own carelessness. There will be medical expenses and loss of time from work, with perhaps a resulting loss of income. Under this set of facts, the husband would have to stand this loss himself, which would also directly affect the welfare of the wife. Now, if this man and wife are without morals and conscience, what is to prevent the husband from instituting suit against his wife, alleging that his injury occurred in the manner first stated. (Wherein she left the cleaner in the hall.) She does not deny it, and how can it be proved that it did not happen in that manner? There are no other witnesses to establish that the injury was sustained by the husband because of his own negligence rather than that of his wife. Unfortunately, I fear that there might be a few husbands and wives who would welcome the opportunity to make a joint raid *19 upon an insurance company. This certainly should not be permissible. Either set of facts presents an intolerable situation, not in the interest of the public, and one which the law should not countenance. While I hope that it will not so result, the holding of the majority, in my opinion, opens the door to fraudulent claims against insurance carriers.
Be that as it may, litigation between man and wife for an unintentional tort committed by one against the other is not salutary, and actually is repugnant, to the marriage vows. The bulwark of our community and national strength is the home, and we should not adopt a policy that might well, in individual cases, rupture marital happiness.
Solely because I consider such holding to be against public policy, I respectfully dissent.
HOLT, J., joins in this dissent.
NOTES
[1] Bouvier's Law Dictionary defines Public Policy as: "That principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good." It has been designated by Burroughs, J., as "an unruly horse pursuing us, and when once you get astride of it you never know where it will carry you. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568463/ | 403 F. Supp. 361 (1975)
UNITED STATES of America
v.
Jeremy Albert CARPENTER and John Edward Emery.
Crim. No. 75-72-F.
United States District Court, D. Massachusetts.
August 1, 1975.
James O'Neil, Asst. U. S. Atty., Boston, Mass., for plaintiff.
Jay M. Forgotson, Springfield, Mass., for defendant Carpenter.
Arthur Serota, Springfield, Mass., for defendant Emery.
*362 MEMORANDUM AND ORDER
FREEDMAN, District Judge.
This matter is before the Court on defendants' motion to suppress. A hearing was conducted in Springfield, Massachusetts, on June 5, 1975, at which the parties offered evidence. After careful consideration of the evidence, stipulations, memoranda of counsel, and the pertinent authorities, the Court hereinafter enters its findings and conclusions.
On December 13, 1974, United States Customs Agents in Miami, Florida, opened two packages addressed to Jeremy Carpenter, P.O. Box 45, North Hatfield, Massachusetts, bearing the return address: Claudia Rush, Aveneo Del Rio, 5A95, Cali, Columbia. Each package contained a sound speaker and a quantity of cocaine.[1] This search was without a warrant and was not consented to by the addressee. The packages were later resealed and forwarded to United States Postal Service authorities in Boston who, with special agents of the Drug Enforcement Administration ("DEA"), again opened the packages on January 2, 1975. A field test was conducted and it affirmed that the substance was cocaine. Some of the drug was removed, sugar was mixed with the remaining cocaine, and the packages were resealed. The cocaine which had been removed was seized as evidence.
A briefing was conducted on January 5, 1975, for the Drug Enforcement Administration Agents who would be taking part in the investigation of the seized cocaine. Special Agents John Albano, Dale Seymour and John Tuttle, among others, were in attendance. Albano brought the other agents up to date on the investigation. A controlled delivery of the contraband was scheduled for the next day, January 6. Special Agent Tuttle was selected to be the affiant for the search warrant which was expected to be required since he was to be in Boston on another matter that day.
On January 6, 1975, Special Agents Albano and Seymour and Postal Inspector Dahlgren arrived at the Post Office in North Hatfield. The officers remained at the Post Office all day. At some point they inserted within each of the packages an electronic device known as a "beeper". This device was designed to emit a signal which could be monitored by a radio receiver. The signal would be altered when the "beeper" was disturbed. In this case the change would inform one monitoring the signal that one of the packages had been opened. The device is a metal-encased object about the size of a cigarette package. It is not capable of recording or transmitting anything of a verbal nature; its sole function is to emit a radio signal. No warrant was sought for the insertion of the "beeper", although the agents had decided to use it on January 2, 1975.
The DEA Agents and Inspector Dahlgren maintained surveillance of the Post Office throughout the day. At approximately 4:30 p. m., defendant Carpenter arrived to pick up his mail and was given the two packages in question.[2]
The agents then followed Carpenter to his home located above Buckwheat's Pizza in North Hatfield, maintained surveillance, and monitored the "beeper" over a radio receiver.
Special Agent Albano telephoned Agent Tuttle who was in Boston preparing an affidavit for the search warrant.[3]*363 Tuttle completed the affidavit and thereupon went before Magistrate Davis who issued the warrant. Tuttle then proceeded to North Hatfield to join the other agents, arriving at approximately 7:00 p. m.
The agents maintained continuous surveillance of the Carpenter apartment. At some point during this period, defendant Emery and another individual entered the apartment. Later that evening, about 9:00 p. m., the agents detected a change in the signal from the "beeper", alerting them to the fact that one of the packages had been opened. They then proceeded to the Carpenter apartment and executed the search warrant. As several of the agents entered the building, those who had remained outside spotted the packages being thrown out of a window. It developed that Emery had dropped the packages out of the window; they were recovered by one of the agents and seized under the warrant.
Defendants assert three grounds for their motions to suppress: that the initial customs search in Miami on December 13, 1974 was invalid; that the affidavit in support of the January 6 search warrant was insufficient to provide the magistrate with probable cause; and that the warrantless insertion of the "beeper" was violative of the Fourth Amendment.
Customs Search
It is stipulated that this search was warrantless and, thus, the burden is upon the government to demonstrate that it was valid. No evidence was taken concerning this search.[4] The only factual material before the Court is that the search was conducted by customs agents and that the defendants did not consent thereto.
The government relies upon United States v. Odland, 502 F.2d 148 (7th Cir.), cert. denied, 419 U.S. 1088, 95 S. Ct. 679, 42 L. Ed. 2d 680 (1974), which holds that ". . . the Government is free to spot-check incoming international mail at the port of entry, or to inspect all such mail, or to inspect any such mail which attracts the inspector's attention." Id. at 151. Cf., United States v. Stornini, 443 F.2d 833 (1st Cir. 1971). Defendants counter that Odland is not the law in this circuit and that customs officers required "reasonable grounds to suspect that contraband" was in the packages.
The cases cited by defendants are not persuasive. It is the position of this Court that the Odland formulation is correct and is controlling in this case. Accordingly, I find the initial search by United States Customs authorities to have been valid.
Sufficiency of the Affidavit
The affidavit for the search warrant is set forth as "Appendix A". Defendants correctly point out that the Court can only look to the information which was before the magistrate in determining whether there was probable cause to issue the warrant. Aguilar v. Texas, 378 U.S. 108, 109, n. 1, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The affidavit constitutes all the information which the magistrate had for his consideration.
The thrust of defendants' contentions with respect to the affidavit is that the affiant's sources of information are not identified. There is no question but that substantially all of the information contained in the affidavit was of a hearsay nature. However, it is well settled that hearsay may be the basis for probable cause so long as there is a substantial basis for crediting the information. Jones v. United States, 362 U.S. 257, 272, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). In this case all of the paragraphs of the affidavit, with the exception *364 of paragraphs 5 and 8, refer to law enforcement agents of one branch or another of the United States Government. While each piece of information contributed by these officers does not contain the underlying basis for the factual representation, it is clear from the totality of Agent Tuttle's affidavit that these enforcement officers were engaged in a cooperative investigation. "Observations of fellow officers of the Government engaged in a cooperative investigation are plainly a reliable basis for a warrant applied for by one of their number." Id. at 111, 85 S.Ct. at 747 (footnote omitted). The sources of the observations of Special Agent Albano in paragraphs 6 and 7 are certainly adequately identified by the words "maintaining surveillance" used in both paragraphs.
Defendants argue further that this case is "on all fours" with United States v. Curwood, 338 F. Supp. 1104 (D.Mass. 1972) wherein the affidavit was found to be insufficient to establish probable cause. I reject the analogy. In Curwood the failure to identify the source of information left a question of whether that information was reliable or not. In the case at bar the information plainly comes from government agents engaged in an investigation. While it is true that the affiant might have supplemented his affidavit by adding amplifying information, the Court concludes that the facts set forth were sufficient to provide the requisite probable cause. In this regard I note the oft-cited passage from United States v. Ventresca, supra, at 108, 85 S.Ct. at 746:
These [Supreme Court] decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.
Defendants have also pointed to an error of fact in that paragraphs 5 and 6 of the affidavit referred to a "[n]otification of delivery" slip; it is undisputed that such a slip was not used since the North Hatfield Postmaster does not employ such a procedure. See n. 2, supra. Such factual inaccuracies which are neither material nor intentional are insufficient to vitiate an otherwise valid warrant. Cf., Rugendorf v. United States, 376 U.S. 528, 532, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964).
Insertion of the "Beeper"
The warrantless insertion of a "beeper" in each of the packages raises a question of whether such a device comes within the protection of the Fourth Amendment; i. e., whether the placing of the "beeper" constituted a "search".
Defendants contend that this device continuously monitored the events taking place within the apartment once Carpenter had returned with the packages. Such monitoring, however, was of a limited nature. No conversations were overheard or recorded as a result of the presence of the "beeper". Its only function in this case was to signal the agents when the packages were opened. They had a warrant to seize the boxes; it was not a matter of seizing evidence to which they would not have otherwise been entitled. Without doubt there was an "intrusion", but does such an intrusion rise to the level of a search requiring a warrant under the Fourth Amendment? I think not.
Defendants seek to bring this government activity within the purview of the warrant requirement by denominating the "beeper" an electronic monitoring device. Simply invoking the term "electronic" would not seem adequate to bring into play all the constitutional protections which defendants assert. The procedure used here is far less an intrusion than wire tapping or bugging. Those law enforcement techniques require all the protection afforded by the *365 Fourth Amendment. As Mr. Justice Douglas stated in his concurring opinion in Berger v. New York, 388 U.S. 41, 65, 87 S. Ct. 1873, 1886, 18 L. Ed. 2d 1040 (1967):
The traditional wiretap or electronic eavesdropping device constitutes a dragnet, sweeping in all conversations within its scope without regard to the participants or the nature of the conversations. It intrudes upon the privacy of those not even suspected of crime and intercepts the most intimate of conversations.
The Supreme Court grappled with the issues of wire tapping and bugging for a long period before holding that conversations were to be covered under the Fourth Amendment. See: Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928); Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 (1942); Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Berger v. New York, supra. To carry the warrant protection to the placing of a "beeper" inside a package containing contraband which had been validly searched by customs officials is an extension of the Fourth Amendment which no court has yet made. On the facts of this case the "beeper" is not such an intrusion as to merit the procedural safeguards sought by defendants.
Accordingly, the motions to suppress are denied.
Defendants have also filed motions to dismiss based upon "illegal acts" of the government in its prosecution of the case. The Court has reviewed the evidence in light of these allegations, and finds them to be without merit. The motions to dismiss are denied.
APPENDIX A
Affidavit for
Search Warrant
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MASSACHUSETTS
Magistrate's Docket No. 15-1
UNITED STATES OF AMERICA | Case No. 75-4
vs. |
Those certain premises known as the | AFFIDAVIT FOR
apartment of Jeremiah Carpenter, located > SEARCH WARRANT
above Buckwheat's Pizza at North |
Hatfield Road and West Street, North |
Hatfield, Massachusetts |
BEFORE BOSTON, MASSACHUSETTS
Name of Magistrate Address of Magistrate
The undersigned being duly sworn deposes and says:
That he (has reason to believe) that (on the person of)
(is positive)[1] (on the premises known as)
*366 those certain premises known as the apartment of Jeremiah Carpenter, located above Buckwheat's Pizza at North Hatfield Road and West Street, North Hatfield, Massachusetts in the District of Massachusetts there is now being concealed certain property, namely
here describe property
cocaine, in violation of Title 21, United States Code, § 952(a)
[SEE ATTACHED AFFIDAVIT]
which are
here give alleged grounds for search and seizure
And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:
[SEE ATTACHED AFFIDAVIT]
John A. Tuttle
________________________________,
Signature of Affiant.
John Tuttle, Special Agent
Drug Enforcement Administration
________________________________,
Official Title, if any.
Sworn to before me, and subscribed in my presence, Jan. 6, 1975
Willie J. Davis
________________________________,
United States Magistrate.
AFFIDAVIT
Suffolk, ss.
Boston, Massachusetts
January 6, 1975
I, John Tuttle, Special Agent, Drug Enforcement Administration, Hartford, Connecticut, do hereby depose and say as follows:
1. I am a Special Agent, Drug Enforcement Administration, Hartford, Connecticut.
2. On December 13, 1974, Special Agents of the Bureau of Customs, Miami, Florida intercepted two mail parcels measuring 7½" × 5" × 5¾" addressed to Jeremy Carpenter, Post Office Box 45, North Hatfield, Massachusetts bearing the return address, Claudia Rush, Aveneo Del Rio, 5A95, Cali, Colombia. Each parcel contained one sound speaker within which was secreted one pound of cocaine, the two parcels containing a total of two pounds of cocaine.
3. The Bureau of Customs, Miami, Florida, forwarded these two parcels by mail pouch to the Postal Inspector, Boston, Massachusetts; they were received by Postal Inspector Dahlgren on December 20, 1974.
4. On December 26, 1974, Postal Inspector Dahlgren determined that the holder of Post Office Box 45, North *367 Hatfield, Massachusetts, Jeremiah Carpenter, resides in an apartment above Buckwheat's Pizza located at North Hatfield Road and West Street, North Hatfield, Massachusetts.
5. On January 6, 1975, at approximately 10 A.M., the two parcels were placed in the North Hatfield Post Office for delivery. Notification of delivery was placed in Post Office Box 45.
6. On January 6, 1975, DEA Special Agent John Albano, maintaining surveillance of the North Hatfield Post Office advised me that at approximately 4:00 P.M. Jeremiah Carpenter presented the notification of delivery slip to the window clerk of the North Hatfield Postal Station and received the previously identified 7½" × 5" × 5¾" parcels addressed to Jeremiah Carpenter, Post Office Box 45, North Hatfield, Massachusetts bearing the return address, Claudia Rush, Aveneo Del Rio, 5A95, Cali, Colombia.
7. At approximately 4:30 P.M. DEA Special Agent John Albano, maintaining surveillance of the residence of Jeremiah Carpenter, located above Buckwheat's Pizza, North Hatfield Road and West Street, North Hatfield, Massachusetts, advised me that Jeremiah Carpenter entered that building in possession of two parcels measuring approximately 7½" × 5" × 5¾".
8. For the foregoing reasons, I have probable cause to believe that there is now concealed in that building cocaine which has been imported from Colombia, in violation of Title 21, United States Code, Section 952(a).
John A. Tuttle
______________________________
JOHN TUTTLE, Special Agent
Drug Enforcement Administration
Hartford, Connecticut
Sworn and subscribed to before me this 6th day of January, 1975.
Willie J. Davis
________________________________
UNITED STATES MAGISTRATE
NOTES
[1] The parties stipulated to the fact of the opening in Miami. No government witnesses involved in that search testified. The evidence concerning the identification of the contents as cocaine was offered by Special Agent Albano.
[2] As will more fully appear later in this memorandum, the affidavit for the search warrant speaks of a notification of delivery slip being presented to the Postmaster. Carpenter never received nor presented such a slip. As he approached the counter, the Postmaster simply placed the packages on the counter and the defendant removed them.
[3] The affidavit for the search warrant is attached as "Appendix A".
[4] There was hearsay testimony of Special Agent Albano that cocaine was found.
[1] The Federal Rules of Criminal Procedure provides: "The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time." (Rule HC) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568467/ | 403 F. Supp. 1199 (1975)
John DOE et al., Plaintiffs,
v.
COMMONWEALTH'S ATTORNEY FOR CITY OF RICHMOND et al., Defendants.
Civ. A. No. 74-0025-R.
United States District Court, E. D. Virginia.
October 24, 1975.
*1200 John D. Grad, Alexandria, Va. (Philip J. Hirschkop), Alexandria, Va., for plaintiffs.
Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen.), Richmond, Va., for defendants.
Before BRYAN, Senior Circuit Judge, LEWIS, Senior District Judge, and MERHIGE, District Judge.
BRYAN, Senior Circuit Judge:
Virginia's statute making sodomy a crime is unconstitutional, each of the male plaintiffs aver, when it is applied to his active and regular homosexual relations with another adult male, consensually and in private.[1] They assert that local State officers threaten them with prosecution for violation of this law, that such enforcement would deny them their Fifth and Fourteenth Amendments' assurance of due process, the First Amendment's protection of their rights of freedom of expression, the First and Ninth Amendments' guarantee of privacy, and the Eighth Amendment's forbiddance of cruel and unusual punishments. A declaration of the statute's invalidity in the circumstances is prayed as well as an injunction against its enforcement. Defendants are State prosecuting officials and they take issue with the plaintiffs' conclusions. With no conflict of fact present, the validity of this enactment becomes a question of law.
So far as relevant, the Code of Virginia, 1950, as amended, provides:
"§ 18.1-212. Crimes against nature. If any person shall carnally know in any manner any brute animal, or carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years."
Our decision is that on its face and in the circumstances here it is not unconstitutional. No judgment is made upon the wisdom or policy of the statute. It is simply that we cannot say that the statute offends the Bill of Rights or any other of the Amendments and the wisdom or policy is a matter for the State's resolve.
I. Precedents cited to us as contra rest exclusively on the precept that the Constitution condemns State legislation that trespasses upon the privacy of the incidents of marriage, upon the sanctity of the home, or upon the nurture of family life. This and only this concern has been the justification for nullification of State regulation in this area. Review of plaintiffs' authorities will reveal these as the principles underlying the referenced decisions.
In Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), plaintiffs' chief reliance, the Court has most recently announced its views on the question here. Striking down a State statute forbidding the use of contraceptives, the ruling was put on *1201 the right of marital privacyheld to be one of the specific guarantees of the Bill of Rightsand was also put on the sanctity of the home and family. Its thesis is epitomized by the author of the opinion, Mr. Justice Douglas, in his conclusion:
"We deal with a right of privacy older than the Bill of Rightsolder than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." p. 486, 85 S.Ct. p. 1682.
That Griswold is premised on the right of privacy and that homosexual intimacy is denunciable by the State is unequivocally demonstrated by Mr. Justice Goldberg in his concurrence, p. 499, 85 S. Ct. 1678, in his adoption of Mr. Justice Harlan's dissenting statement in Poe v. Ullman, 367 U.S. 497, 553, 81 S. Ct. 1752, 1782, 6 L. Ed. 2d 989 (1961):
"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extramarital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy." (Emphasis added.)
Equally forceful is the succeeding paragraph of Justice Harlan:
"In sum, even though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection." At p. 553, 81 S.Ct. at p. 1782. (Emphasis added.)
Justice Harlan's words are nonetheless commanding merely because they were written in dissent. To begin with, as heretofore observed, they were authentically approved in Griswold. Moreover, he was not differing with the majority there on the merits of the substantive case but only as to the procedural reason of its dismissal. At all events, the Justice's exegesis is that of a jurist of widely acknowledged superior stature and weighty whatever its context.
With his standing, what he had further to say in Poe v. Ullman, supra, is worthy of high regard. On the plaintiffs' effort presently to shield the practice of homosexuality from State incrimination by according it immunity when committed in private as against public exercise, the Justice said this:
"Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so *1202 deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis." (P. 546, 81 S.Ct. p. 1778, accent added.)
Again:
"Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. . . . But not to discriminate between what is involved in this case and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made." (Pp. 552-553, 81 S.Ct. p. 1782, accent added.)
Many states have long had, and still have, statutes and decisional law criminalizing conduct depicted in the Virginia legislation. The subject is comprehensively reviewed in State of New Jersey v. Lair, 62 N.J. 388, 301 A.2d 748, 58 A.L.R. 3d 627 (1973) and in the accompanying ALR Annotation.
II. With no authoritative judicial bar to the proscription of homosexuality since it is obviously no portion of marriage, home or family lifethe next question is whether there is any ground for barring Virginia from branding it as criminal. If a State determines that punishment therefor, even when committed in the home, is appropriate in the promotion of morality and decency, it is not for the courts to say that the State is not free to do so. Poe v. Ullman, supra, 367 U.S. 497, 81 S. Ct. 1752, Harlan, J., dissenting at p. 550, 81 S. Ct. 1752; see also California v. LaRue, 409 U.S. 109, 114, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972). In short, it is an inquiry addressable only to the State's Legislature.
Furthermore, if the State has the burden of proving that it has a legitimate interest in the subject of the statute or that the statute is rationally supportable, Virginia has completely fulfilled this obligation. Fundamentally, the State action is simply directed to the suppression of crime, whether committed in public or in private. Both instances, as California, supra, recognizes, are within the reach of the police power.
Moreover, to sustain its action, the State is not required to show that moral delinquency actually results from homosexuality. It is enough for upholding the legislation to establish that the conduct is likely to end in a contribution to moral delinquency. Plainly, it would indeed be impracticable to prove the actuality of such a consequence, and the law is not so exacting.
If such a prospect or expectation was in the mind of the General Assembly of Virginia, the prophecy proved only too true in the occurrences narrated in Lovisi v. Slayton, 363 F. Supp. 620 (EDVa. 1973, now on appeal in the Fourth Circuit). The graphic outline by the District Judge there describes just such a sexual orgy as the statute was evidently intended to punish. The Lovisis, a married couple, advertised their wish "to meet people" and in response a man came to Virginia to meet the Lovisis on several occasions. In one instance the three of them participated in acts of fellatio. Photographs of the conduct were taken by a set camera and the acts were witnessed by the wife's daughters, aged 11 and 13. The pictures were carried by them to school.
Although a questionable law is not removed from question by the lapse of any prescriptive period, the longevity of the Virginia statute does testify to the State's interest and its legitimacy. It is not an upstart notion; it has ancestry going back to Judaic and Christian law.[2]*1203 The immediate parentage may be readily traced to the Code of Virginia of 1792.[3] All the while the law has been kept alive, as evidenced by periodic amendments, the last in the 1968 Acts of the General Assembly of Virginia, c. 427.
In sum, we believe that the sodomy statute, so long in force in Virginia, has a rational basis of State interest demonstrably legitimate and mirrored in the cited decisional law of the Supreme Court. Indeed, the Court has treated as free of infirmity a State law with a background similar to the Virginia enactment in suit. Wainwright v. Stone, 414 U.S. 21, 94 S. Ct. 190, 38 L. Ed. 2d 179 (1973).
The prayers for a declaratory judgment and an injunction invalidating the sodomy statute will be denied.
MERHIGE, District Judge (dissenting).
I am in full accord with the majority as to their conclusion that this action does not fit within the compass of Fed. R.Civ.P. 23. Regretfully, however, my views as to the constitutionality of the statute in question, as it applies to consenting adults acting in the privacy of their homes, does not conform with theirs. In my view, in the absence of any legitimate interest or rational basis to support the statute's application we must, without regard to our own proclivities and reluctance to judicially bar the state proscription of homosexuality, hold the statute as it applies to the plaintiffs to be violative of their rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The Supreme Court decision in Griswold v. Connecticut, 381 U.S. 479, 499, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), is, as the majority points out, premised on the right of privacy, but I fear my brothers have misapplied its precedential value through an apparent over-adherence to its factual circumstances.
The Supreme Court has consistently held that the Due Process Clause of the Fourteenth Amendment protects the right of individuals to make personal choices, unfettered by arbitrary and purposeless restraints, in the private matters of marriage and procreation. Roe v. Wade, 410 U.S. 113, 153, 169, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); accord Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973). See also Griswold v. Connecticut, supra, 381 U.S. 479, 498, 85 S. Ct. 1678 (Harlan, J., concurring). I view those cases as standing for the principle that every individual has a right to be free from unwarranted governmental intrusion into one's decisions on private matters of intimate concern. A mature individual's choice of an adult sexual partner, in the privacy of his or her own home, would appear to me to be a decision of the utmost private and intimate concern. Private consensual sex acts between adults are matters, absent evidence that they are harmful, in which the state has no legitimate interest.[1]
To say, as the majority does, that the right of privacy, which every citizen has, is limited to matters of marital, home or family life is unwarranted under the law. Such a contention places a distinction in marital-nonmarital matters which is inconsistent with current Supreme Court opinions and is unsupportable.
In my view, the reliance of the majority on Mr. Justice Harlan's dissenting statement in Poe v. Ullman, 367 U.S. *1204 497, 553, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961), is misplaced. An analysis of the cases indicates that in 1965 when Griswold, which invalidated a statute prohibiting the use of contraceptives by married couples, was decided, at least three of the Court,[1a] relying primarily on Mr. Justice Harlan's dissent in Poe v. Ullman, and Mr. Justice Harlan himself, would not have been willing to attach the right of privacy to homosexual conduct. In my view, Griswold applied the right of privacy to its particular factual situation. That the right of privacy is not limited to the facts of Griswold is demonstrated by later Supreme Court decisions. After Griswold, by virtue of Eisenstadt v. Baird, 405 U.S. 430, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the legal viability of a marital-nonmarital distinction in private sexual acts if not eliminated, was at the very least seriously impaired. In Eisenstadt, supra, the Court declined to restrict the right of privacy in sexual matters to married couples:
Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 405 U.S. at 453, 92 S.Ct. at 1038.
See also, Lovisi v. Slayton, 353 F. Supp. 620, 625 (E.D.Va.1973).[2]
In significantly diminishing the importance of the marital-nonmarital distinction, the Court to a great extent vitiated any implication that the state can, as suggested by Mr. Justice Harlan in Poe v. Ullman, forbid extra-marital sexuality, and such implications are no longer fully accurate.
It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. 367 U.S. 498, at 553, 81 S. Ct. 1752, at 1782 (1961) (Harlan, J., dissenting).
Griswold, supra, in its context, applied the right of privacy in sexual matters to the marital relationship. Eisenstadt, supra, however, clearly demonstrates that the right to privacy in sexual relationships is not limited to the marital relationship. Both Roe, supra, and Eisenstadt, supra, cogently demonstrate that intimate personal decisions or private matters of substantial importance to the well-being of the individuals involved are protected by the Due Process Clause. The right to select consenting adult sexual partners must be considered within this category. The exercise of that right, whether heterosexual or homosexual, should not be proscribed by state regulation absent compelling justification.
This approach does not unqualifiedly sanction personal whim. If the activity in question involves more than one participant, as in the instant case, each must be capable of consenting, and each must in fact consent to the conduct for the right of privacy to attach. For example, if one of the participants in homosexual contact is a minor, or force is used to coerce one of the participants to yield, the right will not attach. Towley v. Peyton, 303 F. Supp. 581 (W.D.Va. 1969); Hughes v. State, 14 Md.App. 497, 287 A.2d 299 (1972). Similarly, the right of privacy cannot be extended *1205 to protect conduct that takes place in publicly frequented areas. Smayda v. United States, 352 F.2d 251 (9th Cir. 1965); Lovisi v. Slayton, supra, 363 F. Supp. 620 (E.D.Va.1973). However, if the right of privacy does apply to specific courses of conduct, legitimate state restriction on personal autonomy may be justified only under the compelling state interest test. See Roe v. Wade, supra, 410 U.S. 113, 215-18, 93 S. Ct. 705 (Douglas, J., concurring).
Plaintiffs are adults seeking protection from the effects of the statute under attack in order to engage in homosexual relations in private. Viewing the issue as we are bound to, as Mr. Justice Blackmun stated in Roe v. Wade, supra, at 116, 93 S.Ct. at 709, "by constitutional measurement, free of emotion and predilection," it is my view that they are entitled to be protected in their right to privacy by the Due Process Clause.[3]
The defendants, represented by the highest legal officer of the state, made no tender of any evidence which even impliedly demonstrated that homosexuality causes society any significant harm. No effort was made by the defendants to establish either a rational basis or a compelling state interest so as to justify the proscription of § 8.1-212 of the Code of Virginia, presently under attack.[4] To
suggest, as defendants do, that the prohibition of homosexual conduct will in some manner encourage new heterosexual marriages and prevent the dissolution of existing ones is unworthy of judicial response. In any event, what we know as men is not forgotten as judges it is difficult to envision any substantial number of heterosexual marriages being in danger of dissolution because of the private sexual activities of homosexuals.
On the basis of this record one can only conclude that the sole basis of the proscription of homosexuality was what the majority refers to as the promotion of morality and decency. As salutary a legislative goal as this may be, I can find no authority for intrusion by the state into the private dwelling of a citizen. Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) teaches us that socially condemned activity, excepting that of demonstrable external effect, is and was intended by the Constitution to be beyond the scope of state regulation when conducted within the privacy of the home. "The Constitution extends special safeguards to the privacy of the home, . . . ." United States v. Orito, 413 U.S. 139, 43 S. Ct. 2674, 37 L. Ed. 2d 513 (1973).[5] Whether the guarantee of personal privacy springs from the First, Fourth, Fifth, Ninth, the penumbra of the Bill of Rights, or, as I believe, in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, the Supreme Court has made it clear that fundamental rights of such an intimate facet of an individual's life as sex, absent circumstances warranting intrusion by the state, are to be respected. My brothers, I respectfully suggest, have by today's ruling misinterpreted the issue the issue centers not around morality or decency, but the constitutional right of privacy.
I respectfully note my dissent.
NOTES
[1] Plaintiffs would cast their complaint as a class action on behalf of themselves, as well as of all other homosexuals similarly situated, against all local officers, in addition to the defendants, who might prosecute plaintiffs and their class. Initially the court allowed the case to proceed as a tentative class action and full discovery was granted and obtained of all actual and latent defendants. Now, however, our judgment is that this case does not fit within the compass of F.R.Civ.P. 23. The question of class action vel non is one reserved to the discretion of the District Court. City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 298 (2 Cir. 1969). The prosecution of separate actions by or against individual members of the alleged classes would not create a risk of inconsistent or varying adjudications with respect to individual members of the class. F.R.Civ.P. 23(b)(1)(A). This is because the Attorney for the Commonwealth for the City of Richmond, as a party defendant, will be bound at future local trials by an adjudication upon the validity of the statute, and the Attorney General of Virginia will likewise be bound thereby on a future appeal from a prosecution anywhere in Virginia. In our judgment, therefore, the benefits which would justify proceeding as a class action will be realized without resort to that procedure.
[2] Leviticus 18:22: "Thou shalt not lie with mankind, as with womankind: it is abomination." Again, 20:13: "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them"
IV. Cooley's Blackstone's Commentaries on the Laws of England (1753) § 216.
[3] "Sodomy" was used in the earlier laws interchangeably with buggery and other "unnatural sex acts". Davis, Criminal Law. (1838) p. 133.
[1] See Cotner v. Wenry, 394 F.2d 873 (7th Cir. 1968) (dicta); Buchanan v. Batchelor, 308 F. Supp. 729 (N.D.Tex.1970), rev'd on other grounds sub nom, Wade v. Buchanan, 401 U.S. 989, 91 S. Ct. 1221, 28 L. Ed. 2d 526 (1971); State v. Elliott, 539 P.2d 207 (N.M. Ct.App., 1975).
[1a] Griswold v. Connecticut, supra, 381 U.S. 479, 486, 85 S. Ct. 1678 (1964) (Goldberg, J., with whom Chief Justice Warren and Brennan, J., join, concurring).
[2] Lovisi v. Slayton, argued before a three member panel of the Court of Appeals for this Circuit, is currently awaiting argument before the Court en banc.
[3] At least two state courts have reached a similar conclusion. United States v. Doe, Cr.Nos. 21860-71, 37025-72 (Superior Ct. D.C., Feb. 21, 1973); People v. Schwartz (Superior Ct. of Cal., Los Angeles County, Sept. 11, 1972).
[4] See, Note, The Constitutionality of Laws Forbidding Private Homosexual Conduct, 72 Mich.L.Rev. 1613 (1975), for discussion on the lack of empirical data on adverse effect of homosexuals on the social system.
[5] See also Ravin v. State, 537 P.2d 494 (Alaska 1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2751285/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
HILLTOP SUMMIT CONDOMINIUM : No. 147 MM 2014
ASSOCIATION, :
:
Respondent :
:
:
v. :
:
:
KENNY HOPE, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 13th day of November, 2014, the Petition for Leave to File
Petition for Allowance of Appeal Nunc Pro Tunc and the Application for Leave to File an
Offer of Proof are DENIED. | 01-03-2023 | 11-14-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1569605/ | 57 F.2d 769 (1932)
COLORADO MILLING & ELEVATOR CO.
v.
HOWBERT, Collector of Internal Revenue.
No. 575.
Circuit Court of Appeals, Tenth Circuit.
March 28, 1932.
Rehearing Denied May 14, 1932.
James L. Goree, of Denver, Colo. (William V. Hodges and D. Edgar Wilson, both of Denver, Colo., on the brief), for appellant.
Ralph L. Carr, U. S. Atty., of Denver, Colo. (Ivor O. Wingren, Asst. U. S. Atty., of Denver, Colo., on the brief), for appellee.
Before LEWIS and COTTERAL, Circuit Judges, and KENNAMER, District Judge.
KENNAMER, District Judge.
This is an appeal from a judgment dismissing an action brought against the collector of internal revenue by the Colorado Milling & Elevator Company to recover $15,196.87, with interest from March 8, 1923, representing an amount paid as interest on unpaid income and excess profits taxes for the fiscal year ending June 30, 1917, which were erroneously assessed against appellant.
This case was not tried on its merits, but demurrers were sustained to the original complaint and the amendment thereafter filed thereto. Appellant filed a second amended complaint, which the collector of internal revenue moved to strike from the files. The motion to strike was sustained; appellant declined to plead further and the action was dismissed.
Appellant's second amended complaint contained two causes of action. The first cause of action alleged that subsequent to September 11, 1919, additional income and excess profits taxes, amounting to $465,974.35, were assessed against appellant for the fiscal year ending June 30, 1917. Appellant, within the time allowed by law, filed claim for abatement of the entire amount of the *770 additional assessments. The Bureau of Internal Revenue then reduced such additional taxes to $299,199.83 and the appellee demanded that appellant pay the same, together with $78,564.70 interest thereon. Appellant paid the taxes, amounting to $299,199.83, and made a written offer to pay appellee interest upon the true amount of such additional taxes for the year in question as might be due from appellant, at the rate of one-half of one per cent. per month from the date the same became due until March 8, 1923, when it was paid. The offer was set out in the complaint in full. It tenders $50,103.42 in settlement of the interest, stating that the amount so offered in compromise represents a sum computed at one-half of one per cent. per month upon the amount of the additional taxes then thought to be due. The offer in compromise and the tender were duly accepted by the Commissioner of Internal Revenue, by and with the consent of the Secretary of the Treasury.
Thereafter, appellant filed a claim for refund of $91,175.25 of the taxes, and a refund of a proportionate part of the interest payment, which claim was allowed in part, and a refund of $90,750.29 of the principal amount was allowed and paid to appellant. The claim for refund was disallowed in so far as it sought to recover the proportionate part of the interest payment amounting to $15,196.87. The offer in compromise which was included in the second amended complaint, is set out in the margin.[1]
The second cause of action of the second amended complaint sets forth the facts alleged in the first cause of action, except that it does not mention the offer in compromise, but alleges that appellant paid as interest on additional taxes assessed, the sum of $50,103.42, whereas the lawful interest charge upon the additional taxes, as the same was finally determined, was $34,906.55, and that by reason thereof the appellee became indebted to appellant in the sum of $15,196.87, for which appellant prayed judgment.
The second amended complaint was stricken from the file upon the motion of the appellee upon the ground that it was identical with the original complaint as amended on file in the cause.
The question for determination is whether the second amended complaint of appellant *771 set forth facts sufficient to constitute a cause of action in its behalf against the collector of internal revenue.
If a cause of action pleaded is merely a repetition of another cause of action set up in the same complaint, it may be stricken on motion. Proper v. John Bene & Sons, Inc. (D. C.) 295 F. 729. However, the court should proceed with extreme caution in striking a pleading.
In the instant case the motion to strike must be treated as a demurrer, in conformity with the practice of the state courts, as the motion to strike was sustained because the second amended complaint was identical with the original complaint as amended, to which a demurrer was sustained for the assigned reason that it did not state facts sufficient to constitute a cause of action.
The allegations in appellant's second amended complaint are, for the purpose of testing the pleading on demurrer, taken as true, Graig v. Gage (D. C.) 25 F.(2d) 326; Goldsmith v. Standard Chemical Co. (C. C. A.) 23 F.(2d) 313; Lyons v. Reinecke (C. C. A.) 10 F.(2d) 3; United States v. Skinner & Eddy Corporation (D. C.) 5 F.(2d) 708, as well as facts that may be inferred therefrom by reasonable and fair intendment, Moore v. East Tenn. Telephone Co. (C. C. A.) 142 F. 965.
The second amended complaint of appellant recites the assessment of additional income and excess profits taxes, the computation of interest thereon, the compromise of the interest, and the subsequent refund of $90,750.29 of the principal amount, which constituted an overassessment. The offer in compromise very plainly discloses the intention of the parties, and shows that, as expressly stated in the offer, the amount of interest offered in compromise represented a sum computed at the rate of one-half of one per cent. per month. The offer in compromise further discloses that the interest at the rate of one-half of one per cent. per month was computed upon the sum of $299,199.83. There can be no doubt as to the intention of the parties in making the offer in compromise; and there can likewise be no question but that the offer was computed upon the theory and proposition that the sum of $299,199.83 was the correct amount of taxes due by appellant. It may reasonably be inferred from the allegations of the second amended complaint that the additional assessment was made by the collector of internal revenue in good faith, and in the honest belief that the additional assessment represented the true and correct amount of income and excess profits taxes owed by appellant. It may likewise be inferred that the taxpayer believed in good faith that the assessment of the additional income taxes was due by it, and that the assessment of $299,199.83 was the sum fixed by the parties as the amount due, and upon this sum the interest was computed at the rate of one-half of one per cent. per month, which rate constituted the compromised and agreed interest charge upon the sum due by the taxpayer. These inferences may legitimately be drawn from the allegations contained in the second amended complaint, and it clearly appears from the allegations that both, the collector of internal revenue and appellant, were mistaken about the fact as to the amount of income and excess profits taxes owed by the taxpayer.
It is insisted by appellee that as a compromise had been made regarding the payment of interest upon the additional income and excess profits taxes, the compromise must stand regardless of the refund. Appellee insists that as the full amount of interest claimed was not paid by appellant, but a smaller amount was agreed upon in compromise, the interest item is not the subject of further litigation, as the agreement and compromise of the parties is conclusive and final.
A compromise is a contract, and compromises are favored in the law. Such a contract is subject to construction by a court as to its meaning and validity and consideration. Big Diamond Mills Co. v. United States (C. C. A.) 51 F.(2d) 721, and cases cited. Where a settlement is entered into or a compromise is made under a mutual mistake as to a material fact, relief may be had. 12 C. J. 351, § 49 and cases cited. A mutual mistake of fact generally affords relief from the performance of contracts, and a contract of compromise stands in this regard upon the same plane as other agreements. If one party knows of the mistake and keeps silent, the party who is misled by the mistake is entitled to have the settlement vacated. Armour & Co. v. Renaker (C. C. A.) 202 F. 901. We may reasonably infer that in the instant case there was a mutual mistake which resulted in the computation of interest in the amount of $50,103.42. If the true and correct amount of the taxes had been determined instead of the erroneous assessment, a lesser sum would have been agreed upon, as the pleading in *772 the cause embodying the offer in compromise clearly shows that the offer was the payment of interest at the rate of one-half of one per cent. per month upon the true amount due. The mutual mistake of a material fact, as disclosed by the second amended complaint, is sufficient in law to have afforded appellant relief from the compromise and to have entitled it to the return of the sum paid by it excessively as interest.
The compromise contract, which was well pleaded in the second amended complaint, is subject to construction by the courts as to its meaning, validity, and consideration in view of the language employed. Big Diamond Mills Co. v. United States (C. C. A.) 51 F.(2d) 721. The compromise clearly indicates that the parties intended to pay interest at the rate of one-half of one per cent. per month upon the amount of taxes due and payable. This was plainly stated in the offer of compromise; the computation of the interest at the rate expressed in the offer was upon the amount of taxes erroneously assessed.
A case similar upon its facts, but not presenting an offer in compromise disclosing the intention of the parties to compromise the interest at the rate of one-half of one per cent. per month as clearly as the instant case, was considered by the Eighth Circuit Court of Appeals in Big Diamond Company v. United States, supra. That court held that the implied condition that if the tax itself is returned as unwarranted, the interest paid under the compromise agreement will also be returned. It was held that the interest was merely a part of the tax, made so by section 14 (a) of the Revenue Act of 1916 (39 Stat. 756, 772), which remained in force under Revenue Act of 1917 (40 Stat. 300), and by section 250 (e) of the Revenue Act of 1921 (42 Stat. 227, 264, 266), being the act in effect when the interest payments were made. The liability was held to be single, the tax and the penalty being held a single liability.
In our opinion, the cited case properly construes the contract of compromise of interest under circumstances similar to those presented herein. The instant case presents a contract capable of but one construction, to wit, that the parties intended to compromise the interest at the rate of one-half of one per cent. per month upon the amount of taxes due.
We therefore conclude that the second amended complaint of appellant stated a cause of action, and that the trial court erred in striking it from the files and in dismissing the cause. The judgment of dismissal is reversed and the cause remanded for further proceedings in harmony with the views herein expressed.
NOTES
[1] "Commissioner of Internal Revenue, Washington, D. C. That the Colorado Milling and Elevator Company, a corporation organized and existing under the laws of the State of Colorado, has been charged with a violation of law consisting of a liability for interest accrued on the sum of $299,199.83 which represents the amount of unabated income taxes; that on or about September 12, 1919, assessment and demand was made by the Collector of Internal Revenue for the District of Colorado against taxpayer, the Colorado Milling and Elevator Company, for additional income and profits taxes amounting to $379,943.72, alleged to be due from taxpayer on its return for the fiscal year ending June 30, 1917; that on or about October 29, 1921, assessment and demand was made by said Collector of Internal Revenue against taxpayer for further additional income and profits taxes amounting to $86,030.63 on its return for said fiscal year ending June 30, 1917, the said two additional assessments for said fiscal year thereby amounting to $465,974.35; that believing said additional taxes so assessed were illegal, taxpayer filed Claims for Abatement of the entire amount of said assessments and thereafter presented evidence and argument in support of its contentions to the Bureau of Internal Revenue; that the amount of the true and lawful liability for income and excess profits taxes against said taxpayer for said fiscal year ending June 30, 1917, was finally determined by the Income Tax Unit, Bureau of Internal Revenue, and taxpayer notified thereof by letter dated December 23, 1922, and the aforesaid additional income and profits `taxes reduced from the said sum of $465,974.35 to $299,199.83;' that taxpayer received further notice of said adjusted additional tax from the Collector of Internal Revenue by letter, dated February 26, 1923, and the interest computed by said Collector on said additional liability of $299,199.83 amounts to $78,564.70 which said interest represents 26¼ per cent. of the principal or additional tax as adjusted; that the computation of said interest by the Collector is summarized in his letter as follows:
Total tax ...................... $299,199.83
Total interest at 1% ........... 56,922.57
Total interest at ½% ........... 21,642.13
___________
$377,764.53
"That of the total interest stated above, $56,922.57, computed on said principal of $299,199.83 at the rate of 1 per cent. per month for that part of the period of time beginning with the date of filing said Claims for Abatement to November 24, 1921; that deponent verily believes that the amount of interest computed as above shown and which is in the nature of a penalty is wholly disproportionate to the amount of principal on which it is computed and thereby works an undue hardship upon this taxpayer. That taxpayer, The Colorado Milling and Elevator Company, since the filing of its Claims for Abatement, has been very diligent in presenting its evidence and argument and has in all ways sought to induce as expeditious a determination as possible; that on numerous occasions deponent and taxpayer's representatives have called personally at the offices of the Income Tax Unit in Washington, urging that a determination of taxpayer's true and lawful liability be made at the earliest possible date.
"The total amount of interest computed by the Collector as aforesaid amounts to $78,564.70; that having been advised of taxpayer's privilege to submit an Offer in Compromise of the liability incurred, taxpayer hereby voluntarily tenders the sum of $50,103.42 as the amount of interest to be added to the aforesaid additional tax liability of $299,199.83. That the amount of interest hereby offered in compromise represents a sum computed at the rate of ½ of one per cent. per month.
"It is my understanding that this offer does not relieve me from the liability incurred unless and until the offer is actually accepted, and that the offer can not be considered as having been accepted until the date on which formal notice of acceptance thereof is signed by the Commissioner." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569610/ | 57 F.2d 840 (1932)
MOORE
v.
UNITED STATES.[*]
No. 6284.
Circuit Court of Appeals, Fifth Circuit.
April 15, 1932.
*841 E. B. Donnell and E. M. Baynes, both of West Palm Beach, Fla., for appellant.
W. P. Hughes, U. S. Atty., of Jacksonville, Fla., B. R. Cisco, Asst. U. S. Atty.; of Miami, Fla., and Alfred Page, Sp. Asst. to Atty. Gen.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
BRYAN, Circuit Judge.
Appellant, George W. Moore, was convicted upon an indictment which charged him with resisting with a deadly weapon a prohibition agent, Robert K. Moncure, in the execution of a search warrant which it was alleged authorized a search of his dwelling house and the seizure of any intoxicating liquor found on his premises. The indictment was drawn under 18 USCA § 121, and was demurred to on the ground that it did not charge an offense under that section, but only alleged a violation of 18 USCA § 628, which authorizes a maximum punishment of two years in the penitentiary; but the demurrer was overruled, and the court imposed the maximum sentence of ten years authorized by section 121. A motion for continuance, because of the absence of a witness whose testimony it was claimed would be material to the defense, was denied.
It was undisputed that shortly after 6 o'clock p. m. on January 18, 1930, Moore shot and killed Moncure and another prohibition agent named Patterson. Moncure and Patterson and two other prohibition agents, Kugler and McNulty, had gone to Moore's dwelling house for the purpose of searching for and seizing intoxicating liquor. Moncure and Kugler went to the front door, while Patterson and McNulty stationed themselves at the back door. The front door of the house was open, but the screen door to the front porch was closed and fastened. Moore and Moncure were well acquainted with each other, and the former knew that the latter was a prohibition agent. Kugler testified that Moncure rang the doorbell and Moore came out on the front porch; that Moncure then told him he had a search warrant and asked to be let in; that Moore immediately turned back into the house, closed the door, and fired through it, instantly killing Moncure, who in the meantime had forced his way through the screen door. McNulty testified that, after the first shot was fired, Patterson rushed through the back door into the kitchen, where he also was shot and fatally wounded by Moore. In giving his testimony, Moore denied that he heard the doorbell or went out on the front porch. He said that while he was sitting in the living room with his wife and fourteen-year-old daughter he heard a loud noise at the screen door, and, as he got up to investigate, his wife cried out, "Look out George; they are going to shoot you;" that he saw a man in a crouching position in the kitchen; that he shut the front door in order to get to his gun which was behind it, and, as he did so, some one threw his weight against that door, and shouted, "Shoot him, shoot him, shoot him"; that he fired through the front door, then wheeled and shot the man in the kitchen, who turned out to be Patterson; and that he did not know that the people who had surrounded his house were officers. Moore's testimony was corroborated by that of his daughter; but his wife was not permitted to testify, because as was held by the trial court, she was not a competent witness. A police officer called by the defense testified that, when he arrived at Moore's *842 house, shortly after the shooting, he saw Patterson's pistol lying on the kitchen cabinet, over which Patterson was leaning, and that the pistol was cocked. The officer's testimony was not contradicted, and it was the same as the motion for continuance alleged the absent witness would give.
The affidavit for a search warrant stated that intoxicating liquor was located in Moore's dwelling house in violation of the National Prohibition Act (27 USCA); and, for the purpose of showing such liquor was being sold, it was stated that affiant had purchased therein on that day half a case of whisky. The search warrant recited the substance of the affidavit, and commanded a search and seizure, but in the daytime only. That warrant was issued and delivered to the prohibition agents at 5:44 or 5:46 p. m. on January 18, 1930. The sun set on that day at 5:52, and the commissioner who issued the warrant, warned the officers that it did not authorize a search or seizure at night. According to the testimony of Kugler and McNulty, they arrived at Moore's house not later than five minutes after 6, but, according to witnesses for the defense, they did not get there until about 6:15 p. m. Witnesses for the government testified that immediately after the shooting one's features could be recognized as far as across the street in front of Moore's house by natural daylight, and a witness who made experiments three days later was permitted to testify, over appellant's objection, that he could readily recognize the features of a man at a greater distance by natural daylight from five to twenty minutes past 6 p. m. Evidence was admitted, also over appellant's objection, to the effect that about a year before he was killed Moncure made a search of the same premises when Moore was present, but the court admitted that evidence for the limited purpose of showing that Moore knew Moncure was an officer. The court charged the jury that the search warrant was valid, but could be lawfully executed in the daytime only; that daytime continued beyond the setting of the sun as long as there was sufficient unaided light from the sun to recognize a man's features at a reasonable distance; and that, if the attempt to execute the search warrant was made after this interval had passed, Moore should be acquitted. Upon the assumption that the warrant was served in the daytime, as defined by it, the court charged the jury that Moore would not be guilty if he fired upon the officers for the bona fide purpose of protecting himself or his home, but that he would be guilty if he recognized Moncure and killed him without giving him an opportunity to serve the search warrant and make known his mission. In commenting upon Moore's testimony, the court asked the jury to consider whether it would have been more reasonable for him to have shot Patterson first, and why he used his gun just as soon as some one appeared on his premises. As to the testimony of Moore's daughter, the jury was invited to consider the probability that she had been coached, but "to deal charitably with her." These comments upon Moore's testimony were excepted to as being argumentative. No exception was taken to what the court had to say about the daughter's testimony, and this part of the charge was practically withdrawn in response to a suggestion that it was not justified by the evidence. Appellant's request to charge that daytime ended with sundown, and consequently that the attempted search was unlawful, was denied. All his other requests were also denied, but such of them as in our opinion were proper were given in substance by the court in its general charge.
The errors assigned are based upon the overruling of the demurrer to the indictment; the denial of the motion for continuance; the above-mentioned rulings and comments on the evidence; and the refusal to give the requested charges.
It was not error to overrule the demurrer. The only practical difference between sections 628 and 121 of title 18 U. S. Code (18 USCA §§ 121, 628) is that the former authorizes a maximum imprisonment of two years for the offense of knowingly and willfully resisting an officer in the attempt to serve or execute a search warrant, and does not necessarily contemplate the use of a deadly weapon; while the latter expressly punishes the use of a deadly weapon by one making such resistance, and imposes a maximum imprisonment of ten years. The objection could not be appropriately raised by demurrer, since the present indictment would be good under either of the above sections of the Code. The real contention sought to be raised is that the sentence is excessive, and that prohibition agents do not come within the protection of the statute punishing the use of deadly weapons in resisting searches and seizures. In our opinion, the contention is wholly untenable. The National Prohibition Act gives prohibition agents the same protection as was conferred by law at the date of its enactment in the enforcement of existing laws relating to the manufacture and sale of intoxicating liquors. 27 *843 USCA § 45. The section under which the indictment was drawn protects any person authorized to make searches and seizures from unjustifiable assaults with deadly weapons, and therefore includes prohibition agents within its protection. Leininbach v. United States (C. C. A.) 38 F. (2d) 442.
Appellant was not injured by the refusal of the court to grant his motion for continuance; for the evidence which he claimed the absent witness would give was supplied by another witness at the trial and was not controverted. The search warrant and supporting affidavit were sufficient to authorize a search of Moore's dwelling house. There was a showing of probable cause, and facts were positively alleged from which no other inference could be drawn than that the dwelling house was then being used for the unlawful sale of intoxicating liquor. The requirements of 27 USCA § 39, were complied with. It was proper for the government to prove that Moore was present at the search of his home on the occasion prior to the one under consideration at the trial without producing a search warrant and showing that it was valid; because the only purpose was to prove that Moncure was within Moore's knowledge a prohibition agent, and as such had the right to break open doors in order to execute the search warrant involved in this case if Moore after notice of his authority and purpose refused him admittance. 18 USCA § 618. That search warrant did not contain the direction that it be served at night; its execution was authorized only in the daytime. It therefore could be lawfully served only in the daytime. 18 USCA § 620. We are of opinion that the court correctly charged that daytime did not end at sundown, but continued as long as there was sufficient light or reflection from the sun to enable one readily to recognize a man's features at a reasonable distance. 4 Cooley's Blackstone § 224; 2 Bishop's Cr. Law § 101; Bishop on Statutory Crimes § 276; Trull v. Wilson, 9 Mass. 154; Linnen v. Banfield, 114 Mich. 93, 72 N. W. 1; State v. Bancroft, 10 N. H. 105; Atlanta Enterprises v. Crawford (D. C.) 22 F. (2d) 834. It follows that in our view the testimony of the witness who made the experiments between five and twenty minutes after 6 p. m. three days after the attempted search of Moore's house, under similar weather conditions, was admissible.
It does not appear to us that the court's comment on Moore's use of the gun and why he had it was reversible error. It was not a one-sided comment, but was in favor of Moore if in shooting the prohibition agents his purpose was to protect his home, and against him if he was attempting to prevent a lawful search. It would have been better if the District Judge had omitted from his charge upon the facts the intimation that Moore's daughter was repeating a story that she had been told at home. But appellant's counsel seemed to have been satisfied with the judge's subsequent statement, as they took no exception to his remarks on this phase of the evidence as finally modified. We are not of opinion that appellant's counsel have sustained the position taken in their brief that the verdict of the jury was influenced by the bias and prejudice which they contend the District Judge displayed during the trial.
The judgment is affirmed.
NOTES
[*] Rehearing denied June 3, 1932. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568654/ | 308 F. Supp. 489 (1969)
KIKI UNDIES CORPORATION, Plaintiff,
v.
PROMENADE HOSIERY MILLS, INC., Defendant.
No. 66 Civ. 747.
United States District Court S. D. New York.
July 29, 1969.
Memorandum November 26, 1969.
*490 Kenyon & Kenyon, New York City, for plaintiff (Charles Brainard, New York City, of counsel).
Bader & Bader, New York City, for defendant (I. Walton Bader, New York City, of counsel).
INTERLOCUTORY JUDGMENT AND ORDER APPOINTING SPECIAL MASTER
MacMAHON, District Judge.
This cause having been considered by this Court upon the pleadings, the affidavits submitted on Motion for Summary Judgment, and the evidence presented at trial, and upon the decision of the United States Court of Appeals for the Second Circuit filed on May 29, 1969, and its mandate, it is:
Ordered, adjudged and decreed:
1. That the plaintiff, Kiki Undies Corp., has used and is using, in connection with its manufacture, sale and distribution of ladies' wearing apparel and garments in commerce, the following trademarks: KIKI, KIKI KONTROL; KIKI MAGIC; KIKI SATINETTE and KIKI DELUXE.
2. That the plaintiff duly applied for and registered said trademarks on the Principal Register of the United States Patent Office. That United States Principal Register Trademark Registrations Nos. 709,385 for KIKI; 767,232 for KIKI KONTROL; 767,242 for KIKI MAGIC; 774,624 for KIKI SATINETTE and 818,716 for KIKI DELUXE were duly and legally issued and are valid; and that plaintiff, Kiki Undies Corp., has been and is the lawful owner of all right, title and interest in and to each of said registrations.
3. That defendant, Promenade Hosiery Mills, Inc. (now by change of name Promenade Mills, Inc.) has infringed the aforesaid registered trademarks by using the term Kiki as a trademark, without consent, in commerce in connection with the selling, offering for sale, distributing and advertising ladies' wearing apparel and garments.
*491 4. That a Writ of Perpetual Injunction (attached hereto as an Exhibit to this Interlocutory Judgment) issue out of and under the seal of this Court directed to the said defendant, Promenade Hosiery Mills, Inc., its successors, assigns, officers, agents, attorneys, employees, associates and privies, enjoining and restraining them and each of them from directly or indirectly infringing the aforesaid registered trademarks.
5. That, pursuant to 15 U.S.C. § 1117 (1), the plaintiff recover defendant's profits from the defendant for defendant's acts of infringement which include, by way of example and not by way of limitation, the acts specified in paragraph 3 above.
6. That the matter be, and hereby is, referred to ARNOLD BAUMAN, ESQ., 45 Rockefeller Plaza, New York, N. Y. 10020, as Special Master, pursuant to Fed.R.Civ.P. 53, to take an accounting and hear and determine the amount of defendant's profits by reason of its sales of Kiki marked products, and the Special Master is directed to report to the Court within ninety (90) days from the date of this order.
7. That the Special Master be, and he hereby is, vested with all the powers provided in Fed.R.Civ.P. 53 and shall conduct such hearings and make such findings and reports as may be required by said rule and the applicable rules of this Court.
8. That the defendant, its officers, agents and employees are directed to attend before the Special Master, at such time as he shall direct, and to produce before him all books, papers and documents as he may direct, and to submit to such oral examination as he may direct, and the Special Master shall have the power:
(i) to order discovery under Fed.R. Civ.P. 26 through 37;
(ii) to order the production, inspection or copying of any relevant documents pursuant to Fed.R.Civ.P. 34;
(iii) to rule upon the form of any question addressed to a witness;
(iv) to rule in the first instance on any objection to any question made by or on behalf of any party or a witness, and upon holding any such objection to disallow the question;
(v) to direct in the first instance that a party or witness shall answer any question found unobjectionable by him;
(vi) to rule in the first instance upon any objection to any question made on the ground that the answer to such question might cause the disclosure of a confidential communication between attorney and client or matter otherwise protected from disclosure;
(vii) to order in the first instance such other further or different relief as he deems necessary, just or equitable in the premises.
9. That any action or ruling made by the Special Master shall be subject to review by this Court upon the written application of any party. Such application shall be made upon reasonable notice and shall be directed to the undersigned as judge, and control of this cause is retained by the undersigned for the purpose of ruling upon such applications.
10. That the compensation to be allowed the Special Master shall be fixed by the Court, and the expenses of and incidental to the proceedings before the Special Master, including his compensation, stenographer's fees and other disbursements be charged to and paid by the plaintiff, and all such sums so paid shall be included by plaintiff as taxable costs in its final judgment against the defendant.
WRIT OF PERPETUAL INJUNCTION
Promenade Hosiery Mills, Inc. (now by change of name Promenade Mills, Inc. and hereinafter called defendant), its successors or assigns, its officers, agents, servants, employees, attorneys and all other persons in active concert or participation with it or any of them who receive actual notice or knowledge of this Injunction by personal service or otherwise, *492 are perpetually ordered and are perpetually restrained and enjoined as follows:
ENJOINED FROM:
(a) Using the term Kiki, however spelled, whether capitalized, abbreviated, printed or stylized, with or without a hyphen, whether used alone or in combination with any other word or words, whether used in caption, text or otherwise, or orally, or any reproduction, counterfeit, copy or colorable imitation thereof in connection with the sale, offering for sale, distribution or advertising of any goods or services or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive;
(b) Applying the term Kiki (as defined in paragraph (a)) or any reproduction, counterfeit, copy or colorable imitation thereof to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used, or capable of being used, or used in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive;
(c) Using the term Kiki (as defined in paragraph (a)) on or in connection with the sale, offering for sale, distribution or advertising of leotards, tights, pantyhose, hosiery, headbands, and the like.
(d) Using the term Kiki (as defined in paragraph (a)) on or in connection with any ladies' garments or ladies' wearing apparel product.
(e) Disparaging or derogating the term Kiki (as defined in paragraph (a)) as a trademark of the plaintiff, or suggesting to anyone that plaintiff does not own it.
(f) Making, having made for it, selling, distributing or disposing of in any manner any advertising or promotional material including ad mats, racks, rack headers, point of sale devices, catalogs, letters or sales brochures using the term Kiki (as defined in paragraph (a)) for or in connection with any of the goods listed in paragraph (c) above, or any ladies' wear garments or ladies' wearing apparel, or any goods on which use of the term Kiki would be likely to cause confusion, mistake, or to deceive.
(g) Filling any order or advising others of any order which specifies any of the goods listed in paragraph (c) above, or any other goods sold, offered for sale, distributed or advertised by defendant or plaintiff or any ladies' wear goods or ladies' garments and which order uses the term Kiki (as defined in paragraph (a)) in relation to said goods.
(h) Inducing or encouraging any third party to use the term (as defined in paragraph (a)) on or in connection with the sale, offering for sale, distribution or advertising of any product listed in paragraph (c) or any ladies' wear product or ladies' garment.
(i) Aiding, abetting, encouraging or inducing another to do any of the acts herein enjoined.
ORDERED TO:
(j) Use best efforts to avoid making any financial or other contribution, directly or indirectly, toward any advertisement, publicity or other form of public announcement which contains the term Kiki (as defined in paragraph (a)) for any of the goods listed in paragraph (c) above, or for any other ladies' wear goods or ladies' garments, or in any way inducing anyone to create, publish, issue, purchase, sell, use or contribute toward such an advertisement.
(k) Respond to each order, letter, or inquiry which specifies any of the goods listed in paragraph (c) above, or any other goods sold, offered for sale, distributed or advertised by defendant or plaintiff or any ladies' wear goods and which uses the term Kiki (as defined in paragraph (a)) in relation to said goods, by mailing in reply, registered or certified mail, return receipt requested, to the originator of said order, letter or inquiry, a letter in the form annexed hereto *493 as Exhibit A. A copy of each such letter shall be mailed simultaneously with the original or ribbon copy to the plaintiff, and upon receiving the signed U. S. Mail Receipt indicating delivery, the defendant shall mail, within two business days, said receipt to the plaintiff.
(l) Deliver up to plaintiff, at plaintiff's place of business, within thirty (30) days after service of this Injunction all backing sheets, labels, signs, prints, packages, wrappers, receptacles, letterheads, order forms, billheads, displays, ad mats, racks, rack headers, point of sale devices, catalogs, brochures and any other promotional advertising or other matter in its possession, custody or control on which the said term Kiki (as defined in paragraph (a)) appears for products sold, offered for sale, distributed or advertised by defendant including plates, molds and matrixes for making same.
(m) Exercise its best efforts to withdraw from its customers, retailers and all others all of the materials specified in the above paragraph (l) hereof, including offering reimbursement for same, and deliver the same to plaintiff, at plaintiff's place of business, for destruction. This shall be a continuing effort. If a violation of this paragraph shall come to the attention of plaintiff, plaintiff shall call defendant's attention to such violation; and defendant shall take affirmative action to obtain cessation of such violation and shall advise plaintiff of what action it has taken.
(n) File with the Court and serve on plaintiff within thirty (30) days after service of this Injunction a report in writing, under oath, setting forth in detail the manner and form in which defendant has complied with this Injunction by that date, and again within six (6) months after such service a final report shall be filed and served setting forth in detail the manner and form in which defendant has fully complied with this Injunction.
EXHIBIT A
"Registered or Certified Mail,
Return Receipt Requested"
"Dear Sir:
Your recent communication requested that we supply you with a `Kiki' product.
Kiki products are sold exclusively by the Kiki Undies Corp., 36 East 31st Street, New York, New York.
There has been a Federal Court injunction prohibiting our further use of this word in any form. We enclose a copy of the injunction.
We sell [a description of product sold by Promenade Hosiery Mills, Inc. to be inserted]. If you wish to order any of these products, we would be happy to supply them to you. Thank you."
"cc: Kiki Undies Corp.
36 E. 31st St.
New York, N. Y."
MEMORANDUM
Defendant moves, pursuant to Rule 60 (b), Fed.R.Civ.P., for an order vacating an interlocutory judgment and permanent injunction entered on July 29, 1969, or, in the alternative, for an order, pursuant to Rule 59(e), Fed.R.Civ.P., altering and amending the interlocutory judgment and permanent injunction. Defendant also moves under Rule 62(a), Fed.R.Civ.P., for an order vacating a writ of execution attaching one of its bank accounts.
This is an action for infringement of plaintiff's trade-mark. The case was tried to the court on April 18, 1968. The court found that the trade-mark was not infringed and dismissed plaintiff's complaint and defendant's counterclaims. Plaintiff appealed from dismissal of its complaint and defendant from dismissal of its counterclaims. The Court of Appeals for the Second Circuit reversed the dismissal of plaintiff's complaint but affirmed the dismissal of defendant's counterclaims, holding that plaintiff's trade-mark was infringed and that plaintiff was entitled to the relief sought. Kiki Undies Corp. v. Promenade Hosiery *494 Mills, Inc., 411 F.2d 1097 (2d Cir. 1969). The Court of Appeals filed its mandate on July 1, 1969 and its corrected mandate on July 24, 1969.
Plaintiff, on July 24, 1969, mailed to the Clerk of this court a proposed interlocutory judgment and a permanent injunction. A copy, on the same day, was mailed to the attorneys for defendant. The Clerk received the papers the following day, July 25, 1969. No objection, counter-judgment or counter-order were submitted, and, on July 27, 1969, we executed the proposed interlocutory judgment and permanent injunction, modified to provide for the appointment of a Special Master to supervise the accounting of profits and necessary discovery.
In support of its motion to vacate, or, in the alternative, to amend the permanent injunction and interlocutory judgment, defendant alleges: (1) the judgment is at variance with the Court of Appeals' decision and mandate, which require only an injunction and not damages; (2) a copy of the proposed judgment and injunction was not received by defense counsel, as provided by Rule 5, Fed.R.Civ.P., and (3) the permanent injunction's mandatory provisions are at variance with the Court of Appeals' mandate which requires only prohibitory relief.
As to its first claim, that the interlocutory judgment provisions relating to damages are void because the Court of Appeals held that plaintiff was only entitled to an injunction, defendant points to the fact that plaintiff, in its brief submitted to the Court of Appeals, stated that it "appeals seeking no damages but only an injunction against the defendant's further use of the Kiki name and trade-mark." Defendant argues that the Court of Appeals cannot review that portion of a judgment not appealed and the court did not, and could not, determine whether plaintiff was entitled to damages.
Plaintiff did, however, make clear in its brief submitted to the Court of Appeals that it was seeking an accounting to recover the profits defendant made by infringing the "Kiki" trademark. The court, in effect, mandated an accounting for profits when it stated that "plaintiff is, therefore, entitled to the relief sought." 411 F.2d at 1101.
Moreover, a plaintiff has a right to an accounting to recover profits, even if he cannot prove actual damages due to direct competition, if defendant deliberately infringed plaintiff's registered mark. Monsanto Chemical Corp. v. Perfect Fit Products Mfg. Co., 349 F.2d 389 (2d Cir. 1965), cert. denied, 383 U.S. 942, 86 S. Ct. 1195, 1198, 16 L. Ed. 2d 206 (1966).
Here, the Court of Appeals, in reversing our finding that plaintiff failed to prove bad faith, in effect, found that defendant deliberately infringed plaintiff's trade-mark. The court stated that the burden was on defendant to prove lack of bad faith and that it failed to do so. 411 F.2d at 1101. The court also pointed out that defendant persisted in the use of the "Kiki" mark, even after being notified by the Patent Office that plaintiff had registered the mark and that defendant's use of it would tend to confuse and deceive. 411 F.2d at 1099. Defendant, therefore, deliberately infringed plaintiff's trade-mark, and plaintiff is entitled, by statute, to an accounting for profits. 15 U.S.C. § 1117; Monsanto Chemical Corp. v. Perfect Fit Products Mfg. Co., supra.
Defendant's second claim, that its counsel did not receive the proposed judgment and order in accordance with Rule 5(a), Fed.R.Civ.P., is, upon examination, totally without merit.
W. Cullen MacDonald, Esq., plaintiff's counsel, mailed to the Clerk of the court, on July 24, 1969, the original proposed interlocutory judgment and permanent injunction. These papers were received by the Clerk's office the following day. Mr. MacDonald certified that a true copy of the papers was mailed to I. Walton Bader, Esq., counsel for defendant. Probably, as Mr. Bader, himself, admitted, *495 the papers were received by his firm but not brought to his attention because of "secretarial problems." Whether Mr. Bader actually received the papers is, however, totally irrelevant.
All papers, here a proposed interlocutory judgment and permanent injunction, that must be served upon a party, must be served upon the attorney, and service may be made by mail. Service is complete upon mailing. Rule 5(b), Fed.R.Civ.P.; Century Theatre Co. v. Title Guaranty Co. of Wisconsin, 289 F.2d 731 (7th Cir. 1961); Porto Transport, Inc. v. Consolidated Diesel Elec. Corp., 21 F.R.D. 250 (S.D.N.Y.1957). Service of these papers was, therefore, accomplished when Mr. MacDonald placed them in the mail.
Defendant's third contention, that the injunction provisions requiring mandatory relief are at variance with the Court of Appeals' opinion and mandate which required only prohibitory relief is also untenable. Defendant cites no authority in support of this proposition, nor does it specify the injunctive clauses which are mandatory, rather than prohibitory. At one point, Mr. Bader refers in his memorandum to "mandatory provisions such as, notification of customers." Presumably, he is referring to the provisions in the injunction requiring defendant to respond to orders specifically referring to the "Kiki" trade-mark by mailing a reply letter explaining that defendant has been enjoined from selling under the "Kiki" trade-mark and that the mark can be used only by plaintiff. Defendant may also be referring to the provision requiring defendant to use its best efforts to withdraw from its customers labels, signs and advertising material bearing the "Kiki" insignia.
An injunction, in trade-mark cases, must be framed to protect plaintiff's right to free enjoyment of its registered mark. The provisions of the injunction are proper if they are reasonably calculated to protect plaintiff against continued violation of its registered mark. 15 U.S.C. § 1116. Perry Knitting Co. v. Meyers, 120 F. Supp. 880 (S.D.N.Y.1954). Here, requiring defendant to notify customers who seek to purchase items under the "Kiki" name that "Kiki" is a registered trade-mark is not only reasonably calculated to protect plaintiff's rights, but also necessary to remedy the deception and confusion caused by defendant's prior illegal use of plaintiff's mark. The clause providing that defendant must use its best efforts to withdraw labels, signs and other insignia bearing the "Kiki" mark is not unduly burdensome, since it requires only good faith compliance, and it is a necessary protection against continued, albeit unintentional, infringement. 15 U. S.C. § 1118.
The other provisions of the injunction, whether they be denominated mandatory or prohibitory, do not impose severe burdens on defendant and are reasonably calculated to prevent future violations of plaintiff's rights and, as such, proper. 15 U.S.C. § 1116.
Defendant, as alternative relief, requests that we amend the judgment to eliminate the clause providing for a Special Master to supervise the accounting and necessary discovery. The Federal Rules provide that references to a Master are the exception and not the rule, except "in matters of account." Fed.R. Civ.P. 53(b). An accounting here will not deal with merely nominal damages, but rather it must trace any and all profits defendant made by infringing plaintiff's trademark. This will be a detailed and time-consuming task, and since deliberate infringement has already been established, it is properly referred to a Special Master. Barrick v. Pratt, 32 F.2d 732 (5th Cir. 1929); 5 Moore, Federal Practice ¶ 53.05[2], p. 2939 (2d ed. 1968). See La Buy v. Howes Leather Co., 352 U.S. 249, 259, 77 S. Ct. 309, 1 L. Ed. 2d 290 (1957).
Finally, defendant claims that the writ of execution enforcing plaintiff's judgment by attaching one of plaintiff's bank accounts is void because it was served before the expiration of ten days from the entry of judgment.
*496 Rule 62(a), Fed.R.Civ.P., provides in pertinent part that "no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after its entry."
The writ of execution was served on August 4, 1969, and it was to enforce a judgment for appellate costs, entered in the court's judgment docket book on July 2, 1969, thirty-three days before the writ of execution was issued. As such, the writ of execution was properly served.
Accordingly, defendant's motion to vacate, or, in the alternative, to amend the interlocutory judgment and permanent injunction, and its motion to vacate the writ of execution are in all respects denied.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304519/ | DeWITT, J.
On September 30, 1927, T. J. Wilson, the owner of a tract of land near the right of way of the Louisville & Nashville Railroad Company, filed the bill in this cause against said Company to recover damages for diversion of water from its natural course -on to his land; and to enjoin the defendant Company to construct and maintain a ditch and culvert that would carry off all surface and flowing water, so that it would not damage complainant’s spring, lands, crops, grass, road, etc. Upon the final hearing the mandatory injunction thus prayed for was granted and a recovery of $250 was awarded as damages.
A reference was ordered to the Clerk and Master to take proof and report:
“1. The cause of the injury, if any, to complainant’s property sued for herein.”
Upon Ubis the Master reported:
“That the injury sued for was caused by the defendant RaiD road Company permitting its ditch to fill up along and on its right of way, and permitting its culverts to fill up, which ditch and culverts being too small to carry off the surface water of ordinary rains, and on account of said condition of said ditch and culvert being filled up and too small to. carry off the water, that runs into the ditch and through the culvert, thereby overflowing the complainant’s lands, spring and spring house many times during ordinary rains from September, 1924, to September, 1927.
“2. The amount of damages, if any, to said property, and in ascertaining this damage, he will be governed by the rule announced in the case of Nashville v. Comar, reported in 4 Pickle, 415, and the case of Railroad v. Higdon, reported in 3 Cates, 121.”
The Master fixed the damages at $750, but, upon exception, the Chancellor reduced it to $250.
There is abundant evidence to. sustain these concurrent findings, that complainant’s property was damaged from the aforesaid causes, and that the damages amounted to as much as $250. The Railroad Company, however, pleaded an accord and satisfaction, denying all claim for damages and right to any mandatory injunction. It also pleaded the statutes of limitation, of three, six and ten years. These defenses were based upon the theory that the defendant had previously, in settlement of litigation with complainant, paid a sum as permanent compensation, or damages, for the injuries complained of.
*329The preceding owner of the railroad was the Lewisburg and Northern Railroad Company. The railroad was constructed in 1913 by said Company. T. J. Wilson was the owner of the tract of land here involved, bounded on the west by the Farmington and Fayetteville Turnpike. The railroad track was built on and near the bed of the turnpike and the turnpike was removed to the west side of the railroad track. The land is hilly or rolling, except the extreme western part near the railroad, where it is low and level, and on this level portion is a spring about thirty feet from the right of way of the railroad. Before the railroad was constructed, all of the water which fell on Wilson’s land, flowed westwardly toward the turnpike. There was a ditch or gully running along the northern boundary of this land, running through a culvert under the. turnpike at the northwest corner 'of the land and down the western side of the turnpike-to a creek. This ditch carried a large volume of water during heavy rains.
On June 13, 1911, the Lewisburg and Northern Railroad Company purchased of Wilson a strip of said land, containing .33 of an acre, and a separate contract was entered into, with the following provision (after reciting the purchase) :
“In consideration of the premises, the said Railroad Company binds itself and agrees to so construct its line of road so as not to damage, injure or destroy the said spring of water, and in the event that it becomes necessary for the said Railroad Company to relocate the Farmington and Fayetteville turnpike, such relocation shall be so made as not to damage said spring. ’ ’
In February, 1914, T. J. Wilson instituted two suits in the Circuit Court of Rutherford county against the Lewisburg and Northern Railroad Company and certain contractors, for damages to his said property. One suit related to the spring and was based upon breach of the aforesaid agreement. The other suit was in tort for damage to a well, flooding the land, impairment of ingress and egress. In said suit the material averments of the declaration were as follows (after describing the properties with relation to each others) :
That the defendants had filled in the ditch that carried the surface water across the pike and constructed in lieu thereof a wide and shallow ditch along the entire front of plaintiff’s property; that this ditch was intended to convey all the surface water that formerly flowed across the pike; that the surface water had thus become diverted from its original channel, causing overflows upon the land; that the injuries resulting therefrom were of a permanent, nature.
*330In December, 1915, these two suits were settled by the payment of the sum of $150 to T. J. Wilson. The contention is made that by this settlement the plaintiff waived all claim to future damages of this nature; that the settlement was permanent and precluded any other claim.
Permanent damage had unquestionably been inflicted, but it was not all the damage which has been suffered. The evidence shows that the Railroad Company did not wholly remedy the condition. In 1923 it abandoned the ditch which it had maintained (and which was insufficient), filled it, and cut a ditch across the old turnpike westward from plaintiff’s gate and placed under the turnpike a small culvert. This ditch was smaller and less efficient and the culvert was insufficient. The Railroad Company has permitted this ditch and culvert to become filled with dirt, gravel, etc., and the ditch to be grown up in weeds and bushes — so that little, if any, water has run through said ditch and culvert.
In White v. N. C. & St. L. Ry., 1 Tenn. App., 474, it was said:
“Cases such as Railroad v. Higdon, 111 Tenn., 121, Railroad v. Hays, 11 Lea, 382, and Carriger v. Railroad Company, 7 Lea, 388, certainly indicate that the duty of maintaining the railroad in such manner as not to obstruct the natural drainage, is a continuing duty. In fact, the very basis of the decisions allowing recurring damages, instead of permanent damages, is upon the theory that, where for instance a culvert is insufficient, or where there is no culvert, the defendant will not continue to maintain its roadbed in this condition, but will remedy the same.”
Upon the facts, the defenses of accord and satisfaction, and of the statute of three years (the only one otherwise applicable) cannot be sustained. Since the former settlement a new condition has been created, a new cause of the damage. Tn making a settlement for permanent damages already incurred, the Railroad Company did not acquire a permanent right to damage the property.
Even if the condition of the land and the spring is the same as existed more than three years before the filing of the bill; even if the damage which complainant now suffers was not begun within the three years, the rule of recurrent or continuing damages entitled the complainant to recover. Under this rule a distinct right of action arises with each wrongful act in the overflow or submergence of plaintiff’s lands, clue to the negligence of the railroad company. See Ry. Co. v. Roddy, 132 Tenn., 568, 179 S. W., 143, and cases cited. In the Roddy case it was said:
“In eases such as the one under review, the cause of action is not referable to the original obstruction of the ditch, but to the subsequent 'several recurrent tortious acts of overflow which *331affected injuriously the lands of the plaintiff, as fresh acts giving rise to fresh damages.”
Of course, during the three years there were fresh overflows, for the inadequate condition of the ditch and culvert maintained by the railroad company has been the same during that period. The railroad company not only owed it to the adjoining landowner not to obstruct oy divert the natural flow of the water, but it also undertook in writing not to damage the spring. The evidence is that such diversion causes a considerable pond of water to - stand in and around the spring, and the spring, formerly a very good and useful one, is unfit for use. The' railroad company has, during the three preceding years, continually violated its duty.
We think also that this was a proper case for the issuance of the mandatory injunction. Unless the injurious conditions are remedied, the damage to the land and the spring will continue. Since, under the law, the owner can only recover ‘' recurring damages, ’ ’■ he can never recover to the full extent of impairment of value of his land, but will have to continue indefinitely to bring one suit after another, each seeking to recover the temporary damages up to the time of bringing suit; and therefore he has no adequate remedy at law. White v. Ry., 1 Tenn. App., 467, and cases cited. That case, well-reasoned, replete with pertinent authorities, and fully approved by the Supreme Court, is ample authority for the Chancellor’s exercise of his discretion, under all the circumstances, in granting the very extraordinary writ of mandatory injunction.
It results that all of the assignments of error must be overruled. The decree of the Chancery Court is affirmed. A decree will be entered in this court in favor of the complainant against the defendant for the sum of $250, with interest from the date of the decree of the Chancery Court, and all the costs of this cause.
Faw, P. J., and Crownover, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1646206/ | 9 So.3d 617 (2009)
FOREHAND
v.
STATE.
No. 1D09-0917.
District Court of Appeal of Florida, First District.
May 14, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568595/ | 308 F. Supp. 152 (1970)
Melvin D. IRVIN and Johnie E. Lewis, Plaintiffs,
v.
MOHAWK RUBBER COMPANY
and
Local 539, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, Defendants.
No. H 68-C-13.
United States District Court E. D. Arkansas, E. D.
January 12, 1970.
*153 George Howard, Jr., Pine Bluff, Ark., Barbara Morris, New York City, for plaintiffs.
J. W. Barron, Little Rock, Ark., J. P. Baker, Jr., West Helena, Ark., Joseph M. Holden, Akron, Ohio, for Mohawk Rubber Co.
James E. Youngdahl, Little Rock, Ark., for Local 539.
MEMORANDUM OPINION
OREN HARRIS, Chief Judge.
This is a class action brought by the plaintiffs, Melvin D. Irvin and Johnie E. Lewis, Negro employees of the Mohawk Rubber Company, on their behalf and on behalf of other Negroes similarly situated, against the defendants, Mohawk Rubber Company and Local 539, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, to enjoin them from continued employment practices and procedures in violation of *154 Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.).
The plaintiffs allege that due to the employment practices and collective bargaining agreements of the defendants, they have been segregated in their employment which has resulted in discrimination because of their race and color, thereby depriving them of equal employment opportunities.
Plaintiffs further allege that Local 539, their collective bargaining agent, has continuously refused to represent them (members of the collective bargaining unit) fairly. Furthermore, it is contended by the plaintiffs that Local 539 has acted in such a manner as to limit the plaintiffs' employment opportunities and to adversely affect their status as employees on the basis of race and color.
Jurisdiction is invoked pursuant to 42 U.S.C.A. § 2000e-2(a) (c) (Title VII of the Civil Rights Act of 1964), 28 U.S. C.A. § 1343 and 42 U.S.C.A. §§ 1981, 1983.
Pre-trial motions for summary judgment filed by the defendants were decided on the pleadings and briefs and denied July 18, 1969. The cause of action was tried to the Court on October 1 and 2, 1969.
The Mohawk Rubber Company at all times material herein has been engaged in the manufacture of vehicle tires at its plant in West Helena, Arkansas, and has in its employment approximately 589 persons. At all times material herein the defendant union, Local 539, has been the duly certified bargaining agent for certain of the employees, or groups of employees, including the plaintiffs and the class they represent.
The Defendant Company commenced operations in West Helena, Arkansas, in 1956. It is organized into divisions and into departments within those divisions.
The Plaintiff Melvin D. Irvin has been an employee of the Defendant Company since October 20, 1956, a short time after the plant opened. Three Negroes were employed at the plant when Irvin commenced work. The Plaintiff Johnie E. Lewis has been an employee of Mohawk since 1957.
The union was organized in 1957 and recognized as the bargaining agent. Traditionally contracts have been negotiated between defendants every two years and at all times material herein there has been in effect a collective bargaining contract between the company and the union.
Until 1965, after the passage of the Civil Rights Act of 1964, all Negroes employed by Mohawk were segregated and confined to three departments of Division "B" in the plant and to the Janitorial Department 30 of Division "A". Until that time all employees of the three departments of Division "B" and Department 30 of Division "A" were Negro. There were no Negro employees in any other of the divisions or departments of Mohawk.
In April, 1966, Plaintiffs Irvin and Lewis filed a complaint with the Equal Employment Opportunity Commission against both defendants; on consideration of the complaint, the Commission found reasonable cause to believe that the Defendants Mohawk and Local 539 had violated Title VII of the Civil Rights Act of 1964.
Until September, 1966, Defendant Mohawk directly hired employees needed and necessary in the operation of the plant. At that time, which date becomes important in this proceeding, the Company changed its employment policy and begain hiring its employees through the Arkansas Employment Securities Division at Helena, Arkansas.
As of September 1, 1966, there were 554 employees of Mohawk, 454 white and 100 Negroes. Of the 100 Negroes 60 were assigned to Division "B" and 23 to Department 30 of Division "A". There were no white employees in Department 30 or in Division "B". One Negro was employed in a department of Division *155 "C" and 15 Negroes were employed in six departments of Division "D".
For a clearer understanding of the organizational scheme of the Mohawk Rubber Company in manufacturing and fabricating rubber products, the plant is organized into six divisions as follows:
Division A - comprised of departments: 30 janitorial department
31 power house
32 boiler room
33 plant maintenance
Division B - banbury or mixing division,
which is comprised of departments: 02 compounding and mixing
division
20 cement house
42 receiving raw materials
department 50 has been combined
with department 42
Division C - the stock preparation division
which is comprised of
departments: 04 free roll and gum calendar
05 tubing and milling
07 (which has been combined
with department
17)
Z calendar
Division D - building, curing and final
finishing division, which is
comprised of departments: 06 passenger band building
09 scrap salvage
10 passenger tire building
11 truck band and tire building
12 passenger tire curing
14 truck tire curing
18 final finishing and shipping
25 and 18 have been combined
as have departments 15
and 18
Storehouse Division
Statistical Quality Control Division
We are concerned primarily with the employment practices of Division "A", Janitorial Department 30; Division "B"; Division "C"; and Division "D".
At the time of the trial the company had in its employment some 589 employees. There were 68 employees in 15 classifications or separate job descriptions in Division "A"; there were 59 employees with 14 job classifications in Division "B"; there were 59 employees with 28 job classifications in Division *156 "C"; and there were 392 employees with 52 job classifications in Division "D". The other employees were in the Storehouse Division and in the Statistical Quality Control Division.
From 1957 to 1960 the collective bargaining agreement negotiated between the defendants provided that in the event of curtailment of production, or reduction in force, Negro employees in Division "A" Department 30 and those in Division "B" could not transfer to vacancies in other departments or divisions. The collective bargaining agreement prohibited inter-divisional transfer to fill vacant positions. As a result, these Negro employees were permanently "locked" into these departments and divisions by reason of their race.
From June, 1960, until August, 1968, the collective bargaining agreement (traditionally negotiated every two years) was altered only to the extent that in the event of curtailment of work, or reduction of the labor force, all employees who would have been laid off by reason of the foregoing conditions were allowed to transfer temporarily to vacant positions in divisions and departments other than their regular divisions and departments. However, upon resumption of work, these employees were required to return to their resident departments.
Complaint was made to defendants about these procedures and Plaintiff Irvin requested that non-discriminatory practices be adopted whereby employees could transfer to vacancies in any department or division on the basis of their seniority attained at the plant. The issue was considered by Defendant Local 539, which consistently refused to alter or change the procedure and allow inter-divisional transfers on the basis of seniority within the plant.
After the filing of this proceeding and during its pendency a new contract was negotiated between the defendants in June, 1968. The new contract included a provision for the filling of vacancies in the various divisions of the company plant. It provided four steps in job opportunities. Eligibility for an initial opening or vacancy was based on maximum seniority in the same department and division in which the vacancy occurred. The second step in the chain for a vacancy was open only to an employee with the greatest seniority in the division where the vacancy occurred. Employees in the other divisions and their departments were ineligible for employment to fill such vacancies. The new contract provided for only two bids in one chain. Job bidding rights were restricted to one bid in any 12-month period. Furthermore, employees were ineligible to bid until they had been employed in excess of nine months.
The third step in the chain for filling of the vacancies was by surplus help, recalled personnel (employees previously laid off) and finally newly-hired personnel. No inter-divisional transfer procedure was included.
Some two months later, in August, 1968, an amendment was negotiated, adopted and became a part of the collective bargaining agreement between the defendants. This amendment, which is now in force, becomes another important issue in this proceeding. It modifies the procedures for filling of vacancies as follows:
Eligibility for the first vacancy is limited to employees in the same department of the division in which the vacancy occurs. The vacancy is awarded to the individual with the greatest seniority who fills these prerequisites. Eligibility for the second vacancy is limited to employees of the division in which the vacancy occurs and the job is awarded to the employee with the greatest seniority of employment within the division. The third vacancy or step in the chain may be subject to bid by persons in departments and divisions other than that in which the vacancy occurs and at this point the job may be awarded to the individual with the greatest seniority in the plant and otherwise qualified.
The defendants contend that this process is required since employees in a particular *157 labor pool necessarily become familiar with the work of others in the same pool and how it is accomplished, which often obviates the necessity of training; that people in the same department or division acquire by observation and association general familiarity or working knowledge of the jobs in their department or division; and it promotes efficiency, safety and tends to avoid costly mistakes.
Nevertheless, the result of the bidding process provided in the amended contract creates a preference in favor of employees already in the department and division where a vacancy occurs. The majority of Negro employees are still relegated to Division "B" and to the Janitorial Department 30 of Division "A" as a result of past discriminatory hiring and placement practices of Defendant Mohawk Rubber Company.
Although there have been some inter-departmental transfers under this procedure, which defendants contend is sufficient to meet the requirements under the law, it is quite obvious that within other divisions, as for example, Division "D" with the greatest number of employees, 392 and 52 job classifications, there is greater mobility and opportunity of transfer to more desirable jobs when vacancies occur. It should be noted that the employees of Department 30 of Division "A" do not enjoy the same mobility as they are not permitted to transfer to other departments in their divisions since those departments under the organizational scheme are of a technical nature requiring training as electricians or mechanics as additional prerequisites for employment.
The Court holds that because of past discriminatory employment and placement practices against Negroes, the employment opportunities of Negro employees with the greatest seniority in the company are more limited than are those of similarly-situated white employees. Negro employees confined to Division "B" and Department 30 of Division "A" from past racial discrimination, results in a "locked-in" status. The employment opportunities of white employees (who have been considered eligible for and have been employed in other departments and divisions of the plant) have greater mobility and greater opportunity for transfer to better or more desirable jobs of their choice.
As an example, the first stages in fabrication of rubber and synthetic rubber occur in Division "B". The work of this division deals with the measuring, mixing, pouring, and heating of raw materials in batches which are forwarded to other divisions for the manufacturing processes. The work in Division "B" entails a great amount of physical labor, a high degree of heat, and the area is permeated with the fumes of the heating raw materials. The greater number of jobs under more desirable conditions exist in departments and divisions other than those which are traditionally Negro.
There is no issue as to the wage scale on an hourly basis and the record fails to establish any discrimination against Negroes as a class with respect to pay.
Neither is there any issue on the question of training. All collective bargaining agreements provide for "on-the-job training" in the event of transfer of personnel to new jobs.
Also, upon the merits of the case, the Court holds that the defendant union, Local 539, has denied and continues to deny equal employment opportunity to Negro employees of Department 30 of Division "A" and Division "B" by reason of the union's failure and refusal to provide equal access to jobs in previously traditionally recognized white departments.
The Court further holds that the company is not now engaged in and has not engaged in discriminatory hiring practices and assignment procedures since September, 1966, at which time by contract it began hiring through the Arkansas Employment Securities Division at Helena, Arkansas. The plaintiffs are entitled to no relief on this issue.
*158 The Court also holds that the defendants have discriminated against Melvin D. Irvin and Johnie E. Lewis and the class consisting of Negro employees who were hired and assigned to Janitorial Department 30, Division "A" and Division "B" before September, 1966, and still employed therein, with respect to advancement, transfer and seniority. The plaintiffs are entitled to relief correcting this discrimination.
The thrust of the issue in this case is whether the restrictive departmental transfer and seniority provisions of the collective bargaining agreement are intentional, unlawful employment practices because they are superimposed on a departmental structure that was organized on a racially segregated basis. Here again, the question is raised: Are present consequences of past discrimination covered by the Civil Rights Act of 1964?
The defendants would have the Court to hold in the negative. They urge the Court to adopt the view that any and all acts of discrimination prior to the Civil Rights Act, and the resultant effect since, should not interfere with departmental structure and company procedures resulting in compliance and non-discriminatory practices since September, 1966. They urge the slate should be wiped clean as of that time, the status quo accepted, and the subsequent negotiated contract be accepted as determining the rights of all employees affected thereby. The Court is not persuaded to this view.
This identical question was considered as recently as January 4, 1968, by the United States District Court-ED-VA., heavily relied upon herein by both parties. Judge Butzner, Circuit Judge of the Fourth Circuit, was designated to hear the case and rendered the decision in Quarles v. Philip Morris, Incorporated, reported in 279 F. Supp. 505.
As it is with the Defendant Mohawk, the Quarles case, supra, involved departmental structure with Philip Morris and job classifications in each department. Employees were hired from the street. There were departments with traditionally white employees, although there were a token number of Negroes employed therein. The "prefabrication" department was formerly staffed with only Negroes. The collective bargaining agreement provided that vacancies in the "prefabrication" department be filled by senior employees from the "stemmery". The "stemmery" was considered seasonal and formerly all employees were Negro. There were sub-departments in the structure of the company's operation.
There, as here, most of the opportunities for advancement, or for the exercising of other privileges depended upon "departmental seniority" rather than "employment seniority". Departmental seniority is generally a factor in the transfer, promotion and avoiding lay-offs. They are each based on the date of employment. Departmental seniority is clearly given preferred treatment over employment seniority.
In the Quarles case, as here, operation of the company's business on departmental structure with restrictive departmental transfers serve numerous legitimate management functions. It is undisputed that it promotes efficiency, encourages employees to remain with the company on the basis of prospective advancement and limits similar training that would otherwise be necessary. However, there, as here, organization of the departments (and divisions) on a racially segregated basis has prevented Negroes from advancing on their merits to jobs open only to white personnel. The method of hiring without regard to race since a given date and the relaxation of departmental transfers has only partly eliminated this disadvantage. The court stated:
"The present discrimination resulting from historically segregated departments is apparent from consideration of the situation of a Negro who has worked for ten years in the prefabrication department. In 1957 because of his race he could not get a job in the fabrication department, where the better paying *159 jobs are. The six months agreement for transfers was unavailable to him until 1961, and then regardless of his qualifications and the vacancies, only two Negroes could transfer every six months. * * * In contrast, the opportunities of a white employee who was hired nine years ago are considerably better than the Negro with ten years employment seniority. The white employee, because of his race, could start to work in the fabrication department. His opportunities for advancement are not limited to four vacancies every six months and he does not have to compete for transfer with persons who have greater employment seniority." Quarles, supra, at page 513.
While the terms and procedures are distinguishable between the two operations in Quarles, supra, and the instant case, the parallel is the same to the effect that the entry level position with departmental seniority is lower for the Negro employee than a white employee with years less employment seniority. The restrictions on present opportunities for Negroes result from the racial pattern of the company's employment practices prior to September, 1966. They do not result from lack of merit or qualification. A transfer under any plan must meet the requirements as to ability and merit regardless of his seniority.
Title VII of the Civil Rights Act of 1964, pertinent to this case, provides:
Section 703(a), 42 U.S.C. § 2000e-2 (a):
"It shall be an unlawful employment practice for an employer
"(1) to fail to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
Section 703(c), 42 U.S.C. § 2000e-2 (c):
"It shall be an unlawful employment practice for a labor organization
"(1) to exclude or to expel from its membership or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
"(2) to limit, segregate, or classify its membership, or to classify or fail to refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or
"(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section."
Section 703(d), 42 U.S.C. § 2000e-2 (d):
"It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training."[1]
*160 In the application of these provisions in Quarles, supra, it is stated at page 518:
"While no case precisely on point appears to have been decided, the governing principles are not new. Present discrimination may be found in contractual provisions that appear fair upon their face, but which operate unfairly because of the historical discrimination that undergirds them. NLRB v. Local 269, IBEW, 357 F.2d 51 (3rd Cir. 1966). Departmental seniority rooted in decades of racially segregated departments can neither mask the duty of a union to fairly represent its members nor shield the employer who is privy to the union's derelictions. Central of Georgia Railway Co. v. Jones, 229 F.2d 648 (5th Cir. 1956), cert. den., 352 U.S. 848, 77 S. Ct. 32, 1 L. Ed. 2d 59 (1956)."
In a more recent decision, United States v. Sheet Metal Workers International Association, Local Union No. 36, 416 F.2d 123, September 16, 1969, the United States Court of Appeals for the Eighth Circuit, on this point stated at page 131:
"Both plans effectively operate to deprive qualified Negroes of an equal opportunity for employment as journeymen electricians or as sheet metal workers. Because the plans carry forward the effects of former discriminatory practices, they result in present and future discrimination and are violative of Title VII of the Act." (See Note 15 which cites Quarles v. Philip Morris, Incorporated, supra)
The Court finds that the defendants have intentionally engaged in unlawful employment practices by discriminating on the basis of race against Irvin and Lewis, and other Negroes similarly situated. The Court further finds that this discrimination, embedded in seniority and transfer provisions of collective bargaining agreements, adversely affects the conditions of employment and opportunities for the advancement of the class.
CONCLUSIONS OF LAW
1. The Court has jurisdiction of this action. 42 U.S.C.A. §§ 2000e-5(f), 1981, 1983, 28 U.S.C.A. § 1343.
2. The defendant Mohawk Rubber Company is an employer engaged in an industry affecting commerce as those titles are defined in Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e(b).
3. The defendant Local 539, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organization engaged in an industry affecting commerce as those titles are defined in Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e(d) (e).
4. This is a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure and plaintiffs, Melvin D. Irvin and Johnie E. Lewis, are appropriate representatives of that class.
5. The policies and practices of defendant, Mohawk Rubber Company, prior to September, 1966, were discriminatory on the basis of race. The procedure currently used by defendant, Mohawk Rubber Company for transfer from one job classification to another and between divisions operates unfairly as to those employees in the Janitorial Department 30 of Division "A" and those employees of Division "B" employed prior to September, 1966, and perpetuates past discriminatory practices of defendant, Mohawk Rubber Company, as to such employees.
6. Where an employer has engaged in such a pattern and practice of discrimination on account of race and color, as described herein, and in order to insure the enjoyment of rights protected by law, Title VII of the Civil Rights Act of 1964, require affirmative and mandatory injunctive relief.
7. Local 539, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the collective bargaining agent of the employees, by reason of having negotiated contracts which deny to certain Negro production employees equal access to jobs in previously white *161 departments of certain divisions in the company's structure and which circumscribe, limit and deny equal employment opportunities to such Negro production employees of defendant Mohawk (which they represent) has denied those Negro employees full enjoyment of the rights protected by Title VII of the Civil Rights Act of 1964 and fair representation mandated by law. Accordingly, affirmative and mandatory injunctive relief is required.
The parties have proposed remedies deemed appropriate under Section 706 (g) [42 U.S.C.A. § 2000e-5(g)], which provides in part:
"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, * * *."
Neither of the remedies suggested appear altogether satisfactory. It does not appear necessary to abolish departmental structure of the company's business. It is unnecessary to require the company to forego the efficiencies which it has found in its departmental organization. It appears that the plaintiffs' proposal, while not ousting white employees from present jobs, is too general, too broad in its purport, and could conceivably give preferable treatment to Negroes even though they may have less employment seniority than whites. This is not contemplated in the Act.
The proposals made by the company and the union would continue to subordinate the affected Negroes to white employees regardless of employment seniority. These proposals would result in a continuation of racial discrimination applicable to those employed by the company prior to September, 1966.
In fashioning a remedy it should be kept in mind that the departmental rights of white employees are not vested, indefeasible rights. They are expectancies derived from the collective bargaining agreement and are subject to modification. Quarles, supra, 279 F.Supp. page 520. Cases cited.
In Central of Georgia Ry. Co. v. Jones, 229 F.2d 648, 650 n. 3 (5th Cir. 1956), cert. den., 352 U.S. 848, 77 S. Ct. 32, 1 L. Ed. 2d 59 (1955), the court issued a decree affirmatively requiring the union and company to grant "the same seniority rights, training privileges, assignments and opportunities to these jobs as white persons of similar continuous service would enjoy." Consequently, the remedy here should permit these Negro employees (Irvin and Lewis) and those of their class to train and advance on the same basis as white employees with comparable ability and employment seniority. At the same time, the remedy should disturb as little as possible the efficiencies which the company finds in its departmental structure.
In providing for injunctive relief in this case, the decree will provide that all Negroes employed by the company before September, 1966, who now work in the Janitorial Department 30 of Division "A" and who work in Division "B" shall be given an opportunity to transfer to the other Divisions "C" and "D" to fill vacancies as they exist, should they elect to transfer and are qualified for the jobs they seek.
Members of the class who may be transferred in accordance with this decree and members who previously transferred under existing procedures shall have departmental seniority computed from their employment seniority date. The existing procedures and practices of the company and union, in accordance with the negotiated contracts in all other respects, will be permitted.
The company and the union will be restrained from enforcing directly or indirectly any provision of any collective bargaining agreement or practice or from taking any other action which conflicts with the terms of this decree.
The plaintiffs are entitled to recover from the defendants, jointly and *162 severally, their costs, including a reasonable attorney's fee, 42 U.S.C.A. § 2000e-5(k). If after thirty days the parties have not agreed upon a reasonable attorney's fee, the Court will determine and allow it upon consideration of a statement of services filed and served upon counsel for the defendants, who shall have fifteen days to serve and file a response.
A decree will be entered in accordance with these findings and conclusions.
NOTES
[1] An excellent analysis of the legislative history of Title VII of the Civil Rights Act of 1964 is included by Circuit Judge Butzner in his opinion in Quarles v. Philip Morris, Incorporated, D.C., 279 F.Supp. 515-517. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726544/ | 970 So. 2d 824 (2007)
LANCASTER
v.
McDONOUGH.
No. SC07-1322.
Supreme Court of Florida.
November 19, 2007.
Decision without published opinion. Hab. Corp. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568476/ | 10 So. 3d 1120 (2009)
EVEREST RE GROUP, LTD., Petitioner,
v.
DEPARTMENT OF FINANCIAL SERVICES, as receiver for Southern Family Insurance Company, Atlantic Preferred Insurance Company, and Florida Preferred Property Insurance Company, Respondent.
No. 1D08-3961.
District Court of Appeal of Florida, First District.
April 24, 2009.
Rehearing Denied June 11, 2009.
*1121 Daniel C. Brown and Kelly Anne Cruz-Brown of Carlton Fields, P.A., Tallahassee; Vincent Proto, Jeffrey S. Leonard and Joseph J. Schiavone of Budd Larner, P.C., Short Hills, N.J., for Petitioner.
Joseph D. Perkins, Richard Lydecker, Christopher G. Berga and Alan S. Feldman of Lydecker, Lee, Behar, Berga & De Zayas, Miami; William A. Spillias, Chief Attorney, Department of Financial Services, Tallahassee, and Jody E. Collins, Senior Attorney, Department of Financial Services, Miami, for Respondent.
PADOVANO, J.
Everest Re Group, Ltd., a holding company incorporated in Bermuda, petitions the court for a writ of certiorari to review an order compelling discovery in a proceeding to liquidate several insolvent insurance companies. For the reasons that follow, we deny the petition.
The Florida Department of Financial Services served an investigative demand on Everest Re to obtain information it believed to be relevant to the affairs of the insolvent insurance companies. Everest Re refused to comply with the demand, which prompted the Department to file a motion to compel discovery. The motion was denied on the condition that Everest Re submit an affidavit within thirty days stating that it does not have in its possession the documents demanded. The order indicates that if the affidavit is not submitted, the Department will be entitled to enforce its demand. Everest Re did not deny that it had the records but instead challenged the order by filing a motion for rehearing. The trial court denied the motion and Everest Re then sought review in this court.
Within the limits of its statutory authority, an administrative agency has the power to conduct an investigation and to obtain information from those who may have information relevant to the investigation. See United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S. Ct. 357, 94 L. Ed. 401 (1950) (comparing the investigative power of an administrative agency to that of a grand jury). As we stated in Florida Department of Insurance v. Bankers Insurance Co., 694 So. 2d 70 (Fla. 1st DCA 1997), the authority to investigate exists apart from the authority to file an administrative complaint. An agency is *1122 not required to allege a violation of the law or file a formal charge as a prerequisite to an investigation.
The authority for the investigative demand in this case is established by Section 631.156, Florida Statutes (2008), which provides that the Florida Department of Financial Services may conduct an investigation to determine the cause of an insurer's insolvency. This statute gives the Department broad power to investigate potential violations of state and federal law and to discover the existence and location of any assets that may be recovered in the liquidation proceeding. According to the statute:
The department may take statements under oath and examine and review the books, records, and documents of the insurer or any affiliate, controlling person, officer, director, manager, trustee, agent, adjuster, employee, or independent contractor of any insurer or affiliate and any other person possessing any executive authority over, or exercising or having exercised any control over, any segment of the affairs of the insurer or affiliate.
§ 631.156, Fla. Stat. (2008).
Everest Re contends that it is not required to determine whether it has the information the Department seeks on behalf of the State of Florida because it is not an entity that is subject to regulation by the statute. We reject this argument based on a plain reading of the statute. By its terms, the statute authorizes the Department to serve an investigative demand on an "agent" or "independent contractor" of the insolvent insurer or any affiliate "exercising or having exercised any control over any segment of the affairs of the insurer or affiliate." This language makes it clear that the right to obtain discovery is not limited to business entities that have managerial control over the insurer or one of its affiliates. If Everest Re has in its possession assets belonging to an insolvent insurance company, or records of transactions relating to the insolvency of the company, it has acted on behalf of the insolvent insurance company by exercising control over a particular aspect of its business. The Department has alleged that Everest Re has records that are relevant to these matters, and Everest Re has not denied that. It follows that the Department has authority to demand the records.
Everest Re emphasizes the fact that it is not authorized to do business in Florida, but that has no bearing on the issue before the court. The statute does not contain an exemption for foreign corporations. It does not state or imply that the Department's investigative power is limited to companies that are authorized to do business in Florida. If that were the case, the principal owners of a Florida insurance company could avoid an investigation into its insolvency simply by forming an offshore holding company and then placing its books and records in the hands of that company.
In addition to its argument regarding the applicability of section 631.156, Everest Re contends that there is no basis for the exercise of long-arm jurisdiction. We think this argument is out of place here. The Department does not seek relief against Everest Re as would be the case had the Department filed a lawsuit or an administrative complaint against it. At this point, Everest Re is merely a witness. The question is not whether the Department can sue Everest Re in a Florida court, but whether it can subpoena its records in an official investigation conducted on behalf of the state. The answer is found in section 631.156, Florida Statutes, the law authorizing the investigation, not *1123 in the long-arm statute or in constitutional principles relating to personal jurisdiction over nonresident defendants.
Because the demand was authorized by section 631.156, the trial court had authority to order Everest Re to comply. We do not address any of the issues that might arise in the enforcement of the trial court's order. On certiorari the appellate court is limited to a review of the order that is the subject of the petition. See Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla.1995). The reviewing court may either quash the order or deny the petition. See Park v. City of West Melbourne, 927 So. 2d 5 (Fla. 5th DCA 2006). The court does not give directions on remand, as it might in an appeal from a final order.
Petition denied.
BROWNING and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568480/ | 10 So. 3d 624 (2008)
James M. BYRD
v.
STATE of Alabama.
CR-07-0507.
Court of Criminal Appeals of Alabama.
October 31, 2008.
*625 James M. Byrd, Mobile, for appellant.
Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
WELCH, Judge.
James M. Byrd appeals from the trial court's issuance of a contempt citation against him. The trial judge, Stuart C. DuBose,[1] fined Byrd $200[2] for his failure to appear at a criminal settlement docket over which Judge DuBose had presided.
The record shows that Byrd had requested a continuance from October 1, 2007, to October 2, 2007, but he failed to appear in court on October 2. The trial court found him in contempt, stating that Byrd had "utter disregard and disrespect for this Court. This is the Circuit Court of the First Judicial Circuit of the State of Alabama and is not a floor mat and is not a back seat to any Court in the State of Alabama." (R. 8.) Byrd did not file a postjudgment motion.
Byrd contends that he was denied his due-process rights to notice and a hearing, as required by Rule 33.3, Ala. R.Crim. P. The parties, and this court, are in *626 agreement that the type of contempt case at issue here is constructive or indirect contempt. See, e.g., Quick v. State, 699 So. 2d 1300 (Ala.Crim.App.1997).
The distinction between direct and indirect contempt is important because the "due process" to be afforded an individual charged with indirect contempt is more significant than the process due to be afforded when one is charged with direct contempt. Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767 (1925).
"A proceeding in contempt for noncompliance with a lawful court decree is sui generis and not a `criminal prosecution' as that term is commonly understood. Blackmer v. United States, 284 U.S. 421, 52 S. Ct. 252, 76 L. Ed. 375 (1932), and Robertson v. State, 20 Ala. App. 514, 104 So. 561 (1924). Because the sanctions employed by the court, pursuant to a criminal contempt adjudication, partake so heavily of a criminal nature (i.e., the actual or potential restraint of the body), however, it is essential in all but a narrow category of cases that constitutional principles be applied to this process to assure substantial due process is afforded the accused. The task of this Court, then, is to balance the inherent power of the Court to preserve its dignity and honor by the contempt process, while preserving to the accused contemnor the right to be treated with fairness and substantial due process."
State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So. 2d 538, 542 (Ala.1977).
To properly find one in constructive or indirect contempt, the trial court must afford the defendant the following elements of due process:
"In considering whether a lower court complied with the requirements of due process in a case of constructive or indirect contempt, we look to determine if the following elements were present: (1) notice of the charges; (2) reasonable opportunity to meet them; (3) right to call witnesses; (4) right to confront the accuser; (5) right to give testimony relevant either to the issue of complete exculpation or extenuation of the offense; and (6) right to offer evidence in mitigation of the penalty imposed."
Fludd v. Gibbs, 817 So. 2d 711, 713 (Ala. Civ.App.2001); see also Kimbrough v. Kimbrough, 963 So. 2d 662, 665 (Ala.Civ. App.2007).
In its brief on appeal, the State concedes that Byrd was not afforded his due-process rights, but, it contends, Byrd failed to preserve the issue for appellate review.
"`Review on appeal is limited to a consideration of questions properly raised in the trial court. Knox v. State, 38 Ala.App. 482, 87 So. 2d 671 (1956); Handley v. State, 214 Ala. 172, 106 So. 692 (1926). Matters not objected to in the trial court cannot be considered for the first time on appeal since review on appeal is limited to those matters on which rulings are invoked at nisi prius. Daniels v. State, 53 Ala.App. 666, 303 So. 2d 166 (1974); Shiver v. State, 49 Ala.App. 615, 274 So. 2d 644 (1973); Cooper v. State, Ala.App., 331 So. 2d 752, cert. denied, Ala., 331 So. 2d 759 (1976).'
"Harris v. State, 347 So. 2d 1363, 1367 (Ala.Cr.App.1977), cert. denied, 347 So. 2d 1368 (emphasis in original)."
Brown v. State, 701 So. 2d 314, 316 (Ala. Crim.App.1997).
Even constitutional issues must be properly preserved for appellate review. Brown v. State, 705 So. 2d 871, 875 (Ala.Crim.App.1997). "Due process does not override the basic law of preservation,... and the issue must first be presented *627 to the trial court before it will be reviewed on direct appeal." Boglin v. State, 840 So. 2d 926, 929 (Ala.Crim.App.2002).
Byrd argues that the three exceptions to the preservation requirement applicable in probation-revocation proceedings should apply here. Those exceptions include: (1) the requirement that a revocation hearing be held; (2) the requirement that there be an adequate written or oral revocation order; and (3) the requirement that the probationer be informed of his right to request counsel. Jackson v. State, 867 So. 2d 365 (Ala.Crim.App.2003).
We decline to extend the preservation requirements applicable in probation-revocation proceedings. Nonetheless, for the reasons discussed below, we do find that Byrd is entitled to the relief requested.
"The Alabama Supreme Court in Ex parte State ex rel. Knight, 229 Ala. 513, 158 So. 317 (1934), stated the following concerning the requirement of presentment to the inferior court as a prerequisite to the issuance of a writ of prohibition:
"`Undoubtedly the general rule obtaining in many jurisdictions would seem to require that, before resort is had to the extraordinary writ of prohibition, application should ordinarily first be made to the court, or judge, for relief. This general rule has been applied here.
"`But the courts generally recognize that this rule, like many other rules, has its exceptions. The exception is thus stated in 50 Corpus Juris, § 98, p. 697: "The rule is not jurisdictional but one of discretion, and, in its application, is subject to exceptions. Thus it has been held inapplicable to ex parte proceedings; or to proceedings in which applicant for the writ had no opportunity to object; or where it is apparent that an objection to the lower court would have been unavailing and futile, or would result in unnecessary, or hurtful delay...." (Italics supplied.)'
"229 Ala. at 516, 158 So. at 319-20. The Alabama Supreme Court recognized this exception in Ex parte State ex rel. Knight; the inferior court in that case was adamant in its answer to the petition that it had the challenged jurisdiction. In Ex parte Wilson, 269 Ala. 263, 112 So. 2d 443 (1959), the Alabama Supreme Court applied this exception; the circuit court in that case maintained that it had not exceeded its jurisdiction. In Donahoo v. St. John, 253 Ala. 604, 46 So. 2d 420 (1950), the Supreme Court also applied this exception; in that case the issue of the trial judge's lack of jurisdiction had been informally presented to the lower court and it was clear what the lower court's ruling would be had the issue been formally presented."
Ex parte Bridges, 905 So. 2d 32, 35-36 (Ala.Crim.App.2005).
In this case, the record shows that the trial court failed to employ even the most rudimentary concepts of due process, finding Byrd guilty of contempt without even issuing a citation for contempt or holding a hearing allowing Byrd to explain why he should not be held in contempt. There was no hearing, and it appears from the intemperate language and hasty nature of the action of the trial court in this case that the trial court had a personal animus against Byrd.
It is clear from the record that the trial court's ruling would have been to deny any postjudgment motion Byrd may have filed. Under the circumstances of this case, any objection Byrd made to the finding of contempt would have been unavailing and futile.
*628 As the State conceded in its brief, Byrd was denied his due-process rights in the ex parte proceeding against him. Any attempt by Byrd to object to the denial of his rights would have been futile.
Accordingly, the judgment of the trial court issuing a contempt citation against Byrd is reversed. This cause is hereby remanded for a hearing on the issue whether Byrd was in contempt of court when he missed the scheduled criminal settlement docket. If, after a hearing on the issue of contempt, the circuit court determines that Byrd was indeed in contempt, it shall impose a fine not to exceed $100, pursuant to § 12-11-110, Ala.Code 1975.
REVERSED AND REMANDED.
McMILLAN, J., concurs.
BASCHAB, P.J., and WISE, J., concur in the result.
SHAW, J., recuses himself.
NOTES
[1] Judge DuBose was removed as circuit judge of the First Judicial Circuit of Alabama on June 5, 2008, after a hearing before the Court of the Judiciary.
[2] We first note that the maximum fine that a circuit court may impose for a finding of contempt is $100. § 12-11-30(5), Ala.Code 1975. Thus, the $200 fine imposed against Byrd in this case was improper. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568462/ | 10 So. 3d 53 (2007)
Timothy W. SAUNDERS
v.
STATE of Alabama.
CR-05-0281.
Court of Criminal Appeals of Alabama.
December 21, 2007.
Rehearing Denied January 25, 2008.
Certiorari Denied November 26, 2008 Alabama Supreme Court 1070675.
*61 Joe W. Morgan III, Birmingham, for appellant.
Troy King, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.
SHAW, Judge.
Timothy W. Saunders was convicted of two counts of capital murder in connection with the murder of 77-year-old Melvin Clemons, and one count of attempted murder with respect to 74-year-old Agnes Clemons,[1] Mr. Clemons's wife.[2] The murder of Mr. Clemons was made capital because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975, and because it was committed during the course of a burglary in the first degree, see § 13A-5-40(a)(4), Ala.Code 1975. The jury unanimously recommended that Saunders be sentenced to death for his capital-murder convictions. The trial court accepted the jury's recommendation and sentenced Saunders to death. In addition, the trial court sentenced Saunders to life imprisonment for the attempted-murder conviction.
The evidence adduced at trial indicated the following. In 1974, the Clemonses had purchased a 20-acre parcel of land in Foley and had built a house on the property. They operated a business known as Curly's Pecans[3] on Underwood Road. Mrs. Clemons testified that on July 9, 2004, she and her husband spent part of their day working on a house-remodeling project and then worked in the yard together. When they stopped working outside, it was not yet dark. After he came inside, Mr. *62 Clemons took off his shirt and cooked a frozen pizza for them to eat. While he was eating, Mr. Clemons was unusually quiet, and he kept looking outside. Mrs. Clemons testified that her husband told her that a man had borrowed a crowbar from him earlier that day to "pry his motorcycle from around a tree" in the area behind the Clemons's property. (R. 391.) According to Mrs. Clemons, her husband said that the man had told him that someone had stolen his truck and had left it in the woods behind the Clemonses' house, and that the thieves had "wrapped his motorcycle around a tree," so the man asked to borrow Mr. Clemons's crowbar to pry his motorcycle loose. (R. 391.) Mr. Clemons was watching for the man because he expected the man to return the crowbar. Mrs. Clemons testified that it was dark by that time because the porch light by the back porch had been turned on. However, Mrs. Clemons said, beyond the back porch it was "pitch dark" because they had so many trees in the back part of their property. (R. 392.)
Mrs. Clemons testified that she looked out the window toward the back of the property because her husband was standing at the window looking out. She saw what appeared to be two flashlight beams on the road she and her husband used to travel to the back of the property. Mrs. Clemons told her husband that she could see the flashlight beams and that the man was bringing the crowbar back. Mrs. Clemons said that Mr. Clemons opened the back door and looked out; however, the man never arrived with the crowbar, and her husband continued to stand at the door looking out. Mrs. Clemons testified that she begged her husband not to go outside, but to wait for the man to bring the crowbar back to him, and that if the man did not bring the crowbar back, they could buy another crowbar. However, Mrs. Clemons said that her husband was "funny about his tools" and that when she turned around after putting some items into the dishwasher, Mr. Clemons had gone outside. (R. 393.)
Mrs. Clemons testified that, after her husband went outside, she looked out the back door several times but saw nothing. The last time she looked out the door, however, Mrs. Clemons saw a man, who she later positively identified both in a photographic lineup and at trial as Saunders, sitting on the back porch. Saunders was sweating profusely, and Mrs. Clemons thought that he was having some kind of attack, so she opened the door and asked him if he was all right. Saunders told her that he was having an asthma attack. Mrs. Clemons took a glass of water and a wet washcloth to Saunders, and Saunders asked Mrs. Clemons if he could use her bathroom; although she was frightened, Mrs. Clemons permitted Saunders to come into the house.
Saunders went into the bathroom, and when he came out he asked Mrs. Clemons if she would telephone his mother. Mrs. Clemons said that she picked up the wall-mounted telephone to dial the number Saunders had given her and that she had dialed all but the last digit when Saunders attacked her. Mrs. Clemons testified:
"So he had come up behind me and he put his arm around my neck like this and jerked my head back and told me, `Drop the phone.' And I dropped the phone. And I won't ever forget it as long as I live. I just thought I'm going to die. And I won't get to see my family anymore. I won't ever forget that feeling."
(R. 395.)
According to Mrs. Clemons, Saunders told her that he had handcuffed Mr. Clemons to the steering wheel of the car, and that Mr. Clemons had said to tell Mrs. *63 Clemons to give Saunders all the money in the house. Saunders told Mrs. Clemons that if she gave him all the money in the house, he would not hurt her or her husband. Mrs. Clemons then opened the kitchen drawer where her husband kept his wallet and she took out the three $1 bills inside and gave them to Saunders. Saunders then told her that he wanted the keys to their automobiles. Mrs. Clemons refused to give him the keys to their daughter's Ford Mustang, but she gave him the keys to Mr. Clemons's 1989 Lincoln. Saunders then picked up a steak knife and walked toward her. Mrs. Clemons told Saunders to put the steak knife down, to throw it behind the table, and he did so. Saunders then picked up a screwdriver and walked toward her; again, Mrs. Clemons told him to put it down, and he did so. Mrs. Clemons testified that Saunders next picked up an electrical cord and wrapped it around his hands, but that when she told him to put the cord down, he again followed her instructions. Mrs. Clemons then asked Saunders why he was doing this and told him that they had nothing. Saunders responded that he wanted money to buy crack cocaine.
At this point, Mrs. Clemons realized that she knew Saunders, and she told him that she recognized him and that she knew that he lived in a nearby mobile home park. Saunders initially denied living in the area, but when Mrs. Clemons said that she knew that he lived with his mother and brother in a mobile home because she had once seen him on the back of their property with a dog, Saunders admitted that he lived in the mobile home park. Mrs. Clemons testified that Saunders then told her that before he left her house, he was going to give her his name so that she could call the police and report him because he knew that what he was doing was wrong and that he needed to be punished. Mrs. Clemons said that she then asked Saunders why he would not let her and her husband go, and why he was doing this to them. Saunders told Mrs. Clemons that he wanted to be like them, and that he had been watching the Clemonses for more than two months.
Mrs. Clemons testified that Saunders then put his arm around her neck and she "started making a noise." (R. 400.) Saunders put his hand over her nose and mouth, jerked her head back, and repeatedly told her to shut up. Saunders then struck Mrs. Clemons in the face with his fist and knocked her onto the hardwood floor. Mrs. Clemons testified that she remembered her "head bouncing off the floor" when she landed. (R. 400.) Mrs. Clemons then got up and Saunders again placed his arm around her neck, and dragged her into various rooms of the house, looking for items of value. At one point as Saunders was dragging Mrs. Clemons around the house, Mrs. Clemons told Saunders to get his arm away from her neck and he did. When Saunders turned away from Mrs. Clemons, she ran out the front door and screamed for her husband. When Mr. Clemons did not answer, she screamed for her neighbor. Saunders then came outside, grabbed her, and told her to shut up. Mrs. Clemons testified that she could not be quiet, so Saunders struck her again with his fist and knocked her to the ground, causing her glasses to fall off.[4] When she got up, Mrs. Clemons said, Saunders put his arm around her neck again and dragged her back into the house.
Mrs. Clemons testified that after Saunders brought her back into the house, he asked her to pour him a glass of milk. After she poured him the milk and he *64 drank some of it, he took her to the dining room, where he smoked crack cocaine. They then returned to the kitchen where he sprayed the glass he had used with Windex brand glass cleaner. Mrs. Clemons testified that she did not know what other surfaces Saunders sprayed with the Windex cleaner, but that Saunders had been very careful not to touch items in the house and that he had made her pick everything up for him. Saunders then dragged Mrs. Clemons to one of the bedrooms in the house and, when he saw her purse on a bed, he told her to empty her purse and give him the money from her wallet. Mrs. Clemons complied with Saunders's instructions and gave Saunders $57 she had in her wallet. When Saunders saw a bag of Mrs. Clemons's prescription medication, Saunders told Mrs. Clemons to give the bag to him. According to Mrs. Clemons, Saunders then took two or three of her "water pills," two or three of the pills prescribed for her cholesterol, and at least one of her sleeping pills. (R. 406.)
Saunders then took Mrs. Clemons down the hall and into the bathroom and blocked the bathroom door with his leg so that Mrs. Clemons could not leave. He then smoked more crack cocaine. Mrs. Clemons said that Saunders then took some playing cards out of his pocket; each card contained a picture of a naked woman in a suggestive pose. Saunders told Mrs. Clemons to select one of the cards, but she refused and told Saunders that she did not "touch filth like that." (R. 409.) Saunders told Mrs. Clemons repeatedly to draw a card and explained that the card she selected would determine how much longer he would stay in the house. Mrs. Clemons then selected a card and flipped it at Saunders's face. Saunders looked at the card and told Mrs. Clemons that she had to pose like the woman on the card was posed. Mrs. Clemons said that she did not look at the card so she did not know how the woman on the card was posed but that she refused to pose. When Saunders continued to demand that Mrs. Clemons pose, Mrs. Clemons said: "I will fight. And if you get this Scotch Irish and Indian blood mixing together, I'm mean." (R. 410.) Mrs. Clemons then told Saunders that she would fight him until she died; that he was not going to make her pose; and that she wanted to leave the bathroom because he was scaring her. Saunders then moved his leg and allowed her to leave the bathroom.
Saunders followed Mrs. Clemons out of the bathroom, and he dropped his crack pipe and it rolled down the hallway. Saunders told Mrs. Clemons that he was going to bend over and pick up the pipe and to not "try anything stupid." (R. 410.) Mrs. Clemons assured Saunders that she would not do anything when he leaned over. However, as soon as Saunders leaned over to pick up the pipe, Mrs. Clemons ran into one of the bedrooms, grabbed a shotgun, and said "Come on, we're even." (R. 411.) When Mrs. Clemons walked out of the bedroom, she saw that Saunders was going out of the back door of her house. Mrs. Clemons ran into the yard and fired the shotgun. Mrs. Clemons said that she could not see where Saunders had gone when he left the house and that she was afraid that "he might double around and come back and finish me" (R. 411), so she ran back into the house, locked the door, and telephoned emergency 911. Testimony indicated that Mrs. Clemons's call was received by the emergency-911 dispatcher at 9:58 p.m. The 911 call was played for the jury at trial.
When the police arrived, Mrs. Clemons walked through the house with them and told them every detail about the ordeal that she could recall. Mrs. Clemons told the police officers that she did not know the intruder's name, but she told them to contact her neighbor across the street because *65 she had contacted that neighbor when she had previously seen Saunders on the back of her property with the dog, and the neighbor had indicated that she knew Saunders. Mrs. Clemons testified that she sustained numerous injuries as a result of Saunders's attack. She said that her lungs had contusions and were full of blood, that some of her ribs were fractured, and that she had suffered bruises to her face, head, and neck. Mrs. Clemons was hospitalized for several days as a result of the injuries Saunders inflicted. Photographs taken of Mrs. Clemons at the hospital the day after the attack depicted extensive bruising on Mrs. Clemons's face, chest, and abdomen. James Baggett, the physician who treated Mrs. Clemons at the hospital, testified that Mrs. Clemons appeared to have suffered a concussion that resulted in a loss of hearing; that many parts of her body were bruised; that she developed severe black eyes and her eyes were nearly swollen shut by the second day she was in the hospital; that an examination of her abdomen indicated that she had received a blow to the mid-stomach area; that the tissues in her chest that hold the heart in an upright position, the medastinum, were swollen and probably had blood mixed in with the fluid, which indicated that she had suffered a fairly severe blow to her chest; that bruises and swelling on the left side of her neck and shoulder were consistent with trauma and indicated that some pressure was applied to that area of her body; and that she had pulmonary contusions on both lungs that impaired the flow of oxygen and that probably resulted from blunt-force trauma to the chest. In addition, Dr. Baggett testified that on the afternoon of July 10, 2004, the day after the attack, Mrs. Clemons went into heart failure, most likely as a result of decreased oxygen supply to the heart; that she was placed in the hospital's intensive-care unit; and that the problem took several days to resolve.
Terry Fent, a police officer with the Foley Police Department, testified that he and two other officers were dispatched to the Clemonses' residence in response to Mrs. Clemons's emergency call. After conducting a protective sweep of the house, the officers spoke with Mrs. Clemons. Mrs. Clemons told the officers that her husband was handcuffed in a car or truck in the backyard. She described her attacker as a slender, tall, white male with light-colored hair; she said he was wearing yellow shorts but no shirt. Mrs. Clemons also told the officers that she thought she had seen the man before and that he might be a neighbor. Dempsey Hunt, an officer with the K-9 unit of the Foley Police Department, testified that he was also called to the Clemonses' residence on the night of July 9, 2004. Officer Hunt testified that he had been told that the suspect fled from the house through the back door, so he took his tracking dog to the back door, but the dog did not pick up a scent. As Officer Hunt and another officer walked in the backyard, however, they noticed a flashlight on the ground near a truck. Officer Hunt then commanded his dog to track from the flashlight, and the dog walked toward the hedgerow at the edge of the Clemonses' property. At approximately the same time, Stephen Smith, a corporal with the Foley Police Department, positioned his police cruiser in the yard so that its headlights illuminated some of the backyard. The officers then saw Mr. Clemons's body approximately 50 to 75 yards from the residence, near a hedgerow that separated the Clemonses' property from a mobile home park. Mr. Clemons appeared to have sustained severe head wounds and was dead when the officers found him. One of the pockets on Mr. Clemons's pants was turned inside out and there appeared to be an area of blood on the pocket. An opened knife sheath *66 was on Mr. Clemons's belt, and a folded or unopened knife was found under Mr. Clemons's body. In addition, a crowbar with what appeared to be blood, tissue, and hair on it was found on the back patio, leaning against the Clemonses' house.
After discovering Mr. Clemons's body, the officers and the tracking dog walked through the hedgerow where Mr. Clemons's body was found and continued to track the suspect. The dog led the officers to a mobile home located near the back of the Clemonses' property. The police officers spoke to the people in the mobile homeSaunders's mother and his younger brother, L.B. Saunders ("L.B.") but neither revealed any information useful to the police officers, and the dog did not pick up any tracks in the area. As officers were returning to the Clemonses' house, however, they received information that Mrs. Clemons, who was then in the emergency room, had told Tony Fuqua, a sergeant with the Foley Police Department, that she believed that her attacker might have been a neighbor. Upon learning this information, the officers returned to the Saunderses' mobile home on the adjacent property. When the officers spoke to Saunders's mother a second time, she told them that another of her sons also lived in the mobile home, but that he had left between 5:00 p.m. and 7:00 p.m. that evening. She allowed the officers to look inside the mobile home, but L.B.'s girlfriend was the only other person inside. L.B. told the police that two friends, Eric Bright and Melissa Dallas, had visited him at the mobile home earlier that evening and that they had left approximately 45 minutes earlier, around the time the police had received the emergency call from Mrs. Clemons.
Bright and Dallas both testified at trial that they knew Saunders, and Bright testified that he had worked with Saunders. Bright and Dallas were at the Saunderses' mobile home visiting L.B. during the evening hours of July 9, 2004, when someone knocked on the door and L.B. went outside briefly. Dallas testified that when L.B. came back inside, he told them to leave, so she and Bright went outside, where they saw Saunders, who was wearing shorts and no shirt. Bright and Dallas both testified that Saunders was out of breath, and Dallas said that Saunders was sweating and looked like he had been running or jogging. Saunders asked Bright for a ride as the couple was preparing to leave; he told Dallas and Bright that he had gotten into an argument and wanted a ride to a friend's house in Gulf Shores. Bright agreed to give Saunders a ride to Gulf Shores, but while they were still in the Foley area, Saunders told Bright to slow down, and he jumped out of the back of Bright's truck.
Kye Belser, an officer with the Foley Police Department testified that on July 10, 2004, he received information that Saunders might be at a mobile home on North River Road in Foley. He and another Foley police officer, Officer Randolph Stallworth, drove their patrol cars to that residence; Officer Belser went to the front door of the residence, and Officer Stallworth went to the back door. As they knocked on the doors, Officer Belser heard Officer Stallworth say something like, "coming your way," so Officer Belser stepped off the porch to look for something that might be coming around the mobile home. (R. 674.) Officer Belser saw Officer Stallworth walking toward the front of the mobile home with Matthew Saunders, another of Saunders's brothers. Matthew told the officers that Saunders was under the mobile home. Officer Belser could not see under the mobile home because it was dark, but he told the person that if he did not come out, a police dog would be sent to get him. Saunders then came out from *67 under the mobile home and was taken into custody.
David White, a lieutenant with the Foley Police Department, and Sgt. Fuqua interviewed Saunders at the Foley Police Department. Saunders told the officers that he had been smoking crack cocaine for two or three weeks and that he was dependent on the drug. He initially told the officers that Mr. Clemons had previously purchased crack cocaine from him and that Mr. Clemons had attempted to purchase more crack cocaine from him on July 9, 2004, but that he did not have money to pay for the drug, so he and Mr. Clemons argued and he then punched Mr. Clemons. However, Sgt. Fuqua told Saunders that he knew that Saunders was lying because he had known Mr. Clemons for years and knew that Mr. Clemons was a religious man who did not smoke crack cocaine. Sgt. Fuqua testified that Saunders then broke down in tears, expressed remorse, and agreed to tell them the truth. However, Saunders said that he would only speak with Sgt. Fuqua, and the remainder of the interview continued without Lt. White.
Saunders told Sgt. Fuqua that he had purchased crack cocaine twice on July 9; the first time he purchased and smoked $50 worth of the drug, the second time he purchased $100 worth of the drug. Saunders said that he went onto the property next to his mother's mobile home, on the other side of a hedgerow, to smoke the last of his crack cocaine because he was ashamed of smoking crack, and he did not want to be near his mother's mobile home when he was ingesting the drug. Saunders said that Mr. Clemons saw him and asked him what he was doing there, and that he told Mr. Clemons that he was getting high; Mr. Clemons then yelled at him and told him to get off the property. Saunders told Sgt. Fuqua that as Mr. Clemons turned to leave, Saunders heard him say something about calling the police; that he became infuriated; and that he then picked up the crowbar and hit Mr. Clemons on the head several times. Saunders said that he was not sure, but that he believed Mr. Clemons was dead. Saunders acknowledged that he had borrowed the crowbar from Mr. Clemons earlier that day.
Saunders told Sgt. Fuqua that after he hit Mr. Clemons, he wandered around to clear his head, and then decided to approach the Clemonses' house to try to take any valuables so that he could buy more crack cocaine. He admitted that he feigned an asthma attack and that Mrs. Clemons then let him inside the house. Saunders said that he became angry when Mrs. Clemons tried to call for help, and he grabbed her from behind. Saunders also said that he smoked crack cocaine in the house several times and that Mrs. Clemons had poured a glass of milk for him; according to Saunders, milk helped calm him when he smoked crack cocaine. Sgt. Fuqua asked Saunders about the Windex brand glass cleaner, and Saunders told him that he had used the Windex to wipe down every place he touched to try to destroy fingerprint evidence. Saunders told Sgt. Fuqua that he did not intend to kill or to rape Mrs. Clemons and that he took Mrs. Clemons to a back bedroom so that he could shut the door and escape. Saunders said that after he ran out the back door of the house, he heard a gunshot and he went to his mother's mobile home. Saunders admitted that he later left the area with Bright and Dallas.
Scott Black testified that he was near Underwood Road between 10:00 or 10:30 p.m. on July 9, 2004. Black testified that, as he backed his vehicle into a friend's driveway, his headlights were shining onto Underwood Road. Black said that he heard a gunshot, and that he then saw a man *68 walking quickly and looking behind him. According to Black, the man was wearing yellow shorts and tennis shoes, but no shirt.
Michael Norris, Jr., testified that he lived with his mother, his stepfather, and Saunders's brother, Matthew, in the mobile home where Saunders was arrested. Norris said that he grew up with Matthew, and that he had known Saunders for a long time. Norris stated that on the night of July 9, 2004, he was in the garage with his uncle and Matthew when Saunders walked up to them and said that someone had dropped him off behind the mobile home and that he wanted to talk to Matthew. Norris said that he did not initially recognize Saunders when he walked up "because [Saunders] had red stains all over him" (R. 759), and that the red stains made him suspicious so he listened to Saunders while he talked to Matthew. Norris said that he overheard Saunders tell Matthew that he had hit someone on the head with a crowbar and that he thought he had killed the person. Norris testified that he told his mother that she should not let Saunders spend the night with them, but that Saunders told Norris's mother only that he had fought with someone, and she allowed Saunders to spend the night at their residence. Saunders changed clothes in Norris's room and left the clothing in that room. The following morning, a police officer went to the residence and recovered the yellow shorts Saunders had been wearing the night of the crime. DNA testing revealed that Mr. Clemons's blood was on Saunders's yellow shorts, as well as on the crowbar that was found on the Clemonses' back patio, and that Saunders's own blood was also on the yellow shorts. In addition, the parties stipulated that DNA testing revealed that Mrs. Clemons's blood was found on a telephone handset in the Clemonses' residence.
The Clemonses' house and the outbuildings on the property were photographed, the interior of the house was diagramed and videotaped, and numerous items of evidence were seized from the property. The photographs, videotape, and physical evidence corroborated Mrs. Clemons's testimony regarding the actions Saunders took while he was in the house with her. For example, the police photographed and recovered the steak knife, screwdriver, and extension cord that Mrs. Clemons testified Saunders had picked up and that she had ordered him to put down. The officers also found the glass of milk Saunders had told Mrs. Clemons to prepare for him and the bottle of Windex brand glass cleaner Saunders had used to spray the glass after he drank from it. In addition, the police documented that the contents of Mrs. Clemons's purse had been emptied onto a bed, and a search of the area near the Clemonses' house revealed two sets of keys and several playing cards with nude women portrayed on them.
Kathleen Enstice, a forensic pathologist employed as a medical examiner with the Alabama Department of Forensic Sciences in July 2004, testified that she performed the autopsy on Mr. Clemons. Dr. Enstice testified that Mr. Clemons was 5 feet, 7 inches tall and that he weighed 139 pounds. No drugs or alcohol were found in Mr. Clemons's blood or urine. Dr. Enstice's examination of Mr. Clemons's body revealed that he had sustained three categories of injuries: blunt trauma to the head and neck; compression of the neck, or strangulation; and blunt-force trauma to the torso. Dr. Enstice explained:
"The first [category] I called blunt trauma of the head and neck, which included multiple-patterned blunt force injuries to the scalp, which I labeled A through *69 F. It's an arbitrary labeling, not to say one came first or last.
"Depressed comminuted, which are multiple fragmentation and displaced fracturing of the skull. Multiple lacerations, laceration is a tear, of the dura mater which surrounds the brain. Traumatic disruption. Hemorrhages, contusions, which are bruises, and swelling of the brain. I then appended a separate brain report where I'm justwhere I do describe the specific injuries of Mr. Clemons' brain.
"The next under the head and neck injury, again, multiple subgaleal contusions of the head. These are deep, deep contusions beneath the scalp that you can see on the surface of the skull.
"Diffused hemorrhage in subcutaneous tissues, that's underneath the skin; muscles; facial, which is just a dividing plain; and ligaments of the posterior base or back of the head and the back of the neck, posterior neck; multiple contusions, again, those are bruises; abrasions, which are scrapes or scratches; and lacerations, which are tea[rs] of the skin.
"The second listing I put under the final diagnosis, compression of neck. Underneath that, I put hemorrhage in the deep muscles and the soft tissues adjacent to the larynx, which is the area you can feel in the front of your neck, kind of where the Adam's Apple region is and where the vocal cords are. Multiple bilateral, both right and left.
"Scleral and conjunctival petechial hemorrhages. Scleral hemorrhages are in the white part of the eyes. Conjunctival hemorrhages are inside the upper and lower eyelids. Multiple petechial hemorrhages of the upper and lower buccal mucosa, and that is basically the inside of the lips, upper and lower inside of the lips. And petechia of the skin surrounding the left eye.
"The next listing under compression of the neck was contusions, again, bruises and abrasions which are scratches of the skin of the neck.
"The next category I broke down was blunt trauma of the torso, and under that, contusions of the skin; in other words, bruising of the skin. The next category, blunt trauma of the left upper extremity, which was contusions of the left wrist; in other words, a bruise of the left wrist."
(R. 614-16.) Dr. Enstice determined that the manner of Mr. Clemons's death was homicide and that the cause of his death was blunt-force trauma to the head.
Dr. Enstice testified that she found numerous bruises, scrapes, and tears on Mr. Clemons's face. Dr. Enstice noted a large area of bruising on the left side of Mr. Clemons's face, in front of his left ear; the skin of his left upper eyelid was torn and surrounded by a bruise; a number of small bruises were noted on the left side of his forehead; a prominent bruise with swelling was noted around his right eye, and that area included small tears in the skin; bruises were noted on Mr. Clemons's mouth, nose, and left jawline; the top of Mr. Clemons's nose was bruised and scraped; and the inside of Mr. Clemons's lower lip was bruised, scratched, and torn. Dr. Enstice testified that, in her opinion, the injuries to Mr. Clemons's eyes and nose were caused by direct blows to his face. Dr. Enstice also testified that the injuries were inflicted while Mr. Clemons was alive, and that they would have been painful, but not fatal.
Dr. Enstice also testified that Mr. Clemons sustained six blunt-force injuries to his head. One of the injuries tore the cartilage of Mr. Clemons's right ear and caused a large purple bruise that extended onto *70 the skin in front of his ear. Dr. Enstice testified that brain tissue could be seen inside Mr. Clemons's right ear canal, which indicated that the bony ear canal had been fractured. Another injury was a gaping wound behind Mr. Clemons's right ear; that injury caused skull fractures beneath the tear in the skin and Dr. Enstice testified that she could see brain material and blood inside Mr. Clemons's head from that open wound. Other injuries tore through the skin on Mr. Clemons's head and caused bruising. The final blunt-force head injury that Dr. Enstice noted was very close to the top of Mr. Clemons's head; the skin was torn, and his skull was exposed.
Dr. Enstice testified that Mr. Clemons also sustained injuries to his neck, including bruises on the surface of the skin and bruises deep inside the neck. Dr. Enstice removed what she described as the "deep-neck structures" from Mr. Clemons's neck and observed a large area of hemorrhage that is usually caused by compression of the neck. (R. 632.) The injuries to the internal structures of the neck, combined with the hemorrhages in Mr. Clemons's upper and lower inner eyelids and in the whites of his eyes, led Dr. Enstice to conclude that, in addition to being beaten, Mr. Clemons was strangled and that he was alive when he was strangled. She stated, however, that if a ligature or a rope were used in the strangulation, she would have expected to see a pattern on the external surface of the skin or in the muscles of the neck, but that she observed no such pattern, and that Mr. Clemons's neck had linear scratches which could have been caused by fingernails during manual strangulation. Dr. Enstice testified that the strangulation was only partial and that, although it was painful and might have contributed to Mr. Clemons's death, the strangulation did not cause his death.
Finally, Dr. Enstice testified that Mr. Clemons was struck on his back near the time of his death and that the injury caused a prominent bruise. Dr. Enstice testified that the injury to Mr. Clemons's back was likely caused by a blow from behind.
Dr. Enstice examined and measured the crowbar that the police found propped against the Clemonses' house near the back door. Dr. Enstice determined that the blunt-force injuries to Mr. Clemons's head were consistent with the crowbar. She stated that the six blows to Mr. Clemons's head were delivered with tremendous force because the skull was fractured "pretty much everywhere except for over the left eye." (R. 644.) Dr. Enstice testified that the blow to the right side of Mr. Clemons's head that tore his ear and fractured his skull also severely injured the brain and would have been fatal. Dr. Enstice testified that the blow to the top of Mr. Clemons's head would have incapacitated him and also would have been fatal because it caused severe fractures to the base of Mr. Clemons's skull. According to Dr. Enstice, these injuries to the top of the head and to the right side of the head by the ear were so severe that Mr. Clemons's death would have followed either one of these injuries in less than a minute, and closer to seconds. However, the blood-spatter pattern from the blow to the top of Mr. Clemons's head flowed downward, indicating that Mr. Clemons was in an upright position when he was struck on top of the head, but the rest of the blood from his head wounds drained toward his face, which, Dr. Enstice testified, was consistent with him being facedown on the grass when the other blows to the head were struck. Dr. Enstice also testified that the wounds to Mr. Clemons's face could not have been inflicted after he fell to the ground from the blow to the top of his head; therefore, Dr. Enstice testified, the *71 injuries to Mr. Clemons's face had to have been inflicted before the fatal blows were struck.
Saunders testified in his own defense. Saunders acknowledged that he smoked crack cocaine and testified that he had purchased crack cocaine twice on the day he killed Mr. Clemons. He stated that, although he had never directly spoken with Mr. or Mrs. Clemons, he had previously been to the Clemonses' residence with his mother to get some peaches. Saunders testified that, the day of the murder, he had borrowed a crowbar from Mr. Clemons to work on a "clubhouse" he was building "as a place for me to go and smoke my crack and for neighborhood children around there." (R. 915.) However, Saunders admitted that he knew that by borrowing the crowbar, he would "have a reason to be around the property." (R. 983.) Saunders claimed that he and his family had planned to move away from the area on July 10, 2004, the day after he borrowed the crowbar and killed Mr. Clemons.
Saunders testified that on the night of the murder, he was going to take the crowbar back to Mr. Clemons when he stopped on the Clemonses' property to smoke crack. Mr. Clemons walked up to him and asked him what he was doing, and Saunders told him that he was "getting high." (R. 920.) Mr. Clemons told Saunders to leave his property and then turned and walked away. Saunders testified that he "heard [Mr. Clemons] say something about the law or police maybe. And I had gotten scared at that point, and I hit Mr. Clemons in the back of the head with the crowbar." (R. 920.) Saunders testified that he did not remember strangling or choking Mr. Clemons, nor did he remember going through Mr. Clemons's pockets. He said he might have done so, but he could not recall because he was high on crack. Saunders also testified that he could not remember how many times he hit Mr. Clemons with the crowbar. Saunders testified that he did not know why he went to the Clemonses' house after he hit Mr. Clemons, but that "[m]aybe I was thinking for more money." (R. 923.)
Saunders admitted that he had feigned an asthma attack in order to gain entry into the house and that he grabbed Mrs. Clemons around the neck and led her from room to room. When asked what he was thinking about when he dragged Mrs. Clemons through all the rooms in the house, Saunders replied that "[a]pparently it was for money." (R. 971.) Saunders admitted that while he was inside the Clemonses' house he took money from Mrs. Clemons's purse and from Mr. Clemons's wallet. Saunders remembered that Mrs. Clemons escaped and ran outside, and he remembered knocking her to the ground. He said that he did not remember dragging Mrs. Clemons back into the house, but that he recalled Mrs. Clemons being back inside the house and asking him to telephone emergency 911 because she was having chest pains. Saunders also testified that he remembered spraying Windex brand glass cleaner on the telephone in the kitchen and said that he "must have been spraying it to get rid of a fingerprint on the phone." (R. 969.) Saunders acknowledged that he smoked crack cocaine while he was inside the house and that he showed Mrs. Clemons the playing cards with the naked women on them. Saunders testified that he might have told Mrs. Clemons that he was going to make her pose like the women on the cards, but that he could not recall. Saunders testified that he took Mrs. Clemons to a back room; that he hit her, causing her to fall down; that he walked toward the back door to leave the house; that when he got to the back door, he saw that Mrs. Clemons was pointing a shotgun at him; *72 and that Mrs. Clemons fired a shot after he was outside.
Saunders testified that after he left the Clemonses' residence he returned to his mother's mobile home, spoke to his brother, L.B., and then asked Eric Bright for a ride. Saunders said he went to the place where his younger brother, Matthew, was staying, and that he told Matthew that he had "screwed up," but that he could not remember what else he told his brother. (R. 933.) Saunders said that he then ingested drugs and alcohol and "drifted off to sleep" until Matthew woke him up the next morning and told him that a police officer was outside. (R. 934.) Saunders admitted that he ran outside and hid beneath the mobile home because he knew that he had done something wrong the night before.
At the penalty phase of the trial, Saunders presented evidence regarding his childhood, his mental health, and his prison record. Marie Saunders Young, Saunders's older sister, testified about the members of the Saunders's family and about their chaotic upbringing. Young testified that when she and her five brothers were growing up, the family moved frequently and lived in several small houses, a hotel, small mobile homes, and an abandoned building. They were often evicted for failing to pay the rent, and they often did not have electricity or running water in the places they lived. Young stated that their parents were violent toward each other and that they drank alcohol to excess. Young said that it was she, not her parents, who took care of the house and her brothers, and who made sure the boys went to school, had clean clothes, did their homework, and completed the chores she had assigned to them. According to Young, their mother hit all the children with mop and broom handles and other objects as corporal punishment. Young said that, although she graduated from high school, Saunders quit school in the middle of the sixth grade, when he was 13 or 14 years old. Young testified that she and her husband had let Saunders live with them for awhile at one point; that her husband taught Saunders carpentry; and that Saunders worked with her husband. However, Young testified that Saunders "was doing a long list of drugs" and drank alcohol. (R. 1151.) She also testified that Saunders had attempted suicide; according to Young, Saunders once attempted to shoot himself in the head with a nail gun, but failed because someone had unplugged the gun.
Joanne Terrell, a certified clinical social worker, completed a psychosocial assessment of Saunders. Terrell testified that the focus of a psychosocial assessment is on a variety of environmental factors, including the person's childhood, adolescence, family history, school and work history, drug and alcohol problems, family relationships, and psychiatric problems. Terrell testified about the details she learned about Saunders' upbringing, which she described as "disastrous" (R. 1258), and concluded, among other things, that Saunders grew up in a neglectful, abusive, and dangerous environment; that he witnessed domestic violence and was a victim of violence in his home; that Saunders lived in an impoverished and "gypsy-type environment" (R. 1261); that he became anxious and depressed and had learned to deal with his feelings by ingesting drugs and alcohol and that he developed a significant dependency on drugs and alcohol; and that on the night of the crimes for which Saunders was convicted in this case, his acute drug and alcohol intoxication, combined with what Terrell believed to be Saunders's psychological disorder, had resulted in Saunders's having a diminished capacity to appreciate his actions. On cross-examination, however, Terrell acknowledged *73 that Saunders had told her associate who interviewed him that he had had a good childhood, that he had all the food and clothing he needed, and that he had received gifts for birthdays and Christmases. Terrell also acknowledged that her report inaccurately stated that Saunders's parents had divorced when he was 10 or 11 years old, when, in fact, they had divorced when Saunders was approximately 6 years old. Therefore, Terrell admitted, Saunders did not observe physical violence between his parents after he was 6 years old.
Stanley Brodsky, a clinical psychologist, evaluated Saunders before trial. Dr. Brodsky conducted a forensic clinical interview, reviewed available psychiatric records, and administered three psychological tests to Saunders. Dr. Brodsky found no information suggesting that when Saunders committed the crimes for which he was convicted he was unable to differentiate between right and wrong; Dr. Brodsky also found no evidence that Saunders was unaware of his actions or that he was unable to appreciate the wrongfulness of his actions. Dr. Brodsky concluded that Saunders suffered from a major depressive disorder "with mood congruent psychotic features" (R. 1196), and explained that Saunders had reportedly experienced auditory hallucinations, a voice telling him to "just go ahead and do it," which was related to his past suicide attempts. (R. 1197.) Dr. Brodsky determined that Saunders had a history beginning in early adolescence "of a huge intensity and volume of alcohol and drug abuse, almost every imaginable, available illegal drugs and lots and lots of legal drugs that he used as well as large amounts of alcohol," which led Dr. Brodsky to diagnose Saunders as suffering from polysubstance dependency. Dr. Brodsky also concluded that Saunders could control himself, but that he had a diminished capacity to control himself when he committed the crimes, and that the diminished capacity was the result of his psychological disorder and the drugs he had ingested.
Calvin Means, Jr., classification officer at Baldwin County Correctional Facility, testified that Saunders was in the "high max" classification at the facility (R. 1176), but that, during the 13 or 14 months that Saunders had been at the facility, he had received no disciplinary citations.
After the jury unanimously recommended that Saunders be sentenced to death, Saunders sent three letters to the trial court, which the court included in the record as court's exhibits. In one letter, Saunders merely asked to speak privately with the judge. However, in the other two letters, Saunders asked the judge to impose the death sentence as the jury had recommended. Specifically, Saunders wrote that he had done the right thing by admitting to the crime because it had cleared his conscience and that he knew that he had "really messed up" and that he deserved "the max." (Ex. 232.)[5]
On appeal, Saunders raises 17 issues, many of which he did not raise by objection in the trial court.[6] Because *74 Saunders was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal. See Dill v. State, 600 So. 2d 343 (Ala.Crim.App.1991), aff'd, 600 So. 2d 372 (Ala.1992); Kuenzel v. State, 577 So. 2d 474 (Ala.Crim.App.1990), aff'd, 577 So. 2d 531 (Ala.1991).
Rule 45A, Ala.R.App.P., provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
"Plain error" has been defined as error "`so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So. 2d 766, 769 (Ala. 1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's `substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations." Hyde v. State, 778 So. 2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So. 2d 237 (Ala.2000). This Court has recognized that "`[t]he plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Burton v. State, 651 So. 2d 641, 645 (Ala.Crim. App.1993), aff'd, 651 So. 2d 659 (Ala.1994), quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985), quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982).
I.
Saunders contends that the trial court erred in granting the State's challenges for cause as to several jurors. (Issue XVI in Saunders's brief).
Saunders's entire argument in this regard is as follows:
"Timothy Saunders contends that jurors were improperly excused for cause. The jurors were struck when they did not fully meet the test to be excused. The jurors were in the process of being death qualified, when they were ambivalent at first questioning, about their ability to sentence someone to death. After additional questioning, more specific in nature, these jurors indicated that they could fully comply with the law in every way. These jurors then were excused for cause, resulting in prejudice to Timothy Saunders, as an initial ambivalence is not disqualifying.
"These jurors did pass the test as stated in Witherspoon v. Illinois, 391 U.S. 510 (1968). Disqualification of these jurors, who were qualified to sit on this jury, prejudiced Timothy Saunders by striking for cause jurors who could, and said that they would, be reasonable while following the law.
"The conviction is contrary to United States and Alabama law. The convictions and sentences are due to be reversed."
(Saunders's brief at p. 77.) Saunders does not identify in his argument which veniremembers he believes were erroneously struck for cause. However, in the statement of facts in his initial brief, Saunders states: "Defense Counsel objected to striking for cause jurors numbered 4, 45, and 51.... They only stated a preference not to vote for the death penalty. (R. 288, 341.)" (Saunders's brief at p. 6.) In addition, *75 Appendix A of Saunders's brief contains a summary of adverse trial court rulings, where he lists page numbers 228 and 341 for his objections to the strikes of the three veniremembers. Therefore, we conclude, as did the State in its brief on appeal, that Saunders's argument on appeal relates solely to the striking of veniremember no. 4, J.E.C.; veniremember no. 45, J.L.M.; and veniremember no. 51, J.W.C. Saunders objected to the striking of J.L.M. and J.W.C. However, he did not object to the striking of J.E.C.; therefore, we review that claim under the plain-error rule. See Rule 45A, Ala.R.App.P.
The transcript and the jury strike list indicate that not only did Saunders not object to J.E.C.'s being removed a juror, but Saunders agreed to J.E.C.'s being removed. Specifically, the record reflects the following exchange:
"[Prosecutor]: Can I just say one thing? I don't think it will affect your consideration since we do have plenty, while thewhile I don't think he should be struck for cause, we don't, since we have enough if the Court would like to let [J.E.C.] go, since he has relatives coming in to visit him, the State would have no objection.
"[Saunders's counsel]: Neither would the Defense, Your Honor.
"....
"THE COURT: We'll strike number [J.E.C.] by agreement. ..."
(R. 342-43.) Thus, it is clear that J.E.C. was not struck for cause, as Saunders appears to argue on appeal, but was removed by agreement of the parties, and we find no error, plain or otherwise, as to this claim.
With respect to the striking for cause of veniremembers J.L.M. and J.W.C., the record reflects that during questioning by defense counsel during voir dire, J.L.M. stated that he would never vote for the death penalty. Specifically, he said: "If given those two options, life without parole or death, I would universally vote against the death penalty. I don'tI can't support the death penalty in any case." (R. 332.) J.L.M. stated that he understood that the death penalty was part of the criminal justice system and the laws of the State of Alabama, but he stated that he did not agree with them. J.L.M. also stated that, even if the trial judge instructed him to consider the death penalty as a sentencing option, there was no circumstance that he could think of in which he would vote to impose the death penalty. (R. 332-33.) J.W.C. stated during questioning by defense counsel that he could not consider the death penalty as a sentencing option for Saunders. J.W.C. said that he could not vote to impose the death penalty on Saunders because, he said, "he reminds me too much like a grandson or something, and I think I would have that emotion and I don't think I could put it aside." (R. 331.) J.W.C. also said that he could not set aside his personal feelings and follow the trial court's instructions to consider the death penalty for Saunders.
"A trial judge is in a decidedly better position than an appellate court to assess the credibility of the jurors during voir dire questioning. See Ford v. State, 628 So. 2d 1068 (Ala.Crim.App. 1993). For that reason, we give great deference to a trial judge's ruling on challenges for cause. Baker v. State, 906 So. 2d 210 (Ala.Crim.App.2001)."
Turner v. State, 924 So. 2d 737, 754 (Ala. Crim.App.2002).
"The `original constitutional yardstick' on this issue was described in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Under Witherspoon, before a juror could be removed for cause based on the juror's *76 views on the death penalty, the juror had to make it unmistakably clear that he or she would automatically vote against the death penalty and that his or her feelings on that issue would therefore prevent the juror from making an impartial decision on guilt. However, this is no longer the test. In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the United States Supreme Court held that the proper standard for determining whether a veniremember should be excluded for cause because of opposition to the death penalty is whether the veniremember's views would `"prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."' [Quoting Adams v. Texas, 448 U.S. 38, 45 (1980).] The Supreme Court has expressly stated that juror bias does not have to be proven with `unmistakable clarity.' Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)."
Pressley v. State, 770 So. 2d 115, 127 (Ala. Crim.App.1999), aff'd, 770 So. 2d 143 (Ala. 2000). See also Uttecht v. Brown, 551 U.S. 1, ___, 127 S. Ct. 2218, 2224, 167 L. Ed. 2d 1014 (2007) ("[A] juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible.").
A review of the voir dire examination of J.L.M. and J.W.C. clearly demonstrates that each veniremember unequivocally stated that he would not be able to consider or vote for the death penalty in this case and that he could not set aside his personal beliefs and follow the trial court's instructions as to the sentencing options. Clearly, J.L.M.'s and J.W.C.'s views on the death penalty would have substantially impaired the performance of their duties as jurors. The trial court did not abuse its discretion when it granted the State's challenges for cause as to J.L.M. and J.W.C.
II.
Saunders contends that the jury that tried his case was improperly selected. (Issue I in Saunders's brief.) Specifically, he argues that the trial court did not comply with the procedure outlined in Rule 18.4(f), Ala. R.Crim. P., which provides that the prosecutor and defense counsel shall alternate striking names from the list of veniremembers until only 12 names remain on the list. Instead, Saunders argues, "[j]urors were struck by agreement or as a result of negotiation." (Saunders's brief at p. 57.) Saunders did not object in the trial court on the ground that the procedure set forth in Rule 18.4(f), Ala. R.Crim.P., was not followed during the selection of the jury; therefore, our review of this issue is for plain error. See Rule 45A, Ala.R.App.P.
The record reflects that voir dire examination of the prospective jurors was conducted in panels during a two-day period beginning on August 22, 2005, and ending on August 23, 2005. The trial court asked general questions of each panel of veniremembers and the parties were permitted to ask voir dire questions of each panel thereafter. Individual voir dire questioning of some of the veniremembers on each panel then followed the group questioning. After each panel was questioned, the trial court then considered and ruled on the parties's challenges for cause. The parties sometimes agreed on the challenges for cause, or stated that they had no objection to the challenges made by the other party. Forty-four veniremembers remained after voir dire examination was conducted and challenges for cause were made. At the end of the second day of the *77 jury-selection process, the trial court recessed for the day, instructing the attorneys to be back at 8:30 a.m. the next morning to strike the jury. However, the striking of the jury is not transcribed in the record. Rather, the transcript resumes the following day, August 24, 2005, at approximately 9:11 a.m., just before the jury was brought in the courtroom and sworn. At that time, Saunders made motions unrelated to this issue, and the trial court considered the motions.
"`It is the appellant's duty to provide this Court with a complete record on appeal.' Knight v. State, 621 So. 2d 394, 395 (Ala.Crim.App.1993). `"Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done."' Owens v. State, 597 So. 2d 734, 736 (Ala.Crim.App.1992), quoting Jolly v. State, 405 So. 2d 76, 77 (Ala.Crim.App. 1981). `This court will not presume error from a silent record.' Frazier v. State, 758 So. 2d 577, 600 (Ala.Crim. App.), aff'd, 758 So. 2d 611 (Ala.1999), cert. denied, 531 U.S. 843, 121 S. Ct. 109, 148 L. Ed. 2d 66 (2000). See also Roberts v. State, 627 So. 2d 1114, 1116 (Ala.Crim. App.1993)."
Johnson v. State, 823 So. 2d 1, 18 (Ala. Crim.App.2001). "The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred." Ex parte Watkins, 509 So. 2d 1074, 1077 (Ala.1987).
Saunders's argument to this Court that the jury was selected in violation of Rule 18.4(f), Ala.R.Crim.P., is not supported by the record. Furthermore, although the striking of the jury is not transcribed in the record, the jury strike list is included in the record, and it indicates that the prosecutor and Saunders selected the jury using the striking process set forth in Rule 18.4(f), alternately striking names of veniremembers until only the names of the jurors and the alternate jurors remained. Because nothing in the record reflects that the jury striking procedure was conducted in violation of Rule 18.4(f), Saunders's argument in this regard is meritless. Therefore, we find no error, plain or otherwise, as to this claim.
III.
Saunders contends that the trial court erred in denying his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). (Issue II in Saunders's brief.) Specifically, Saunders argues that the prosecutor struck veniremember no. 8, A.A., and veniremember no. 238, E.W., solely on the basis of race, and that the trial court erred when it found that he had failed to make out a prima facie case of racial discrimination. Saunders further argues that nearly all of the factors set forth in Ex parte Branch, 526 So. 2d 609, 622-23 (Ala.1987), indicating racial discrimination were present in his case.
The record reveals that the following occurred after the jury was selected:
"[Saunders's counsel]: Yes, Your Honor, as to the State's striking Juror No. 8, [A.A.]. She was the black female. The State had also struck No. 238 [E.W.]. Those are the only two black women that were on the jury voir dire selection list after, by agreement, we had let the other one go yesterday. It's not a fair representation of the community. The State has not cited any race-neutral reason for striking those two people.
"THE COURT: Anything else, [Saunders's counsel]?
"[Saunders's counsel]: As far as the venire, no.
*78 "THE COURT: The motion is denied."
(R. 351.)
In Ex parte Walker, 972 So. 2d 737 (Ala. 2007), the Alabama Supreme Court recently stated:
"This Court has stated:
"`The burden of persuasion is initially on the party alleging discriminatory use of a peremptory challenge to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider "all relevant circumstances" which could lead to an inference of discrimination.'
Ex parte Branch, 526 So. 2d 609, 622 (Ala.1987). "An objection based on numbers alone, however, does not support the finding of a prima face case of discrimination and is not sufficient to shift the burden to the other party to explain its peremptory strikes. Ex parte Trawick, 698 So. 2d 162 (Ala.1997).
"Here, the trial court did not err in holding that Walker did not present a prima facie case of discriminatory use of peremptory strikes by the State. Walker's objection was based totally on the number of African-Americans the State struck from the jury. When the trial court asked for facts or evidence to support the objection, Walker was unable to provide any. The trial court properly concluded that Walker had not presented a prima facie case of discriminatory use of peremptory strikes."
972 So.2d at 741-42.
The circumstances before us are the same as those before the Alabama Supreme Court in Ex parte Walker. Saunders's Batson motion was based solely on the basis that two black veniremembers were struck. Because Saunders relied on numbers alone when he objected to the State's strikes of the veniremembers, the trial court correctly denied Saunders's Batson motion because Saunders failed to establish a prima facie case of discrimination.
Saunders also argues for the first time on appeal that he established a prima facie case of discrimination because almost all of the factors listed in Ex parte Branch, 526 So. 2d 609, 622-23 (Ala.1987), were present in his case. Because Saunders did not present this argument to the trial court, we review it only for plain error. See Rule 45A, Ala.R.App.P. For an appellate court to find plain error in the Batson context, the court must find that the record raises an inference of purposeful discrimination by the State in the exercise of peremptory challenges. See, e.g., Ex parte Walker, 972 So.2d at 742, and the cases quoted therein. However, the record in this case is scant. Although the record indicates that the veniremembers completed jury questionnaires, and although this Court requested that those questionnaires be forwarded to us for review, this Court has been informed by the circuit clerk's office that the questionnaires were destroyed after the jury was empaneled, in violation of Rule 18.2, Ala. R.Crim.P.[7] Therefore, our review of this issue is limited to the voir dire questioning by the trial court and the parties. Based on that review, however, we find no inference of purposeful discrimination by the State in the exercise of its peremptory strikes.
Therefore, we find no error, plain or otherwise, in the trial court's denial of Saunders's Batson motion.
*79 IV.
Saunders contends that the trial court erred when it denied his motion to suppress the statement he gave to the police the day he was arrested. (Issue III in Saunders's brief.) He argues:
"Timothy Saunders was intoxicated on crack cocaine and beer, had been recently arrested, was mentally ill, and his will was overborne. The reliability of the confession that he made is further discredited by the fact that the tape recording of the confession was somehow not recorded, or lost, or otherwise somehow not available. The totality of the circumstances of the taking of this confession by these police officers, who later lost, or erased, or recorded over, the tape, makes the confession unreliable."
(Saunders's brief at p. 60.)
In his pretrial motion to suppress his statement, Saunders argued that his statement was the result of an illegal arrest; that his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), had not been explained to him; that he did not knowingly and intelligently waive his Miranda rights; and that the police did not have probable cause to arrest him and that he had not committed an offense prior to his arrest. (C. 35-36.) It appears that the trial court held a hearing on the motion and then denied it.[8] Saunders renewed his motion to suppress at trial, and the trial court again denied it. (R. 695.)
"A confession is presumed involuntary and it is the State's burden to prove by a preponderance of the evidence that Miranda warnings were given and that the accused voluntarily waived his Miranda rights. Coral v. State, 628 So. 2d 954 (Ala.Cr.App.1992), aff'd, 628 So. 2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S. Ct. 1387, 128 L. Ed. 2d 61 (1994); Lewis v. State, 535 So. 2d 228 (Ala.Cr. App.1988). In determining whether a statement is voluntary, a reviewing court must look at the `totality of the circumstances' surrounding the confession. McLeod v. State, 718 So. 2d 727, 729 (Ala.), on remand, 718 So. 2d 731 (Ala.Cr.App.), cert. denied, 524 U.S. 929, 118 S. Ct. 2327, 141 L. Ed. 2d 701 (1998)."
Smith v. State, 795 So. 2d 788, 808-09 (Ala. Crim.App.2000).
Regarding intoxication and its effect on the voluntariness of a confession, this Court has stated:
"In order for intoxication to render a confession inadmissible, it must be shown that the mind of the defendant was substantially impaired when the confession was made. Moore v. State, 488 So. 2d 27 (Ala.Cr.App.1986); Moore v. State, 415 So. 2d 1210 (Ala.Cr.App.), cert. denied, 415 So. 2d 1210 (Ala.), cert. denied, 495 U.S. 1041, 103 S. Ct. 459, 74 L. Ed. 2d 610 (1982), and cases cited therein. `Intoxication, short of mania or such impairment of the will and mind as to make an individual unconscious of the meaning of his words, will not render a statement or confession inadmissible.' Tice v. State, 386 So. 2d 1180, 1185 (Ala. Cr.App.), cert. denied, 386 So. 2d 1187 (Ala.1980). See also Palmer v. State, *80 401 So. 2d 266, 268 (Ala.Cr.App.), cert. denied, 401 So. 2d 270 (Ala.1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463 (1982)."
Jones v. State, [Ms. CR-05-0527, Aug. 31, 2007] ___ So.3d ___, ___ (Ala.Crim.App. 2007), quoting Hubbard v. State, 500 So. 2d 1204, 1218 (Ala.Crim.App.), aff'd, 500 So. 2d 1231 (Ala.1986). See also Brown v. State, 821 So. 2d 219, 224 (Ala.Crim.App.2000) (when a defendant alleges that his statement was involuntary because he was under the influence of drugs, "`it must be shown that the mind of the defendant was substantially impaired when the confession was made.' Moore v. State, 488 So. 2d 27, 30 (Ala.Crim.App.1986).").
Sgt. Fuqua testified that he and Lt. White began questioning Saunders together on July 10, 2004, at 9:50 a.m. at the Foley Police Department. The prosecutor offered into evidence a form signed by Saunders before he gave his statement in which Saunders acknowledged that his Miranda rights had been read to him, and that he was waiving those rights and was willing to make a statement. Sgt. Fuqua testified that he made no threats toward Saunders to make him agree to give a statement and that he made no promises to Saunders in exchange for a statement from him. Sgt. Fuqua further testified that Saunders did not appear to be impaired in any way or under the influence of drugs or alcohol at the time he gave his statements. According to Sgt. Fuqua, Saunders appeared to understand the questions he was asked and he responded appropriately to the questions. Saunders requested a break approximately 20 minutes after the interview began so that he could smoke a cigarette, and Sgt. Fuqua took Saunders outside so that he could smoke a cigarette. During that break, Sgt. Fuqua testified, he did not threaten Saunders or promise him anything in return for a statement. After the short break, Saunders told Sgt. Fuqua that he would talk about what happened at the Clemonses' residence but only if he could speak with Sgt. Fuqua alone, without Lt. White being present. Lt. White and Sgt. Fuqua agreed that Sgt. Fuqua would continue the interview alone, and Saunders gave a detailed statement admitting his involvement in the crimes against the Clemonses. Slightly more than one hour after the interview began, Sgt. Fuqua wrote a report of the details Saunders gave him during the interview.
Sgt. Fuqua testified that after Saunders confessed to the crimes, he asked Saunders to give a written statement with the details of events that had occurred on July 9, 2004, but that Saunders declined to do so. Sgt. Fuqua asked Saunders if he could tape-record the confession, and Saunders agreed to that request. Sgt. Fuqua then brought a tape recorder and an audiotape into the interview room, and he and Saunders went through the details of the interview again while the tape recorder was running. However, when Sgt. Fuqua attempted to listen to the recording two days later, he discovered that the interview with Saunders had not been recorded. Sgt. Fuqua testified that he believed that he had inadvertently hit the "play" button on the tape recorder instead of the "record" button because the tape was moving during the interview but nothing from the interview was recorded.
Lt. White testified that he initially participated with Sgt. Fuqua in the interview of Saunders. Lt. White stated that he did not promise Saunders anything or threaten him to get him to make a statement. Lt. White was present when Sgt. Fuqua explained the Miranda rights to Saunders, and Lt. White stated that Saunders appeared to understand his rights. Lt. White also testified that, as a law-enforcement *81 officer, he had been around many people who were under the influence of drugs or alcohol, and that Saunders did not appear to be impaired or under the influence of alcohol or a controlled substance.
Furthermore, Officer Belser, who took Saunders into custody after Saunders came out from his hiding place under a mobile home, testified that Saunders did not appear to be under the influence of alcohol or drugs at the time of arrest.
Finally, during his testimony at trial, Saunders gave details about his arrest and about the statement he gave to Sgt. Fuqua at the Foley police station. In addition, Saunders testified that his mind could clear up within 10 minutes of smoking crack cocaine, depending on how much he smoked. When the prosecutor asked Saunders how clear his head was while he was in the Clemonses' house, Saunders stated: "Truthfully, right there at the end is when it became almost clear, not clear-clear. I knew what I was doing wrong. I knew some what was going on. I knew I had done something wrong." (R. 954.) Although Saunders testified at trial that he could not recall all the details of the crime, he nevertheless testified to many of the same details that he had given to Sgt. Fuqua in his confession, including that he had hit Mr. Clemons on the head with the crowbar; that he had feigned an asthma attack to get inside the Clemonses' house; that he had smoked crack cocaine inside the house; that he had dragged Mrs. Clemons from room to room, struck her repeatedly, and taken money from her purse and from Mr. Clemons's wallet; and that he had left the area by asking his brother's friends to give him a ride.
Nothing in the record before us indicates that Saunders's statement was involuntary because he was under the influence of drugs or alcohol. To the contrary, all the testimony in the record indicates that Saunders was not under the influence of drugs or alcohol when he gave his statement. Saunders himself testified that his head cleared fairly quickly after he smoked crack cocaine, and that he was "almost clear" while he was still in the Clemonses' residence. Although Saunders testified that he ingested more drugs and drank alcohol after he committed the crime, neither Saunders nor any other witness testified that Saunders was under the influence of drugs or alcohol or that Saunders was in any way impaired several hours later when he gave his statement. Therefore, Saunders's statement was not due to be suppressed on the ground that Saunders was substantially impaired as a result of drug and alcohol intoxication.
As for Saunders's argument on appeal that his statement should have been suppressed because, he says, his will was overborne, we note first that Saunders did not present this specific argument in his motion to suppress; therefore, we review it only for plain error. See Rule 45A, Ala. R.App.P. In his appellate brief, Saunders does not elaborate on the bare assertion that his will was overborne or provide any facts or citations to the record in support of his claim. However, after thoroughly reviewing the record, we conclude that Saunders's argument in this regard is unsupported. The testimony in the record establishes that Saunders was not coerced or pressured into making his statement and that no inducements were offered to Saunders for making his statement. Viewing the totality of the circumstances, we conclude that no illegal inducements were offered to Saunders in order to induce a confession, and that his will was not overborne by any promises from any of the law-enforcement officers. Therefore, Saunders's confession was not due to be suppressed on this ground. See, e.g., *82 Brooks v. State, 973 So. 2d 380 (Ala.Crim. App.2007).
As for Saunders's argument on appeal that his statement should have been suppressed because, he says, he was suffering from a mental illness when he gave his statement, we note first that Saunders did not present this argument in his motion to suppress; therefore, we review it only for plain error. See Rule 45A, Ala.R.App.P. No evidence was presented at the guilt phase of the trial indicating that Saunders suffered from any type of mental illness; therefore, the record does not support Saunders's claim that a mental illness rendered his confession involuntary.[9] Thus, Saunders's confession was not due to be suppressed on this ground.
Finally, Saunders argues that the confession was not reliable and should not have been admitted into evidence because the police did not audiotape it. To the extent Saunders is arguing that the lack of an audiotape should be considered as part of the totality of the circumstances that a court must review to determine whether a confession is admissible into evidence, we note that this specific argument was not raised in the trial court; therefore, we review it only for plain error. See Rule 45A, Ala.R.App.P. However, Saunders offers no legal support for this assertion, and we find that the absence of an audiotape of a confession is not relevant to the admissibility of that confession. Rather, the absence of an audiotape is an issue that can be presented to the jury for it to consider in determining the weight and credibility of the confession. In this case, Sgt. Fuqua testified that he had attempted to make an audiotape of Saunders's confession when he and Saunders went through the details of the crimes for the second time but that a tape recording was not made, apparently because Sgt. Fuqua had pushed the wrong button on the tape recorder. The absence of an audiotape was an issue that Saunders could, and did, present to the jury for it to consider. Specifically, during cross-examination, Saunders questioned Sgt. Fuqua extensively about his failure to record the confession, and Sgt. Fuqua acknowledged that his testimony about the confession was based on his memory of the interview with Saunders. The absence of an audiotape did not render Saunders's confession inadmissible; therefore, Saunders's confession was not due to be suppressed on this ground.
For all of the foregoing reasons, we conclude that the trial court committed no error, much less plain error, in admitting Saunders's confession into evidence at trial.
V.
Saunders contends that the trial court erred when it permitted Officer Connie King to testify that Mrs. Clemons had identified Saunders's picture in a photographic lineup. (Issue IV in Saunders's brief.) Specifically, citing Thomas v. State, 461 So. 2d 16 (Ala.1984), he argues that Officer King's testimony was improper hearsay testimony. The State contends, on the other hand, that Officer King's testimony was cumulative because before Officer King testified about the lineup, Mrs. Clemons had already identified Saunders in court, and she testified *83 that she had identified Saunders in a photographic lineup after the crimes were committed. Therefore, the State argues, any error in Officer King's testimony was harmless. Because Saunders did not object to Officer King's testimony about Mrs. Clemons's identification of Saunders from the photographic lineup, we review this claim under the plain-error rule. See Rule 45A, Ala.R.App.P.
During direct examination by the prosecutor, Mrs. Clemons identified Saunders as the man who had committed the crimes in her house the night her husband was killed. On cross-examination by defense counsel, Mrs. Clemons also testified that she had selected Saunders's photograph from a photographic lineup. After Mrs. Clemons's testimony, Officer King testified that she had showed a photographic lineup to Mrs. Clemons and that Mrs. Clemons had pointed to Saunders's photograph and identified him as the perpetrator.
"The general rule is that evidence by a third party of an extrajudicial identification is admissible in rebuttal of testimony tending to impeach or discredit the identifying witness, or to rebut a charge, imputation or inference of falsity." Aaron v. State, 273 Ala. 337, 345, 139 So. 2d 309, 316 (Ala.1962). In Aaron, the Alabama Supreme Court held that a third party's testimony about the prosecutrix's pretrial identification of the defendant was properly admitted because it was presented "in rebuttal of the inference raised on cross-examination of the prosecutrix and [the third party witness] that the identification of the appellant by the prosecutrix was manufactured." Aaron, 273 Ala. at 344, 139 So.2d at 316.
Here, Officer King's testimony was not presented as rebuttal of an inference that Mrs. Clemons's identification of Saunders was manufactured; therefore, it was improper. However, we conclude that the error in admitting Officer King's testimony was harmless. See, e.g., Lewis v. State, 889 So. 2d 623, 666 (Ala.Crim.App. 2003) (harmless-error rule applies in capital cases).
In Seals v. State, 282 Ala. 586, 213 So. 2d 645 (Ala. 1968), the victim identified Seals during her testimony on direct examination, and she testified that she had identified Seals in a live lineup at the jail. Two police officers who were present at the lineup then testified that the victim had identified Seals. The Alabama Supreme Court held that the testimony of the two officers constituted harmless error:
"We are of the opinion that the testimony of a third person who heard or observed an extrajudicial identification should not be admitted except under circumstances such as were present in Aaron v. State, 273 Ala. 337, 139 So. 2d 309, or under unusual circumstances.
"However, we are of the opinion that the admission in evidence of the testimony of [the two officers] was harmless error in view of the fact that the identification of Seals by [the victim] both in court and at the line-up was undisputed. Slaughter v. State, 21 Ala.App. 211, 106 So. 891 [(1926)]."
282 Ala. at 603-04, 213 So.2d at 662.
The circumstances in this case parallel those presented in Seals. Mrs. Clemons identified Saunders in court, and she testified that she had identified Saunders in a photographic lineup. Furthermore, Saunders testified at trial and he admitted to beating Mr. Clemons with a crowbar and to beating Mrs. Clemons repeatedly after he feigned an asthma attack to gain entry into the Clemonses' house. The identity of the assailant was never an issue in this case. Based on the facts before us, we conclude that the admission of Officer King's testimony was, at most, harmless *84 error, and certainly did not rise to the level of plain error.
We note that Saunders's reliance on Thomas v. State, 461 So. 2d 16 (Ala.1984), in support of his argument is misplaced because the facts in Thomas were not at all like those presented in this case. The Alabama Supreme Court in Thomas stated:
"In this case, the prosecuting witness, Watson, made no in-court identification of the defendant, nor did he testify that he identified the defendant in the lineup. Thus, there was no evidence identifying the defendant as the thief at that stage of the trial. Then, the State produced the two police officers who testified `that Watson [the prosecuting witness] identified Thomas [the defendant] in a lineup.' This was the equivalent of allowing the officers to testify that `Watson said Thomas is the thief.' Without question, that statement was admitted for a hearsay purpose, as evidence of `the truth of the matter asserted,' i.e., that Watson's identification was the truth, and thus as substantive evidence that Thomas was the thief.
"The allowance of such evidence in this case was contrary to the rule recognized in Aaron, supra, and Seals, supra, and the general rule recognized in [C.R. McCorkle, Annot., Admissibility of evidence as to extrajudicial or pretrial identification of accused, 71 A.L.R. 2d 449, 486 (1960)]:
"`The testimony of a third person has generally been treated as inadmissible as original or substantive evidence as to the identity of the accused as the guilty party.'"
461 So.2d at 20-21. The Alabama Supreme Court then concluded that the third party's testimony about the identification required a reversal of Thomas's conviction based on those facts. However, the facts in this case are clearly distinguishable from those presented in Thomas; therefore, the holding in Thomas does not require a reversal here.
VI.
Saunders next contends that the trial court erred when it permitted Dr. Enstice to testify about the possible positions Mr. Clemons and Saunders might have been in when Saunders struck the blows with the crowbar. (Issue V in Saunders's brief.) Saunders's specific argument on this issue is set out in his brief as follows:
"The Coroner in this case went beyond observations and medical opinions and testified as to the relative positions of bodies and possible scenarios of physical interactions between the victim and his attacker. The Coroner opined that the victim was, for example, laying on a soft surface of grass during part of the attack ([R.] 630), but was on his feet during that part of the attack described at ([R.] 631). She described other aspects of the attack in a number of situations. Her testimony went beyond the bounds allowed by Alabama law.
"Alabama law on this point of law is in Mathis v. State, 73 So. 122, 124 (Ala. App.1916) which held:
"['] . . . [I]t is not permissible for a witness . . . to draw conclusions for the jury as to the relative positions of the parties at the time of the shooting from a mere examination of the wounds.[']
"This testimony was not confined to angles or depths of the wounds inflicted on the body of the victim. The coroner was not allowed by law to give this testimony."
(Saunders's brief at pp. 62-63.) Saunders did not object to this testimony at trial; *85 therefore, we review this claim for plain error.[10] See Rule 45A, Ala.R.App.P.
We have examined Dr. Enstice's testimony, and we find no violation of the rule announced in Mathis v. State, 15 Ala.App. 245, 73 So. 122 (1916). In Mathis, the appellant argued that the trial court had erred when it permitted the physician who had treated the victim to testify about the range of the shot allegedly fired by the appellant. The Court in Mathis held:
"It is not competent for a witness, expert or nonexpert, to draw inferences for the jury from the slant or angle of the wound as to the relative positions of the combatants when the fatal shot was fired. This would be invasive of the province of the jury and a matter of which they would be quite as competent to judge as the witness, having been given a description of the wound. . . . But we do not think the testimony of Dr. Flowers trenched upon the prerogative of the jury in this respect in his answer that:
"`It [the load] didn't look to be shot right straight in front; it looked to be a little bit that way (indicating).'
"This was merely an effort to describe the character of the wound and the range the load took."
15 Ala.App. at 248, 73 So. at 124.
Here, Dr. Enstice testified that she was told that Mr. Clemons was found lying in a grassy area with no rocks or concrete present; she also testified that pieces of grass were stuck to Mr. Clemons's face when his body arrived at the morgue. She then testified that one of the bruises Mr. Clemons sustained to his face "[was] inconsistent with [lying] down on a soft surface of grass and actually getting a bruise and scratch on the skin." (R. 630.) Dr. Enstice stated that a small injury beneath Mr. Clemons's nose did not appear to have been caused by lying on the soft surface, but was more consistent with a blow to the face in that region. She also testified that a larger area of bruising on the left side of Mr. Clemons's face could have been caused by blows being struck on the right side of his head while the left side of his face was on the ground. Dr. Enstice also said that the larger area of bruising could have been caused by a direct blow to that part of Mr. Clemons's face. Finally, Dr. Enstice testified that, in her opinion, the first blow to Mr. Clemons's head was struck while Mr. Clemons was in an upright position either standing or kneeling because blood spatter traveled downward toward his feet, and that the remaining blows to the head appeared to have been delivered while Mr. Clemons was on the ground because the blood from the wounds drained toward the left side of his face, which was against the grass. At no time, however, did Dr. Enstice testify about the relative positions of Saunders and Mr. Clemons when Saunders struck the blows. Her testimony was limited to a description and nature of the wounds and about the position Mr. Clemons was in when he was struck, all of which was based on the evidence she observed or information she had received about the location of Mr. Clemons's body when it was found.
In Robitaille v. State, 971 So. 2d 43 (Ala. Crim.App.2005), the appellant argued that reversible error occurred when the medical examiner testified about the position of the victim's body when the victim was *86 stabbed. This Court found no error in the medical examiner's testimony, stating:
"We have long held:
"`"In a murder prosecution it is not permissible for a witness, including a medical expert, to draw conclusions for the jury as to the relative positions of the parties at the time of the shooting from a mere examination of the wounds. It is not competent for a witness, expert or nonexpert, to draw inferences for the jury from the slant or angle of the wound as to the relative positions of the combatants when the fatal shot was fired. `This would be invasive of the province of the jury and a matter of which they would be quite as competent to judge as the witness, having been given a description of the wound.' Mathis v. State, 15 Ala.App. 245, 248, 73 So. 122, 124 (1916).
"`"However, a properly qualified expert may testify to the `path of flight' or trajectory of the bullet, Wilbanks v. State, 42 Ala.App. 39, 151 So. 2d 741, cert. denied, 275 Ala. 701, 151 So. 2d 744 (1963). He may testify to the slant or angle of the gunshot wound and describe its character. Woods v. State, 54 Ala. App. 591, 310 So. 2d 891 (1975); Mathis v. State, supra. An expert may testify about the direction from which the bullet was fired or the blow was struck, Blackmon v. State, 246 Ala. 675, 680, 22 So. 2d 29 (1945), Richardson v. State, 37 Ala. App. 194, 65 So. 2d 715 (1953), and may state the distance between the deceased and the barrel of the weapon at the time the fatal shot was fired. Straughn v. State, 270 Ala. 229, 121 So. 2d 883 (1960)."
"`Ivey v. State, 369 So.2d . . . 1276, 1280, (Ala.Cr.App.1979), writ denied, 369 So. 2d 1281 (1979) (on rehearing). See also Raspberry v. State, 615 So. 2d 657 (Ala.Crim.App.1992). In this case, the coroner did not testify concerning the relative position of the parties at the time of the murder. He only discussed the angle of the victim's wounds, testimony which is permissible. Ivey; Raspberry.'
"Lane v. State, 673 So. 2d 825, 828-29 (Ala.Crim.App.1995). [The medical examiner] did not testify concerning the positions of both the victim and the defendant at the time that [the victim] was stabbed to death; his testimony merely acknowledged possibilities concerning [the victim's] position."
Robitaille, 971 So.2d at 60-61 (emphasis added).
Therefore, we find no error, plain or otherwise, with respect to Dr. Enstice's testimony about the character and nature of Mr. Clemons's wounds and the position of Mr. Clemons's body when the injuries were inflicted upon him by Saunders.
VII.
Saunders next contends that the trial court erred when it denied his motion in limine in which he sought to prevent the prosecutor from cross-examining him about a youthful-offender adjudication he had received in South Carolina. (Issues VII and VIII in Saunders's brief.) Saunders argues that after the trial court denied his motion in limine,
"[a]s part of his trial strategy, Defense Counsel was then required to bring up the Youthful Offender adjudication when Timothy Saunders testified in his own behalf. Denying the Motion In Limine was an error, and forced Defense Counsel to take an action prejudicial to Timothy Saunders. The Youthful Offender *87 adjudication was not admissible at this trial, under Alabama law."
(Saunders's brief at p. 65.) In his reply brief, Saunders also argues that the trial court's denial of the motion in limine forced him to choose between testifying on his own behalf and having the youthful-offender adjudication introduced or not testifying and preventing the jury from hearing his side of the story.
Before Saunders began presenting the defense case, he made a motion in limine. He informed the court that he had a youthful-offender adjudication in South Carolina and pending theft charges in that state. The prosecutor stated that, if Saunders testified and attempted to create the impression that he had never been in trouble with the law before he committed this crime, then the State should be permitted to cross-examine him about the pending charges and about the facts underlying the juvenile adjudication. The trial court denied the motion in limine and stated that the scope of the prosecutor's cross-examination would be determined by Saunders's testimony on direct examination. The court instructed the prosecutor to notify the court before it sought to question Saunders about those pending charges or the facts of the youthful-offender adjudication.[11]
On direct examination, Saunders testified that he hid from the police when they came to his friend's mobile home to arrest him the morning after Mr. Clemons was murdered. He explained: "From my being in trouble in the past with the law, I'm naturally scared of cops." (R. 935.) Defense counsel then asked Saunders about his past trouble with the law, and Saunders testified that he had been charged as a youthful offender in South Carolina for stealing an automatic-teller-machine card. Saunders stated: "[I]t was me and William Watson, it was his card. It was to pay a bar tab and the bar tab went a little too high. And come to find out, the card was his grandmother's card." (R. 935.) On cross-examination, Saunders acknowledged that there had been times in his life when he had "done wrong stuff." (R. 952.) The prosecutor then asked: "But it always seems someone else contributes to it. Like you were telling us, you know, the credit card, it's just because the bar tab was too high; otherwise it was okay?" (R. 952.) Saunders replied, "It wouldn't have been okay to take the money, no." (R. 952.) The prosecutor asked no additional questions about the youthful-offender adjudication.
Initially, we note that the trial court's ruling on Saunders's motion in limine did not preserve this issue for review. "The general rule is that an adverse ruling on a motion in limine does not preserve the issue for appellate review unless an objection is made at the time the evidence is introduced." Moody v. State, 888 So. 2d 532, 582 (Ala.Crim.App.2003). "[U]nless the trial court's ruling on the motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal." Perry v. Brakefield, 534 So. 2d 602, 606 (Ala.1988). Here, the trial court's denial of Saunders's motion in limine was qualified. The trial court acknowledged that if Saunders testified that he had never been in trouble with the law before, then his testimony would open the door and the State would be permitted to ask Saunders questions about his pending charges and about the facts underlying his youthful-offender adjudication. Defense counsel stated that he was not going to put Saunders *88 on the stand to testify that he had not committed any criminal acts in his lifetime. (R. 904.) The trial court then stated:
"I'm going to deny your motion at this time. But how far the State gets to go is going to depend on what you ask your client and what your client testifies to. So I don't think I can make a ruling at this time, but I will instruct the State that if they decide to get into some of those pending charges in South Carolina or into the facts of the youthful offender conviction, . . . that's something we'll discuss when we get to that point."
(R. 905-06.) Therefore, our review of this issue is for plain error, see Rule 45A, Ala.R.App.P.
The trial court's ruling on the motion in limine was correct. Although youthful-offender adjudications are generally not admissible, a defendant can open the door in his direct testimony and render a youthful-offender adjudication admissible in cross-examination or on rebuttal. See, e.g., Williams v. State, 695 So. 2d 644 (Ala. Crim.App.1996) ("[T]he appellant `opened the door' for the admission of his prior juvenile adjudications by denying that he had ever been involved in anything similar to the offense for which he was charged."), and Thomas v. State, 445 So. 2d 992 (Ala. Crim.App.1984) (holding that although a youthful-offender adjudication may not be used to impeach credibility, when the witness opens the door by denying his criminal intent in a case, his prior youthful-offender plea of guilty to the same offense is admissible). Thus, the trial court correctly ruled that if Saunders testified that he had never been in any trouble before, then the prosecutor would be permitted to cross-examine Saunders about the prior youthful-offender adjudication.
Moreover, because Saunders admitted to the prior youthful-offender adjudication in his direct testimony, any error in allowing cross-examination about the youthful-offender adjudication was clearly invited by Saunders. "`Invited error has been applied to death penalty cases. "An invited error is waived, unless it rises to the level of plain error." Ex parte Bankhead, 585 So. 2d 112, 126 (Ala. 1991).'" Scott v. State, 937 So. 2d 1065, 1075 (Ala.Crim.App.2005), quoting Adams v. State, 955 So. 2d 1037, 1050-51 (Ala. Crim.App.2003). In Phillips v. State, 527 So. 2d 154 (Ala.1988), the Alabama Supreme Court rejected Phillips's argument that the trial court had erred when it permitted the prosecutor to cross-examine him about his prior convictions because the State did not have certified copies of the convictions; the Court stated:
"[R]espondent himself brought out the evidence of his prior convictions for theft of property on direct examination. Under the doctrine of invited error, a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby. There are numerous decisions which hold that a defendant cannot predicate error upon admission of testimony that is elicited by defense counsel and is responsive to defense questions."
527 So.2d at 156.
Finally, to the extent Saunders argues that the trial court's ruling on the motion in limine improperly forced him to choose between testifying on his own behalf and having the youthful-offender adjudication introduced or not testifying and preventing the jury from hearing his side of the story and then, once he made the decision to testify, forced defense counsel to question Saunders about the youthful-offender adjudication during direct examination, we note that Saunders did not make this argument to the trial court; therefore, we review it under the plain-error rule. See Rule 45A, Ala.R.App.P. In Ohler v. United States, *89 529 U.S. 753, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000), Ohler had been charged with importation of marijuana and possession of marijuana with intent to distribute. The district court granted the prosecution's motion in limine seeking to allow evidence of Ohler's 1993 conviction for possession of methamphetamine under Rule 609(a)(1), Fed.R.Evid. Ohler testified in her own defense, and she admitted on direct examination that she had previously been convicted of felony possession of methamphetamine. Ohler was convicted of both counts as charged, and the United States Court of Appeals for the Ninth Circuit affirmed Ohler's conviction, finding that Ohler had waived any objection to the ruling on the motion in limine by introducing the evidence of her prior conviction during her direct examination. In affirming the judgment of the circuit court of appeals, the United States Supreme Court, in a 5-4 decision, rejected Ohler's argument "that it would be unfair to apply such a waiver rule in this situation because it compels a defendant to forgo the tactical advantage of pre-emptively introducing the conviction in order to appeal the in limine ruling." 529 U.S. at 757, 120 S. Ct. 1851. The Court stated:
"[B]oth the Government and the defendant in a criminal trial must make choices as the trial progresses. For example, the defendant must decide whether or not to take the stand in her own behalf. If she has an innocent or mitigating explanation for evidence that might otherwise incriminate, acquittal may be more likely if she takes the stand. Here, for example, Ohler testified that she had no knowledge of the marijuana discovered in the van, that the van had been taken to Mexico without her permission, and that she had gone there simply to retrieve the van. But once the defendant testifies, she is subject to cross-examination, including impeachment by prior convictions, and the decision to take the stand may prove damaging instead of helpful. A defendant has a further choice to make if she decides to testify, notwithstanding a prior conviction. The defendant must choose whether to introduce the conviction on direct examination and remove the sting or to take her chances with the prosecutor's possible elicitation of the conviction on cross-examination.
"The Government, too, in a case such as this, must make a choice. If the defendant testifies, it must choose whether or not to impeach her by use of her prior conviction. Here the trial judge had indicated he would allow its use, but the Government still had to consider whether its use might be deemed reversible error on appeal. This choice is often based on the Government's appraisal of the apparent effect of the defendant's testimony. If she has offered a plausible, innocent explanation of the evidence against her, it will be inclined to use the prior conviction; if not, it may decide not to risk possible reversal on appeal from its use.
"Due to the structure of trial, the Government has one inherent advantage in these competing trial strategies. Cross-examination comes after direct examination, and therefore the Government need not make its choice until the defendant has elected whether or not to take the stand in her own behalf and after the Government has heard the defendant testify.
"Ohler's submission would deny to the Government its usual right to decide, after she testifies, whether or not to use her prior conviction against her. She seeks to short-circuit that decisional process by offering the conviction herself (and thereby removing the sting) and *90 still preserve its admission as a claim of error on appeal.
"But here Ohler runs into the position taken by the Court in a similar, but not identical, situation in Luce v. United States, 469 U.S. 38 (1984), that `[a]ny possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.' Id., at 41. Only when the Government exercises its option to elicit the testimony is an appellate court confronted with a case where, under the normal rules of trial, the defendant can claim the denial of a substantial right if in fact the district court's in limine ruling proved to be erroneous. In our view, there is nothing `unfair,' as Ohler puts it, about putting her to her choice in accordance with the normal rules of trial.
"Finally, Ohler argues that applying this rule to her situation unconstitutionally burdens her right to testify. She relies on Rock v. Arkansas, 483 U.S. 44 (1987), where we held that a prohibition of hypnotically refreshed testimony interfered with the defendant's right to testify. But here the rule in question does not prevent Ohler from taking the stand and presenting any admissible testimony which she chooses. She is of course subject to cross-examination and subject to impeachment by the use of a prior conviction. In a sense, the use of these tactics by the Government may deter a defendant from taking the stand. But, as we said in McGautha v. California, 402 U.S. 183, 215 (1971):
"`It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.. . . It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. . . . Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.'"
"For these reasons, we conclude that a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error."
529 U.S. at 757-60, 120 S. Ct. 1851 (footnotes omitted).
For all of the foregoing reasons, we find no error, plain or otherwise, in the trial court's denial of Saunders's motion in limine.
VIII.
Saunders contends that his trial counsel was ineffective. Specifically, he argues that defense counsel abandoned him when, he says, counsel asked him questions during direct examination that elicited incriminating testimony and that defense counsel abandoned him when, he says, counsel made an unreasonable decision to withdraw a request for a jury instruction on felony murder.[12] (Issues IX and X in Saunders's brief.) These arguments were *91 not raised in the trial court; therefore, we review them for plain error. See Rule 45A, Ala.R.App.P.
Initially, we note that claims of ineffective assistance of counsel are not often presented for review on direct appeal because of the inherent difficulties associated with reviewing such claims on direct appeal. The United States Supreme Court in Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003), explained:
"In light of the way our system has developed, in most cases a [postconviction proceeding] is preferable to direct appeal for deciding claims of ineffective assistance. When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial. The evidence introduced at trial, however, will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis. If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse. See Guinan [v. United States, 6 F.3d 468, 473 (7th Cir. 1993)] (Easterbrook, J., concurring) ('No matter how odd or deficient trial counsel's performance may seem, that lawyer may have had a reason for acting as he did. . . . Or it may turn out that counsel's overall performance was sufficient despite a glaring omission. . .'). . . . Without additional factual development, moreover, an appellate court may not be able to ascertain whether the alleged error was prejudicial."
538 U.S. at 504-05, 123 S. Ct. 1690. That being said, we review each of Saunders's claims based on the limited record before us.
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court held:
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."
466 U.S. at 687, 104 S. Ct. 2052. The United States Supreme Court further explained:
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's *92 defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' See Michel v. Louisiana, supra, 350 U.S. [91,] 101 [(1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983)."
466 U.S. at 689-90, 104 S. Ct. 2052.
A.
Saunders argues that during defense counsel's direct examination of him, counsel "abandoned the defense of Timothy Saunders and cast his lot with the State Prosecutor" (Saunders's brief at p. 67) and that trial counsel "bailed out and Timothy Saunders was left to fend for himself, with one exception. Defense Counsel practically begged for a guilty verdict, and instilled hatred in the minds of the jury." (Saunders's brief at p. 69.) Saunders quotes the following portions of defense counsel's direct examination in support of his argument:
"[Saunders's counsel]: Do you realize how hard you hit [Melvin Clemons]?
"[Saunders]: At the time all the
"[Saunders's counsel]: Look, look, look at this picture. Do you see that?
"[Saunders]: Yes, sir.
"[Saunders's counsel]: Do you realize how hard you hit this man?
"[Saunders]: Yes, sir. I do now.
"[Saunders's counsel]: And what has he done to you, nothing?
"[Saunders]: Nothing at all."
(R. 921-22.)
"[Saunders's counsel]: You took money from the wallet?
"[Saunders]: Yes, sir, I did.
"[Saunders's counsel]: You took money from the purse?
"[Saunders]: Yes, sir.
"[Saunders's counsel]: It wasn't yours?
"[Saunders]: No, sir, it wasn't.
"[Saunders's counsel]: Absolutely no right to be there, did you?
"[Saunders]: No, I did not.
"[Saunders's counsel]: Where did you go after after leaving the Clemons' residence?
"[Saunders]: I went back to my home where I was staying at.
"[Saunders's counsel]: You just ran back?
"[Saunders]: Yes, sir, I did."
(R. 930.)
Based on our thorough review of the record in light of the legal principles set out above, we conclude that Saunders has not established that defense counsel was ineffective. Based on the trial record alone, with no testimony from defense counsel about the reasons he took the actions to which Saunders now objects, we find that defense counsel made a reasonable, *93 tactical decision to admit to the underlying facts of the crimes, and then to argue that Saunders did not commit capital murder because he was under the influence of crack cocaine and, therefore, unable to form a specific intent.
Immediately after he was arrested, Saunders confessed to killing Mr. Clemons by hitting him on the head with the crowbar he had borrowed earlier from Mr. Clemons, and he admitted that he had feigned an asthma attack to gain entry into the Clemonses' residence, where he attacked Mrs. Clemons and took money from Mr. Clemons's wallet and from Mrs. Clemons's purse. Faced with Saunders's confession, with Mrs. Clemons's identification of Saunders at trial and her testimony at trial, and with the other testimony and evidence establishing Saunders's participation in the crimes, defense counsel reasonably attempted to urge the jury to find Saunders guilty of lesser-included charges based on Saunders's inability to form the specific intent to commit capital murder. In his opening argument to the jury, defense counsel argued that Saunders "snapped" while smoking crack cocaine, that he struck Mr. Clemons on the head (R. 376), and that "everything that happened afterwards would have been an afterthought" (R. 378). Defense counsel also argued in his opening statement that Saunders did not have the intent to murder or to rape Mrs. Clemons, although he admitted the State would present evidence of an assault. (R. 378.) Finally, defense counsel argued that, once the police apprehended Saunders, they did not investigate some of the details provided by Saunders and by Mrs. Clemons, and the police did not eliminate the possibility that Saunders did not act alone. In his closing argument, defense counsel argued that, while there was no question about who committed the acts against the Clemonses, the question for the jury was to determine Saunders's intent. According to counsel, Saunders did not have the specific intent to commit capital murder because he did not plan to commit the series of crimes and the robbery and burglary were afterthoughts that arose after Saunders "snapped" and killed Mr. Clemons. Counsel also argued that the jury could conclude that Saunders's intoxication on crack cocaine negated his specific intent to commit murder and that the jury could find Saunders guilty of manslaughter.
The portion of defense counsel's direct examination of Saunders to which Saunders now objects was entirely consistent with defense counsel's strategy to admit to certain facts, but to challenge the prosecution's theory regarding intent and to urge the jury to convict Saunders of lesser-included offenses. Before counsel asked the questions to which Saunders now objects, defense counsel had elicited testimony from Saunders regarding his use of crack cocaine and that when he was using crack cocaine, he was not "thinking right" (R. 920-21); Saunders had also testified that he was on the Clemonses' property to smoke crack cocaine and that he had intended to return the crowbar. Saunders had further testified that he did not intend to burglarize the Clemons's home or to steal from them, but that he had hit Mr. Clemons on the head with the crowbar after Mr. Clemons had said he was going to call the police.
"[W]hen counsel fails to oppose the prosecution's case at specific points or concedes certain elements of a case to focus on others, he has made a tactical decision." Hunt v. State, 940 So. 2d 1041, 1056 (Ala.Crim.App.2005), quoting Branch v. State, 882 So. 2d 36, 65 (Miss.2004). Defense counsel cannot be said to have "abandoned" his client by making such strategic choices as part of the adversarial *94 process. Id. Counsel here did not abandon Saunders; rather, he made a reasonable tactical decision to elicit from Saunders his admission that he had struck Mr. Clemons and had stolen money from Mr. Clemons's wallet and from Mrs. Clemons's purse and then ran home. This was consistent with the defense strategy a strategy that was dictated, to a large extent, by Saunders's own confession to the police that focused on Saunders being so impaired by his ingestion of crack cocaine that he could not have formed the specific intent to kill. Therefore, we do not find counsel's performance in this regard to be deficient.
Furthermore, Saunders has not shown a reasonable probability that the result of his trial would have been any different if counsel had not asked the complained-of questions. The evidence against Saunders was overwhelming, and Saunders has not shown a reasonable probability that defense counsel's questions affected either the jury's verdicts at the guilt phase or the jury's recommendation that Saunders receive the death sentence. Thus, based on our review of the record, we also find no prejudice as a result of counsel's actions in this regard.
Saunders cites Thompson v. Haley, 255 F.3d 1292, 1303 (11th Cir.2001), in support of his argument. Thompson argued that his attorneys distanced themselves from Thompson and dehumanized Thompson in the eyes of the jury. He also argued that during the closing argument at the guilt phase of the trial, counsel had informed the jury that they were court-appointed and they argued that Thompson and his codefendant had lived on the fringes of society and had engaged in activities "outside and alien to the law." 255 F.3d at 1303. In evaluating Thompson's ineffective claims, the United States Court of Appeals for the Eleventh Circuit held:
"Counsel's statements in closing, as well as Counsel's disclosure to the jury that they were court appointed, hardly comport with the fundamental duty of loyalty to a client and of ensuring `that the adversarial testing process works to produce a just result under the standards governing decision.' Strickland, 466 U.S. at 687, 104 S. Ct. 2052. Counsel could hardly hope to persuade a jury to be merciful while at the same time stressing the immoral and worthless quality of their client's life and also reminding the jury that they were appointed by the court to represent Thompson. . . . Moreover, although we recognize the need to develop and maintain credibility and rapport with the jury, it is unreasonable for trial counsel to do so at the expense of the client's best interests.
"Nonetheless, in view of the entire record, we find that Thompson has not shown a reasonable probability that Counsel's performance affected either the jury's verdict that he was guilty of capital murder or the jury's recommendation of death."
255 F.3d at 1304. Thompson supports our holding here. As noted above, we find that Saunders's trial counsel made a reasonable tactical decision based on the evidence to elicit admissions from Saunders to some of the crimes while, at the same time, demonstrating that Saunders was seriously impaired as a result of his smoking crack cocaine. Thus, as in Thompson, there is no reasonable probability that counsel's actions undermined confidence in the outcome of this case.
For the foregoing reasons, we find no plain error with regard to this issue.
B.
Saunders also argues that defense counsel abandoned him when he withdrew *95 his request for a jury instruction on felony murder. Saunders appears to argue that, because counsel withdrew the request for the felony-murder instruction, the jury was left with only two choices as to the murder of Mr. Clemons: to find Saunders guilty of capital murder or to find him not guilty.
The parties submitted written requested jury instructions to the court. The record reflects that the trial court held an off-the-record conference to consider the parties' requested jury charges, and the court ruled on the requested charges. Thereafter, defense counsel objected on the record to the court's decision not to charge the jury on felony murder. The prosecutor argued that Saunders's defense throughout the trial had been that Saunders had no intent to commit robbery, burglary, or any other felony, so an instruction on felony murder was not supported by the evidence. Defense counsel then withdrew his objection to the trial court's ruling on the felony murder instruction. (R. 989.)
First, Saunders's argument that trial counsel's abandonment of a felony-murder defense left the jury with only the option to find Saunders guilty of capital murder or not guilty of any crime is incorrect. The trial court instructed the jury on the lesser-included offenses of manslaughter and murder. Therefore, when defense counsel withdrew his objection to the court's decision not to instruct the jury on felony murder, he did not force the jury to find Saunders guilty of capital murder or not guilty of capital murder.
Second, a jury instruction on felony murder was not consistent with the defense theory of the case, and it was not unreasonable for counsel to withdraw his objection to the court's refusal to instruct the jury on felony murder. Felony murder requires an intent to commit the underlying felony. See, e.g., Heard v. State, 999 So. 2d 992 (Ala.2007). However, Saunders testified repeatedly that he did not intend to burglarize the Clemonses' house or to steal anything from the Clemonses. Thus, the defense theory of the case was inconsistent with a jury instruction on felony murder, and when defense counsel withdrew his objection to the court's denial of the request for a jury instruction on felony murder, defense counsel was making a reasonable, strategic decision based on the defense theory. Because defense counsel's decision was not unreasonable, Saunders has failed to demonstrate that counsel's performance was deficient.
Because Saunders failed to establish that defense counsel's performance was deficient, no plain error exists as to this issue.
IX.
Saunders contends that the trial court erred in denying his motions for a judgment of acquittal, made at the close of the State's case and at the close of all the evidence, because, he says, the evidence presented at trial was insufficient to support his convictions. (Issue XI in Saunders's brief.) Specifically, Saunders argues that the evidence failed to establish "that he ever intended to take the life of Melvin Clemons, to commit any murder or burglary, or to do any other criminal act." (Saunders's initial brief at p. 70, Saunders's reply brief at p. 35.) Saunders also argues that he was under the influence of crack cocaine and "that made it impossible for him to intend to do anything other than seek more drugs." (Saunders's reply brief at p. 36.)
"Initially, we note our well-established standard for reviewing challenges to the sufficiency of the evidence: `"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced *96 by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution."' Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim.App.1998), quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala.Crim.App. 1984), aff'd, 471 So. 2d 493 (Ala.1985). `"The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."' Nunn v. State, 697 So. 2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim.App.1992). `"When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision."' Farrior v. State, 728 So. 2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim.App.1990). `The role of appellate courts is not to say what the facts are. Our role . . . is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala.1978)."
Oliver v. City of Opelika, 950 So. 2d 1229, 1230 (Ala.Crim.App.2006).
Saunders was convicted of the murder of Mr. Clemons during the course of the robbery and during the course of a burglary, and of the attempted murder of Mrs. Clemons.
"`To sustain a conviction under § 13A-5-40(a)(2) for capital robbery-murder, the state must prove beyond a reasonable doubt: (1) a "robbery in the first degree or an attempt thereof," as defined by § 13A-8-41; (2) a "murder," as defined by § 13A-6-2(a)(1); and (3) that the murder was committed "during" the robbery or attempted robbery, i.e., that the murder was committed "in the course of or in connection with the commission of, or in immediate flight from the commission of" the robbery or attempted robbery in the first degree, § 13A-5-39(2). Connolly v. State, 500 So. 2d 57 (Ala.Cr.App.1985), aff'd, 500 So. 2d 68 (Ala.1986). The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional killing. Davis v. State, 536 So. 2d 110 (Ala.Cr. App.1987); Magwood v. State, 494 So. 2d 124 (Ala.Cr.App.1985), aff'd, Ex parte Magwood, 494 So. 2d 154 (Ala.), cert. denied, 479 U.S. 995 (1986). The intentional murder must occur during the course of the robbery in question; however, the taking of the property of the victim need not occur prior to the killing. Clark v. State, 451 So. 2d 368 (Ala.Cr.App.), cert. denied, 451 So. 2d 368 (Ala.1984). While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. Thomas v. State, 460 So. 2d 207 (Ala.Cr.App.1983), aff'd, 460 So. 2d 216 (Ala.1984).
"`"As the Alabama Supreme Court held in Cobern v. State, 273 Ala. 547, 142 So. 2d 869 (1962), `the fact that the victim was dead at the time the property was taken would not militate [against a finding] of robbery if the intervening time between the murder and the taking formed a continuous chain of events.' Clements v. State, 370 *97 So.2d 708, 713 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So. 2d 723 (Ala.1979); Clark v. State, 451 So. 2d 368, 372 (Ala.Cr.App. 1984). To sustain any other position `would be tantamount to granting to would-be robbers a license to kill their victims prior to robbing them in the hope of avoiding prosecution under the capital felony statute.' Thomas v. State, 460 So. 2d 207, 212 (Ala.Cr.App.1983), affirmed, 460 So. 2d 216 (Ala.1984).
"`"Although a robbery committed as a `mere afterthought' and unrelated to the murder will not sustain a conviction under § 13A-5-40(a)(2) for the capital offense of murder-robbery, see Bufford v. State, [382 So. 2d 1162 (Ala.Cr.App. 1980)], O'Pry v. State, [642 S.W.2d 748 (Tex.Cr.App.1981)], the question of a defendant's intent at the time of the commission of the crime is usually an issue for the jury to resolve. Crowe v. State, 435 So. 2d 1371, 1379 (Ala.Cr.App.1983). The jury may infer from the facts and circumstances that the robbery began when the accused attacked the victim and the capital offense was consummated when the defendant took the victim's property and fled. Cobern v. State, 273 Ala. 547, 550, 142 So. 2d 869, 871 (1962). The defendant's intent to rob the victim can be inferred where `[t]he intervening time, if any, between the killing and robbery was part of a continuous chain of events.' Thomas v. State, 460 So. 2d 207, 212 (Ala. Cr.App.1983), affirmed, 460 So. 2d 216 (Ala.1984). . . ."
"`Connolly [v. State, 500 So. 2d 57, 63 (Ala.Crim.App.1985), aff'd, 500 So. 2d 68 (Ala.1986)].'
"Hallford v. State, 548 So. 2d 526, 534-35 (Ala.Crim.App.1988), aff'd, 548 So. 2d 547 (Ala.1989)."
Jones v. State, 946 So. 2d 903, 925-26 (Ala. Crim.App.2006).
To sustain a conviction under § 13A-5-40(a)(4), Ala.Code 1975, the prosecution was required to prove beyond a reasonable doubt: (1) a burglary in the first or second degree or an attempt thereof; (2) a murder; and (3) that the murder was committed during the burglary or attempted burglary.
"(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in [the] dwelling or in immediate flight therefrom, he or another participant in the crime:
"(1) Is armed with explosives or a deadly weapon; or
"(2) Causes physical injury to any person who is not a participant in the crime; or
"(3) Uses or threatens the immediate use of a dangerous instrument."
§ 13A-7-5, Ala.Code 1975.
"(a) A person commits the crime of burglary in the second degree if he knowingly enters or remains unlawfully in a building with intent to commit theft or a felony therein and, if in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
"(1) Is armed with explosives or a deadly weapon; or
"(2) Causes physical injury to any person who is not a participant in the crime; or
"(3) Uses or threatens the immediate use of a dangerous instrument.
*98 "(b) In the alternative to subsection (a) of this section, a person commits the crime of burglary in the second degree if he unlawfully enters a lawfully occupied dwelling-house with intent to commit a theft or a felony therein."
§ 13A-7-6, Ala.Code 1975.
Finally, "`[t]he elements of the crime of attempted murder are intent to kill and an overt act towards commission of that act.'" Perkins v. State, 897 So. 2d 457, 465 (Ala.Crim.App.2004), quoting Bradford v. State, 734 So. 2d 364, 369 (Ala. Crim.App.1999), citing in turn, Chaney v. State, 417 So. 2d 625 (Ala.Crim.App.1982). See also §§ 13A-6-2(a)(1) and 13A-4-2, Ala.Code 1975.
Reviewing the evidence in the light most favorable to the State and according the State all reasonable inferences therefrom, we find that the State presented sufficient evidence to submit the case to the jury and that the trial court did not err when it denied Saunders's motions for a judgment of acquittal. The evidence presented during the State's case, as set forth more fully at the beginning of this opinion, established that, on the day before Saunders was to move away from the area, and after he had been watching the Clemonses for more than two months, he made up an elaborate excuse to borrow a crowbar from Mr. Clemons. Saunders told Sgt. Fuqua that he had borrowed the crowbar as a ploy to get onto the Clemonses' property. After keeping the crowbar until past sundown, Saunders was on the Clemonses' property when Mr. Clemons went to retrieve his crowbar. The evidence indicates that Saunders strangled the elderly man, repeatedly struck him in the face, and finally, while Mr. Clemons was standing or kneeling, Saunders struck Mr. Clemons on the head with his own crowbar. After Mr. Clemons fell to the ground, Saunders struck additional blows to Mr. Clemons's head, killing him. The pocket of Mr. Clemons's pants was turned inside out, and blood was found on that pocket, raising the inference that Saunders attempted to rob Mr. Clemons of any money he might have had in his pocket.
Saunders next went to the Clemonses' house, and he feigned an asthma attack so that he could get inside. Mrs. Clemons was concerned about Saunders's health, and she unlocked the door and allowed him to come inside. While he was inside the house, Saunders told Mrs. Clemons that he wanted money for crack cocaine and he stole money from Mr. Clemons's wallet and from Mrs. Clemons's purse, and he took keys to one of the Clemonses' vehicles. Saunders also dragged Mrs. Clemons around the house by the neck and he struck her repeatedly, causing her to fall to the ground and hit her head several times and causing her to fear for her life. While he was inside the house with Mrs. Clemons, Saunders picked up a knife, a screwdriver, and an extension cord, and he approached Mrs. Clemons with each item; he dropped each of the items only after Mrs. Clemons directed him to do so. Testimony from Dr. Baggett established the severity of Mrs. Clemons's wounds, including severe injuries to her lungs that caused her to suffer heart failure and to require treatment in the intensive care unit of a hospital.
Saunders admitted that he had borrowed the crowbar from Mr. Clemons the day before he and his family were moving away from the area so that he would have a reason to be around the Clemonses' property. He admitted that he struck Mr. Clemons on the head with the crowbar, that he feigned an asthma attack so that Mrs. Clemons would let him into the house, and that he must have gone into the house to get money for more crack cocaine. Saunders also admitted that he *99 struck Mrs. Clemons repeatedly and that she complained of chest pains and asked him to telephone emergency 911, but that he did not do so. Finally, Saunders admitted that after he left the Clemonses' house, he returned to his own residence, told his brother that he had "screwed up," and he fled the area.
The evidence presented by the State established all the elements of robbery-murder, burglary-murder, and attempted murder. Therefore, the trial court did not err when it denied Saunders's motions for a judgment of acquittal at the close of the State's case and at the close of all the evidence.
Moreover, although Mrs. Clemons testified that Saunders smoked crack cocaine in her house, and Saunders testified that he was "high" on crack cocaine at the time of the crimes, evidence of Saunders's intoxication did not render the evidence insufficient, it merely created a question for the jury regarding Saunders's intent.
"`"[I]ntent, . . . being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence."' Seaton v. State, 645 So. 2d 341, 343 (Ala. Crim.App.1994), quoting McCord v. State, 501 So. 2d 520, 528-29 (Ala.Crim. App.1986). Intent `"`may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.'"' Farrior v. State, 728 So. 2d 691, 695 (Ala.Crim.App. 1998), quoting Jones v. State, 591 So. 2d 569, 574 (Ala.Crim.App.1991) quoting in turn, Johnson v. State, 390 So. 2d 1160, 1167 (Ala.Crim.App.1980). `"The intent of a defendant at the time of the offense is a jury question."' C.G. v. State, 841 So. 2d 281, 291 (Ala.Crim.App.2001), aff'd, 841 So. 2d 292 (Ala.2002), quoting Downing v. State, 620 So. 2d 983, 985 (Ala.Crim.App.1993)."
Buford v. State, 891 So. 2d 423, 429 (Ala. Crim.App.2004). The Alabama Supreme Court discussed the degree of intoxication necessary to negate criminal intent in Ex parte Bankhead, 585 So. 2d 112 (Ala.1991), on remand to, 585 So. 2d 133 (Ala.Crim. App.1991), aff'd on return to remand, 625 So. 2d 1141 (Ala.Crim.App.1992), rev'd on other grounds, 625 So. 2d 1146 (Ala.1993). The Alabama Supreme Court stated:
"In an assault and battery case, voluntary intoxication is no defense, unless the degree of intoxication amounts to insanity and renders the accused incapable of forming an intent to injure. Lister v. State, 437 So. 2d 622 (Ala.Cr.App. 1983). The same standard is applicable in homicide cases. Crosslin [v. State, 446 So. 2d 675 (Ala.Cr.App.1983), appeal after remand, 489 So. 2d 680 (Ala.Cr. App.1986)]. Although intoxication in itself does not constitute a mental disease or defect within the meaning of § 13A-3-1, Code of Alabama 1975, intoxication does include a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. § 13A-3-2. The degree of intoxication required to establish that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill. A jury is capable of determining whether a defendant's intoxication rendered it impossible for the defendant to form a particular mental state."
585 So.2d at 121.
Here, although the evidence established that Saunders ingested crack cocaine before and during the crimes, the evidence also established that Saunders acted with forethought and planning. *100 There was evidence from which the jury could have concluded that Saunders planned the attack on the Clemonses earlier in the day, when he created a reason to be on the property by borrowing a crowbar; that he intended to rob and kill Mr. and Mrs. Clemons in their home late in the evening, before he and his family moved away from the area; that by lying to Mrs. Clemons about her husband being handcuffed inside a vehicle and faking an asthma attack to gain entry into the home, Saunders had the ability to think and plan his continuing crime spree; that by forcing Mrs. Clemons to pick items up and by using Windex brand glass cleaner to remove fingerprints from items he touched, Saunders appreciated the criminality of his conduct and was attempting to eliminate evidence of his wrongdoing; and that by fleeing from the scene and admitting to others that he had "screwed up," Saunders was not so intoxicated that he was unable to form the intent to kill. In addition, Saunders testified that the effects of crack cocaine lifted in a short amount of time, sometimes between 10 and 30 minutes, and that his mind was "almost clear" before he left the Clemonses' house. (R. 954.) Whether Saunders was so intoxicated from the crack cocaine he smoked that he could not form the specific intent to commit the crimes for which he was convicted was a question for the jury. The jury obviously resolved that question adversely to Saunders, and we will not disturb that finding on appeal.
For the foregoing reasons, the trial court did not err when it denied Saunders's motions for a judgment of acquittal.
X.
Saunders contends that when the prosecutor gave her rebuttal closing argument she made an improper statement of the law regarding voluntary intoxication. (Issue XII in Saunders's brief.) Specifically, Saunders contends that the trial court told the attorneys that it would not instruct the jury that voluntary intoxication had to rise to the level of insanity to negate specific intent, and that the prosecutor improperly told the jury that voluntary intoxication had to rise to the level of insanity before it could negate intent.
During the prosecutor's rebuttal closing argument, the following occurred:
"[Prosecutor]: But the Judge is going to tell you that voluntary intoxication is not a defense and that you essentially are going to have to determine that his intoxication was such that it rose to the level of insanity and he could not form intentional
"[Saunders's counsel]: Judge, may we approach?
"At the bench:
"[Saunders's counsel]: The State had requested a jury charge which you had denied which talks about rising to the form [sic] of insanity. It's improper argument as to what you're going to instruct. You're not giving that jury charge, you've already denied that.
"[Prosecutor]: I thought it was part of his charge.
"The Court: Overrule the objection.
"(Bench conference concluded.)"
(R. 1040-41.)
"`This court has stated that "[i]n reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract." Bankhead v. State, 585 So. 2d 97, 106 (Ala.Crim. App.1989), remanded on other grounds, 585 So. 2d 112 (Ala.1991), *101 aff'd on return to remand, 625 So. 2d 1141 (Ala.Crim.App.1992), rev'd on other grounds, 625 So. 2d 1146 (Ala. 1993). See also Henderson v. State, 583 So. 2d 276, 304 (Ala.Crim.App. 1990), aff'd, 583 So. 2d 305 (Ala.1991), cert. denied, 503 U.S. 908 (1992). "In judging a prosecutor's closing argument, the standard is whether the argument `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Bankhead, 585 So.2d at 107, quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). "A prosecutor's statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury." Roberts v. State, 735 So. 2d 1244, 1253 (Ala.Crim.App.1997), aff'd, 735 So. 2d 1270 (Ala.), cert. denied, 5[2]8 U.S. 939 (1999). Moreover, "statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict." Bankhead, 585 So.2d at 106. "Questions of the propriety of argument of counsel are largely within the trial court's discretion, McCullough v. State, 357 So. 2d 397, 399 (Ala.Crim.App.1978), and that court is given broad discretion in determining what is permissible argument." Bankhead, 585 So.2d at 105. We will not reverse the judgment of the trial court unless there has been an abuse of that discretion. Id.'
"Ferguson v. State, 814 So. 2d 925, 945-46 (Ala.Crim.App.2000), aff'd, 814 So. 2d 970 (Ala.2001)."
Brooks v. State, 973 So. 2d 380, 396 (Ala. Crim.App.2007).
Initially, we note that the charge conference is not included in the record. Although defense counsel asserted in his objection that the trial court had denied the State's request for a jury instruction stating that voluntary intoxication had to rise to the level of insanity in order to negate intent, in response the prosecutor stated that she thought the statement regarding intoxication rising to the level of insanity would be part of the trial court's charge. Because the charge conference is not in the record, however, this Court has no way of ascertaining which party's recollection is correct.[13]
That being said, our review of the record reveals that when the trial court instructed the jury on voluntary intoxication it did not include the requirement that intoxication reach the level of insanity in order to negate intent (R. 1065), although that statement of law would have been correct. See Ex parte Bankhead, 585 So. 2d 112, 121 (Ala.1991), on remand to, 585 So. 2d 133 (Ala.Crim. App.1991), aff'd on return to remand, 625 So. 2d 1141 (Ala.Crim.App.1992), rev'd on other grounds, 625 So. 2d 1146 (Ala.1993). Furthermore, the trial court informed the jurors at the beginning of the trial that it *102 would instruct them as to the law it was to apply to the facts of the case, and it is well settled that a jury is presumed to follow the trial court's instructions. See, e.g., Taylor v. State, 808 So. 2d 1148, 1187 (Ala. Crim.App.2000). Thus, although the prosecutor's statement to the jury that the court would instruct it that intoxication had to rise to the level of insanity in order to negate intent when, in fact, the court did not give that instruction, was technically not a correct statement based on the facts in this case, the fact that intoxication must rise to the level of insanity in order to negate intent is a correct statement of the law. Therefore, we conclude that the prosecutor's statement, which was a correct statement of the law, was not error, and the trial court properly overruled Saunders's objection.
XI.
Saunders contends that the trial court erred when, between the guilt phase and the penalty phase of the trial, the court replaced a missing member of the jury with an alternate juror, who was not "privy to all of the deliberations involved in the guilt phase of the trial," without attempting to locate the missing juror and to force his attendance. (Issue VIII in Saunders's brief at p. 73.)
The record reflects that the jury completed its deliberations and rendered verdicts in the guilt phase of Saunders's trial during the evening of Friday, August 26, 2005. Before the trial court recessed the proceedings, it discussed with counsel and with the jurors the possibility that a hurricane that was then in the Gulf of Mexico would make landfall in Baldwin County, and the court instructed the jurors to leave their telephone numbers so that the court could contact them if the penalty phase of Saunders's trial could not be held as scheduled on Monday, August 29, 2005, and had to be rescheduled as a result of the hurricane. When court resumed on Wednesday, August 31, 2005, the trial court stated:
"THE COURT: For the record, Monday the 29th, Hurricane Katrina hit the Mississippi Gulf Coast and affected Mobile County and large parts of Baldwin County. The power was out in several areas of Baldwin County and is still out in several areas of Baldwin County.
"Juror No. 41, [M.T.M.], is a I believe, a lineman for Riviera Utilities. Whether he's a lineman or not, he works for Riviera Utilities which is a utility company. I believe it's owned by the City of Foley, and is responsible for electricity and gas, and I'm not sure about water and cable, both in the Foley area and on the what's called the Eastern Shore of Baldwin County, but the Fairhope, Daphne area. Fairhope and Daphne area was one of the areas that was hit hard by the storm surge and hurricane force winds in that area.
"[M.T.M.] has not appeared this morning. We had received a message that he was helping restore power to some of the areas that were without power and may not be able to make it today.
"It's approximately 12 minutes after 9:00, so I do not believe [M.T.M.] is going to be here. We had received a call yesterday on the 30th, at least my secretary had received a call yesterday on the 30th that indicated it wasn't [M.T.M.], but I think it might have been his mother, indicating that he may not be here today.
"So, what I had planned on doing is replacing [M.T.M.] with one of the two alternates. Everybody is back this morning except the two except [M.T.M.]. The two alternates did not deliberate on the finding of guilt. However, *103 the two alternates were sequestered in [the] foyer of my office during the jury's deliberation on guilt. They did not participate in that, but they were kept separate and were instructed to not discuss the case at that time, and as far as we know, did not discuss that case.
"So at this time, I will it's the Court's opinion that I will unless somebody has a better idea, to replace [M.T.M.] with Juror No. 47, which is [R.E.R.], who is the first alternate and proceed with the sentencing."
(R. 1104-05.) Saunders objected to the placement of juror R.E.R. on the jury, arguing that R.E.R. had not been "privy to the deliberations for the jury," and that it would be improper to proceed with the alternate juror. (R. 1106.) The trial court overruled Saunders's objection.
Section 12-16-100, Ala.Code 1975, sets out the general procedure for drawing, selecting, and empaneling juries in criminal cases. Section 12-16-100(c) provides, in relevant part, that "[t]he last juror or jurors struck shall be the alternate or alternates, and if it becomes necessary for an alternate to replace a principal juror, the last juror struck shall be designated." In Rocker v. State, 443 So. 2d 1316 (Ala. Crim.App.1983), we reviewed the trial court's decision to replace a principal juror with an alternate juror. On the second day of trial, the court received notice that a juror's husband had communicated with the juror and had told her to tell the trial judge that he knew the people involved in the case. The court held a hearing and took the matter under advisement. The following day, immediately before the case was submitted to the jury, the trial court replaced the principal juror with an alternate juror, and Rocker objected. This Court held that the trial court had acted in accordance with § 12-16-100(c), and stated:
"The use of alternate jurors under this salutary statute permits the court to avoid a costly and burdensome mistrial that would otherwise be required when a juror during the trial becomes unable to perform his duties satisfactorily. We find that the trial judge made such use of this statute.
"Whether it is necessary for an alternate juror to replace a principal juror under § 12-6-100(c), as amended, Code of Alabama 1975, is a decision within the sound discretion of the trial judge, subject only to review for an abuse of discretion. Winstead v. State, 53 Ala.App. 222, 298 So. 2d 642, cert. denied, 292 Ala. 761, 298 So. 2d 646 (1974); Gaffney v. State, 342 So. 2d 403 (Ala.Cr.App.1976), cert. denied, 342 So. 2d 404 (Ala.1977); Cox v. State, 394 So. 2d 103 (Ala.Cr.App. 1981)."
443 So.2d at 1320.
Similarly, in Thomas v. State, 615 So. 2d 141 (Ala.Crim.App.1992), the trial court replaced a principal juror with an alternate juror when, on the second day of trial, the principal juror told the trial court that she knew the defendant's parents. We held that the trial court had acted in accordance with § 12-16-100(c) when it replaced the principal juror with the alternate juror, and stated:
"`As for the judge's decision that the circumstances are such that a juror must be excused and replaced by an alternate or additional juror, the judge has considerable discretion here as well. Despite the fact that there are circumstances in which the defendant has a "right to have his trial completed by a particular tribunal," the judge's action in excusing a juror will be upheld "if the record shows some legitimate basis for his decision." This is because the defendant has still been tried by 12 persons selected by *104 him, with even those originally designated as alternates being selected in the same fashion as the other jurors.'
"3 W. LaFave & J. Israel, Criminal Procedure § 21.3(e), p. 742 (1984) (footnotes omitted)."
615 So.2d at 143. See also Limbaugh v. State, 581 So. 2d 5 (Ala.Crim.App.1991) (trial court did not abuse its discretion in replacing with an alternate a principal juror who, through an administrative error, was seated on the jury), and Calhoun v. State, 530 So. 2d 259 (Ala.Crim.App.1988) (trial court did not abuse its discretion in replacing with an alternate a principal juror who did not return to court after a recess).
Under the circumstances of this case, we find that the trial court did not abuse its discretion when it placed the alternate juror on the jury. The trial court had received a message that the principal juror might not be able to attend the trial because he was a lineman and might be working to restore power to areas that were damaged by the hurricane that hit the Gulf coast the morning the penalty phase of Saunders's trial was scheduled to begin. Although the circumstances presented here were not the same as those in the cases cited above, a trial court certainly has discretion under § 12-16-100(c) to replace a juror who is attempting to aid people in the aftermath of a natural disaster.
Therefore, we find no abuse of discretion on the part of the trial court in replacing juror M.T.M. with alternate juror R.E.R., even without first attempting to contact him and force him to return for jury duty.
XII.
Saunders contends that the trial court erred when it refused his request at the beginning of the penalty phase of the trial that it instruct the jury that its sentencing verdict would be final and when the court instructed the jury at the conclusion of the evidence at the penalty phase of the trial that its sentencing verdict was only a recommendation. (Issue XIV in Saunders's brief.) He also argues that the trial court erred when it refused his request at the beginning of the penalty phase of the trial that it instruct the jury that its sentencing verdict did not have to be unanimous.
At the beginning of the penalty phase of the trial, the trial court gave the jury introductory instructions about how that phase of the trial would proceed but did not give any instructions regarding the law. Before opening statements were made, defense counsel made the following objection:
"I don't think you stated anything on the record this was an advisory opinion, but when you give the instructions to the jury on this, you didn't tell them that this would that this had to be a unanimous decision, which it does not have to be. I think you ought to tell them your decision doesn't have to be unanimous and that their decision is final. I think it would be appropriate to give some type of instructions to the jury at this time."
(R. 1114.) The trial court overruled Saunders's objection and stated that it would instruct the jury regarding the law at the conclusion of the evidence.
During its final charge to the jury at the penalty phase, the trial court instructed the jury that its verdict did not have to unanimous. The court instructed the jury that in order to recommend a sentence of death, at least 10 jurors had to vote for death, and that in order to recommend a sentence of life imprisonment without the possibility of parole, at least 7 jurors had to vote for that sentence. (R. 1330-31.) In addition, throughout its oral charge, the *105 trial court referred to the jury's sentencing verdict as a recommendation. After the trial court completed its charge, Saunders objected to the court's use of the term "recommend," and argued that the jury was not supposed to know that its verdict was only a recommendation. (R. 1334-35.) Saunders then asked the court to instruct the jury that its verdict as to the sentence would be final. The trial court denied the motion.
A jury's verdict at the penalty phase of a capital trial is advisory only. See § 13A-5-46 and § 13A-5-47, Ala.Code 1975. In Alabama, it is the trial judge, not the jury, who is the final sentencing authority. As this Court explained in addressing a similar issue in Robitaille v. State, 971 So. 2d 43 (Ala.Crim.App.2005):
"Robitaille argues that the circuit court's jury instruction were erroneous because they informed the jury that its verdict in the penalty phase was merely advisory.
"`A trial court has broad discretion when formulating its jury instructions. See Williams v. State, 611 So. 2d 1119, 1123 (Ala.Cr.App.1992). When reviewing a trial court's instructions, "`the court's charge must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together."' Self v. State, 620 So. 2d 110, 113 (Ala.Cr.App.1992) (quoting Porter v. State, 520 So. 2d 235, 237 (Ala.Cr.App.1987)); see also Beard v. State, 612 So. 2d 1335 (Ala. Cr.App.1992); Alexander v. State, 601 So. 2d 1130 (Ala.Cr.App.1992).'
"Williams v. State, 795 So. 2d 753, 780 (Ala.Crim.App.1999). We have upheld similar instructions given in the penalty phase of a capital trial. In Taylor v. State, 666 So. 2d 36, 50-51 (Ala.Crim. App.1994), aff'd, 666 So. 2d 73 (Ala.1995), we stated:
"`"[W]e reaffirm the principle that, in Alabama, the `judge, and not the jury, is the final sentencing authority in criminal proceedings.' Ex parte Hays, 518 So. 2d 768, 774 (Ala.1986); Beck v. State, 396 So.2d [645] at 659 [(Ala.1980)]; Jacobs v. State, 361 So. 2d 640, 644 (Ala.1978), cert. denied, 439 U.S. 1122, 99 S. Ct. 1034, 59 L. Ed. 2d 83 (1979)." Ex parte Giles, 632 So. 2d 577, 583 (Ala.1993), cert. denied, [512] U.S. [1213], 114 S. Ct. 2694, 129 L. Ed. 2d 825 (1994). "The jury's verdict whether to sentence a defendant to death or to life without parole is advisory only." Bush v. State, 431 So. 2d 555, 559 (Ala.Crim. App.1982), aff'd, 431 So. 2d 563 (Ala. 1983), cert. denied, 464 U.S. 865, 104 S. Ct. 200, 78 L. Ed. 2d 175 (1983). See also Sockwell v. State, [675] So.2d [4] (Ala.Cr.App.1993). "We have previously held that the trial court does not diminish the jury's role or commit error when it states during the jury charge in the penalty phase of a death case that the jury's verdict is a recommendation or an `advisory verdict.' White v. State, 587 So. 2d 1218 (Ala.Cr. App.1990), aff'd, 587 So. 2d 1236 (Ala. 1991), cert. denied, 502 U.S. 1076, 112 S. Ct. 979, 117 L. Ed. 2d 142 (1992)." Burton v. State, 651 So. 2d 641 (Ala. Cr.App.1993).'
"(Footnote omitted.)"
971 So.2d at 74. Therefore, the trial court did not err when it referred during its oral charge to the jury's sentencing verdict as a recommendation.
In addition, there is no requirement that the trial court instruct the jury at the beginning of the penalty phase of a capital trial that its sentencing verdict does not have to be unanimous. Although *106 Rule 21.1, Ala.R.Crim.P., provides, in pertinent part, that "in the sentencing phase of the trial of a capital case, the court, may, in its discretion, instruct the jury at the beginning of the proceeding," this rule is entirely discretionary with the trial court. Indeed, § 13A-5-46(d), Ala.Code 1975, specifically allows for instructions to be given at the conclusion of the evidence; it provides that "[a]fter hearing the evidence and the arguments of both parties at the sentence hearing, the jury shall be instructed on its function and on the relevant law by the trial judge." Therefore, we find no error on the part of the trial court in denying Saunders's request that it instruct the jury at the beginning of the penalty phase of the trial that its sentencing verdict did not have to be unanimous.
XIII.
Saunders contends that the trial court erred in instructing the jury on the aggravating circumstance that the murder of Mr. Clemons was especially heinous, atrocious, or cruel when compared to other capital offenses and that the trial court erred when it found that aggravating circumstance to exist. (Issue VI in Saunders's brief.) Specifically, Saunders argues that the testimony at trial was undisputed that "[d]eath, in this case, was swift, by surprise, from behind, and without warning" (Saunders's brief at p. 63); therefore, Saunders concludes, the murder was not heinous, atrocious, or cruel. Saunders did not present these arguments to the trial court; therefore, we review them under the plain-error rule. See Rule 45A, Ala.R.App.P.
In its sentencing order, the trial court made the following findings of fact regarding the aggravating circumstance that the offense was especially heinous, atrocious, or cruel:
"Evidence presented by and testimony from Dr. Enstice established that Melvin Clemons was struck repeatedly in the face by something other than the crowbar that was used to cave in the back and side of his head. Testimony and evidence from Dr. Enstice also showed Melvin Clemons was choked with such force that hemorrhaging occurred prior to his death, deep within his neck and throat area. Evidence also established that Melvin Clemons was standing or kneeling in an upright position when he was first struck with the crowbar, which was then followed by several more blows to the head of Melvin Clemons with the crowbar by the Defendant.
"The blows to Melvin Clemons' face and the injuries to the neck were inflicted prior to death and if the first blow with the crowbar was to a standing or kneeling victim, as supported by the evidence, the victim could not have been unconscious. Therefore, the killing of Melvin Clemons was not immediate. The killing took place at night in the darkness of Melvin Clemons' yard and with the knowledge of 77-year-old Melvin Clemons that his wife of 40 years, Agnes Clemons, was alone in their house and was now or soon to be the target of the Defendant, since he, Melvin Clemons, had no money on himself. It must also be assumed that Melvin Clemons knew he was going to die after the facial blows and neck/throat injury, since he knew his assailant and would be able to identify him as being the individual who borrowed the crowbar from him earlier in the day.
"The evidence showed that Melvin Clemons was returning to his house when the fatal blows were delivered, which indicates he was returning to call the police or he was returning to protect his wife; either of these scenarios show *107 the victim knew something was seriously wrong that night in the yard of his home."
(C.Supp. 32.)
"The aggravating circumstance that the offense was especially heinous, atrocious, or cruel `was intended to apply to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.' Ex parte Kyzer, 399 So. 2d 330, 334 (Ala.1981). In Ex parte Clark, 728 So. 2d 1126 (Ala.1998), the Alabama Supreme Court explained:
"`In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the Supreme Court of the United States held that the application of certain state death penalty statutes violated the Eighth Amendment to the United States Constitution as applied to the states through the Due Process Clause of the Fourteenth Amendment. The Supreme Court held that those statutes' lack of principled standards to prevent the sentencing authority from arbitrarily and capriciously imposing capital punishment rendered the application of the sentencing scheme constitutionally infirm. E.g., id. at 310, 92 S. Ct. 2726 (Stewart, J., concurring); id. at 311, 92 S. Ct. 2726 (White, J., concurring).
"`Since Furman, many states have revised their death penalty statutes to require that the sentencing authority consider aggravating and mitigating circumstances, thus limiting the discretion of the sentencing authority. See Maynard v. Cartwright, 486 U.S. 356, 362, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). The Supreme Court's post-Furman cases make it clear that to survive Eighth Amendment scrutiny, a factor used as an aggravating circumstance in a capital punishment statute must provide a "principled way to distinguish" cases in which the death penalty is appropriate from cases in which it is not. See, e.g., Godfrey v. Georgia, 446 U.S. 420, 433, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). The Supreme Court has held that the "especially heinous, atrocious, or cruel" aggravating circumstance provides such a principled distinction only where the state appellate courts employ a consistent and narrow interpretation of that circumstance to channel the discretion of the sentencer. See Cartwright, 486 U.S. at 365-66, 108 S. Ct. 1853 (upholding the Oklahoma Court of Criminal Appeals' interpretation of the "especially heinous, atrocious, or cruel" aggravating circumstance to require, before a death sentence is imposed, a finding that the victim was tortured or was caused to suffer serious physical abuse).
"`In Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989), the United States Court of Appeals for the Eleventh Circuit upheld this Court's application of the "especially heinous, atrocious or cruel" aggravating circumstance because this Court's application of it provided a "principled way to distinguish" cases in which the death penalty is appropriately imposed from cases in which it is not. Id. at 1513, 1515 (upholding our application of Ala.Code 1975, § 13A-5-49(8) and quoting Godfrey, 446 U.S. at 431, 100 S. Ct. 1759). The Eleventh Circuit emphasized that the Alabama appellate courts' interpretation of § 13A-5-49(8) passed muster under the Eighth Amendment because this Court and the Court of Criminal Appeals had consistently defined "especially heinous, atrocious or cruel" to include only "those conscienceless or pitiless homicides which are unnecessarily *108 torturous to the victim." Lindsey v. Thigpen, at 1514 (quoting Ex parte Kyzer, 399 So. 2d 330, 334 (Ala.1981)) (emphasis added).
"`. . . .
"`. . . The State urges us to hold that the "execution-style" murder in this case, for which the record does not reflect torture of the victim, is nonetheless "especially heinous, atrocious or cruel." Such an expansion of the aggravating circumstance set out in § 13A-5-49(8) to encompass a murder not involving torture, merely because the State labels the murder an "execution-style" slaying would abandon the very interpretation that the Eleventh Circuit held critical to the constitutional application of that aggravating circumstance. Indeed, the Supreme Court of the United States has held that a state supreme court's failure to apply its previously recognized limiting construction of an aggravating circumstance, which required a finding of torture or aggravated battery of the victim, rendered the application of the aggravating circumstance unconstitutional. Godfrey, 446 U.S. at 429, 432, 100 S. Ct. 1759.
"`We cannot depart from the established meaning of the words enacted by the Legislature "especially heinous, atrocious or cruel" and apply those words to include murders that do not involve the infliction of torture on the victim.
"`Such a departure would abandon the essential characteristic that made our previous applications of § 13A-5-49(8) compatible with the Eighth Amendment. We are bound to retain the interpretation of "especially heinous, atrocious or cruel" that has provided a consistent and principled distinction between those murders for which the death sentence is appropriate and those for which it is not. See Cartwright, 486 U.S. at 363, 108 S. Ct. 1853; Godfrey, 446 U.S. at 433, 100 S. Ct. 1759.'
"728 So.2d at 1137-41 (some emphasis in original; some emphasis added; footnotes omitted).
"There are three factors generally recognized as indicating that a capital offense is especially heinous, atrocious, or cruel: (1) the infliction on the victim of physical violence beyond that necessary or sufficient to cause death; (2) appreciable suffering by the victim after the assault that ultimately resulted in death; and (3) the infliction of psychological torture on the victim. See Norris v. State, 793 So. 2d 847 (Ala.Crim. App.1999)."
Brooks v. State, 973 So. 2d 380, 417-18 (Ala.Crim.App.2007).
In Norris v. State, 793 So. 2d 847 (Ala.Crim.App.1999), this Court discussed the factor of psychological torture and its importance to a determination that an offense is especially heinous, atrocious, or cruel:
"A third factor that is considered especially indicative of `especially heinous, atrocious or cruel' is the infliction of psychological torture. Psychological torture can be inflicted by `leaving the victim in his last moments aware of, but helpless to prevent, impending death.' [Thomas M.] Fleming, [Annot., Sufficiency of Evidence, for Purposes of Death Penalty, to Establish Statutory Aggravating Circumstance that Murder Was Heinous, Cruel, Depraved, or the Like-Post-Gregg Cases, 63 A.L.R. 4th 478,] § 2[b], at 492-93 [(1988)]. `Thus, mental suffering may be found where a victim witnesses the murder of another (particularly a family member) and then realizes that soon he or she will also be *109 killed, as well as where the victim is expressly taunted with the prospect of his or her own death.' Id. at § 2[b], at 493 (footnotes omitted).
"Alabama courts have recognized that the psychological torture inflicted by a victim's witnessing the death of a family member can be a factor making his subsequent death especially heinous, atrocious, or cruel. . . .
". . . `[E]vidence as to the fear experienced by the victim before death is a significant factor in determining the existence of the aggravating circumstance that the murder was especially heinous, atrocious, or cruel.' Ex parte Rieber, 663 So. 2d 999, 1003 (Ala.), cert. denied, 516 U.S. 995, 116 S. Ct. 531, 133 L. Ed. 2d 437 (1995).
"`[G]enerally reasoning that the victims were already fearful for their lives when the fatal injuries were inflicted. . ., the courts in many cases have held the proof sufficient to establish as a statutory aggravating circumstance that the murder was especially heinous, cruel, depraved, or the like, even though the victim lost consciousness or died from gunshot . . . wounds instantly, within a few seconds or minutes, or otherwise without a time lapse deemed significant by the court, and without suffering other physical injury.'
"Fleming, supra § 2[a], at 489-90. As with the first two factors discussed (repeated infliction of injuries and appreciable suffering after a swift assault), we find that the factor of psychological torture must have been present for an appreciable lapse of time, sufficient enough to have caused prolonged or appreciable suffering, i.e., the period of suffering must be prolonged enough to separate the crime from `ordinary' murders for which the death penalty is not appropriate."
793 So.2d at 859-61.
Here, Mr. Clemons, a 77-year-old man who was 5 feet, 7 inches tall and weighed 139 pounds, left his house on the night of his death, against the protestations of his wife, to retrieve a crowbar he had loaned to Saunders earlier that day. Mr. Clemons located Saunders and found that Saunders was smoking crack cocaine on the Clemonses' property. Mr. Clemons was then confronted by 24-year-old Saunders, who was 5 feet, 11 inches tall and weighed 180 pounds and was wielding the crowbar he had borrowed from Mr. Clemons. As the trial court noted in its sentencing order, Dr. Enstice testified that Mr. Clemons sustained numerous nonlethal injuries to his face; Mr. Clemons suffered bruises and scrapes around his eyes, nose, and mouth, and he sustained many small cuts or lacerations to the skin around his eyes and inside his lower lip. Dr. Enstice testified that these injuries were caused by several blows to his face, and that each of the injuries to the facial area was sustained while Mr. Clemons was alive. (R. 631.) Dr. Enstice also testified about extensive injuries to the deep structures of Mr. Clemons's neck. Those injuries, along with hemorrhages in Mr. Clemons's upper and lower eyelids and in the white parts of his eyes, together with the external bruises and scratches on Mr. Clemons's neck, were "indicative and very consistent with compression of the neck" (R. 634), and Dr. Enstice said that it would have required a "very, very strong force to do that." (R. 636.) The strangulation might have rendered Mr. Clemons unconscious momentarily, Dr. Enstice said, but Mr. Clemons would have regained consciousness and could have gotten up and attempted to move away. Dr. Enstice testified that the injuries to Mr. Clemons's *110 face and neck certainly would have been painful.
Dr. Enstice determined that, although the neck compression or partial strangulation could have contributed to Mr. Clemons's death, the blunt-force trauma that fractured his skull and resulted in extensive injuries to his brain was the actual cause of death. Dr. Enstice testified that the first of the multiple, fatal blows to the head that Saunders inflicted with the crowbar was struck while Mr. Clemons was upright, either standing or kneeling, because the blood from that injury drained downward onto Mr. Clemons's neck and upper back. According to Dr. Enstice, the blood-draining pattern from the remaining blows to the head were consistent with Mr. Clemons being facedown on the ground when those blows were struck. Death would have resulted in less than a minute following the blow to the top of the head or the blow to the right side of the head, each of which caused extensive brain damage. The remaining blows to the head were inflicted close together in time, Dr. Enstice said, and around the time of Mr. Clemons's death. Those injuries would have been painful. Dr. Enstice also stated that if Mr. Clemons fell to the ground after Saunders struck him on the top of the head with the crowbar and incapacitated him, then the injuries to Mr. Clemons's face and neck had to have been inflicted before Saunders hit Mr. Clemons on the head with the crowbar.
Based on this evidence, the trial court reasonably concluded that Saunders struck the slightly built, elderly Mr. Clemons about the face repeatedly and strangled him, though not fatally, before he inflicted the fatal blows to Mr. Clemons's head. The trial court reasonably inferred that during the attack Mr. Clemons would have been in fear for his own life and for that of his elderly wife, whom he had left alone inside the house. In addition, a reasonable inference could be made that Mr. Clemons attempted to fight back against Saunders, given that the knife he kept in the sheath on his belt was found underneath his body and the sheath was empty. While Mr. Clemons was in an upright position, either on his knees or standing, Saunders struck him on the head with the crowbar, incapacitating him. At the time of the fatal blows, Mr. Clemons would have been in extreme pain from all the injuries Saunders had inflicted on him up to that time, and in extreme fear for his own life and for that of his elderly wife, who was alone in the house. Mr. Clemons would have known that his own death was imminent because he could not overcome the attack by the younger, larger man, and he would have been aware that his wife would likely be the next victim of Saunders's violence.
Thus, we conclude that all three factors that are generally recognized as indicating that the offense was especially heinous, atrocious, or cruel are present in this case. Saunders used violence beyond that necessary or sufficient to cause death when he repeatedly struck and then strangled Mr. Clemons before inflicting the fatal blows. The initial blows inflicted by Saunders and the strangulation would have been painful and would have caused appreciable suffering. Finally, Mr. Clemons suffered extreme psychological trauma because he knew that his death was imminent and that he was be unable to protect his wife, who was alone in their house.
For these reasons, we find no error, much less plain error, in the trial court's instructing the jury on the aggravating circumstance that the murder was especially heinous, atrocious, or cruel, or in the trial court's finding the existence of that aggravating circumstance.
*111 XIV.
Saunders contends that the death penalty is unconstitutional. (Issue XV in Saunders's brief.) Saunders argues both that the death penalty constitutes cruel and unusual punishment per se, and that the lethal-injection procedure used in Alabama inflicts unnecessary pain and suffering and constitutes cruel and unusual punishment. Saunders did not raise either of these claims in the trial court; therefore, we review them under the plain-error rule. See Rule 45A, Ala.R.App.P.
In his brief, Saunders makes a general allegation that the death penalty is per se cruel and unusual punishment; however, he does not make any specific arguments in support of this claim. The United States Supreme Court has held that the imposition of the death penalty as a sentence for capital murder is not per se unconstitutional. See Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). In addition, Alabama's capital-murder statute has been upheld against a variety of constitutional challenges. See, e.g., Clark v. State, 896 So. 2d 584 (Ala. Crim.App.2000), and cases cited therein. This Court has also held that lethal injection does not constitute per se cruel and unusual punishment. See, e.g., McNabb v. State, 991 So. 2d 313 (Ala.Crim.App.2007), and cases cited therein. Therefore, Saunders's general claim that the death penalty constitutes cruel and unusual punishment is meritless.
Saunders also argues that the lethal-injection protocol used in Alabama provides for the use of sodium pentathol, pancuronium bromide, and potassium chloride, which, he says, results in the "willful infliction of unnecessary and gratuitous pain and suffering," and constitutes cruel and unusual punishment. (Saunders's brief at p. 76.) Because Saunders raises this claim for the first time on appeal, the record before us contains no evidence about the protocol for lethal injection or about the effects of the drugs on the body when the drugs are injected. Thus, we have nothing to support Saunders's allegations and no basis for concluding that plain error exists as to this claim.
In addition, in Lewis v. State, [Ms. CR-03-0480, November 2, 2007] ___ So.3d ___ (Ala.Crim.App.2006) (opinion on return to remand), this Court recently addressed this same issue:
"As we stated in Bryant v. State, 951 So. 2d 732, 747-48 (Ala.Crim.App.2003) (opinion on return to remand):
"`We note that Alabama's statutory death-penalty scheme has repeatedly been upheld against constitutional challenges. A comprehensive listing of the cases dealing with these challenges can be found in Travis v. State, 776 So. 2d 819, 873 (Ala.Crim.App. 1997), aff'd, 776 So. 2d 874 (Ala.2000), cert. denied, 531 U.S. 1081 (2001). Moreover, we know of no authority in support of the general proposition that death by lethal injection violates a defendant's constitutional rights. Indeed, a number of jurisdictions have rejected such claims. See, e.g., [Sims] v. State, 754 So. 2d 657, 668 (Fla.2000); State v. Carter, 89 Ohio St. 3d 593, 608, 734 N.E.2d 345 (2000); Ritchie v. State, 809 N.E.2d 258, 262 (Ind.2004); Wheeler v. Commonwealth, 121 S.W.3d 173, 186 (Ky.2003). Today, we join these jurisdictions in holding that death by lethal injection is not per se cruel and unusual punishment.
"`. . . .
"See also Brown v. State, [Ms. CR-04-0293, June 29, 2007] ___ So.3d ___ (Ala. Crim.App.2007); Belisle v. State, [Ms. CR-02-2124, March 2, 2007] ___ So.3d ___ (Ala.Crim.App.2007); Brooks v. *112 State, 973 So. 2d 380 (Ala.Crim.App. 2007). In addition to Alabama, other states have likewise rejected constitutional challenges to execution by lethal injection, finding this method is almost `"universally recognized as the most humane method of execution, and least apt to cause unnecessary pain."' State v. Webb, 252 Conn. 128, 145, 750 A.2d 448, 457 (2000) (citing, in turn, Woolls v. McCotter, 798 F.2d 695, 698 (5th Cir.), cert. denied, 478 U.S. 1031 (1986); Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir.1988), cert. denied, 492 U.S. 925 (1989); Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D.Ark.1992); Felder v. Estelle, 588 F. Supp. 664, 674 (S.D.Tex. 1984); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602 (1995); State v. Deputy, 644 A.2d 411, 421 (Del.Super.1994); People v. Stewart, 123 Ill. 2d 368, 386, 123 Ill. Dec. 927, 528 N.E.2d 631 (1988), cert. denied, 489 U.S. 1072 (1989); State v. Moen, 309 Or. 45, 98-99, 786 P.2d 111 (1990); Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo.1990)). We note, however, that since this Court released its decision in Bryant, one California court has held that lethal injection `as actually administered in practice' violates the prohibition against cruel and unusual punishment. See Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D.Cal.2006). Moreover, on September 25, 2007, the United States Supreme Court announced that it would consider whether execution by lethal injection violated the Eighth Amendment's prohibition against cruel and unusual punishment. See Baze v. Rees, [No. 07-5439, September 25, 2007] ___ U.S. ___ (2007). Until the United States Supreme Court provides further guidance on this issue, we decline to revisit our holding in Bryant and its progeny, given the number of other jurisdictions that have rejected the merits of a similar claim."
___ So.3d at ___.
Moreover, we note that although § 15-18-82.1(a), Ala.Code 1975, provides that the primary method of execution in Alabama is lethal injection, unless the person sentenced to death elects to be executed by electrocution, the statute also provides that if lethal injection is held unconstitutional by the United States Supreme Court or by the Alabama Supreme Court, "all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution." § 15-18-82.1(c), Ala.Code 1975. See also § 15-18-82.1(h), Ala.Code 1975 ("In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution."). Therefore, even if Alabama's lethal-injection protocol were found to be unconstitutional, Saunders would not be entitled to a reversal of his death sentence.
For these reasons, Saunders is not entitled to relief on either of these claims.
XV.
Citing Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), Saunders contends that he has a mental disability as a result of his abusive upbringing and that he is therefore not subject to the death penalty. Saunders did not present this argument to the trial court; therefore, we review it for plain error. See Rule 45A, Ala.R.App.P.
In Atkins, the United States Supreme Court held that the execution of mentally retarded capital offenders violates the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution. *113 In his brief to this Court, Saunders "concedes that psychological testing that was done does not appear to have indicated that he is mentally retarded." (Saunders's brief at p. 78.)[14] Despite the fact that Saunders concedes that he is not mentally retarded, he nevertheless argues that "[f]or the same reasons that the mentally retarded may not be executed, Timothy Saunders contends that he fits that pattern as well." (Saunders's brief at p. 78.) However, we find nothing in the Atkins opinion that even remotely suggests that the United States Supreme Court intended its holding to extend beyond mentally-retarded offenders to those offenders with a history of child abuse, and Saunders's attempt to extend the Atkins holding to his case is unpersuasive. Therefore, Saunders is not entitled to any relief on this claim of error.
XVI.
In accordance with Rule 45A, Ala.R.App. P., we have examined the record for any plain error with respect to Saunders's capital-murder convictions, whether or not brought to our attention or to the attention of the trial court. We find no plain error or defect in the proceedings during the guilt phase of the trial.
We have also reviewed Saunders's sentence in accordance with § 13A-5-53(a), Ala.Code 1975, which requires that, in addition to reviewing the case for any error involving Saunders's capital-murder convictions, we shall also review the propriety of the death sentence. This review shall include our determination of the following: (1) whether any error adversely affecting the rights of the defendant occurred in the sentence proceedings; (2) whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we must determine: (1) whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this Court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendant.
After the jury convicted Saunders of two counts of capital murder, a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and -46, Ala. Code 1975. After hearing evidence concerning the aggravating and mitigating circumstances; after being properly instructed by the trial court as to the applicable law; and after being correctly advised as to its function in reference to the finding of any aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury unanimously recommended a sentence of death.
Thereafter, the trial court held another hearing, in accordance with § 13A-5-47, *114 Ala.Code 1975, to aid it in determining whether it would sentence Saunders to life imprisonment without the possibility of parole or to death as recommended by the jury. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b). In its sentencing order, the trial court entered specific written findings concerning the existence of each aggravating circumstance enumerated in § 13A-5-49, Ala.Code 1975, that it found to exist, the existence or nonexistence of each mitigating circumstance enumerated in § 13A-5-51, Ala. Code 1975, and any mitigating circumstance found to exist under § 13A-5-52, Ala.Code 1975, as well as written findings of fact summarizing the offense and Saunders's participation in it.
We note that the trial court did not enter specific written findings as to each of the statutory aggravating circumstances that it found not to exist. However, after its findings regarding the aggravating circumstances that it found to exist, the court then stated in its order: "No aggravating circumstances other than those listed above were established by the State." (C.Supp. 32.) In addition, at the conclusion of the final sentencing hearing, the trial court imposed the death penalty and stated its findings as to aggravating and mitigating circumstances. After the trial court explained the aggravating circumstances that it found to exist, it then stated: "Now, that appears to be the only aggravating circumstances that would be applicable or that the court finds to be applicable in this case." (R. 1355.) Although the trial court's order was not in full compliance with § 13A-5-47(d), Ala. Code 1975, because it did not make findings regarding each aggravating circumstance that it found not to exist, such a technical omission is harmless. In Gavin v. State, 891 So. 2d 907 (Ala.Crim.App. 2003), the trial court entered specific findings as to the three aggravating circumstances that it found to exist, but did not refer to the remaining aggravating circumstances listed in the statute, as required by § 13A-5-47(d), Ala.Code 1975. This Court acknowledged the omission, but found the error to be harmless, stating:
"[I]n Stewart v. State, 730 So. 2d 1203 (Ala.Crim.App.1996), aff'd, 730 So. 2d 1246 (Ala.1999), this Court held that a trial court's failure to make specific written findings regarding those aggravating circumstances in § 13A-5-49, Ala.Code 1975, that it found not to exist was harmless. We stated:
"`[T]he trial court did not "enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49" as required by § 13A-5-47, Ala.Code 1975. Nevertheless, we find this omission to be harmless.
"`"While the trial court's sentencing order is defective, the errors are not so egregious or substantial as to require a new sentencing order. `The sole purpose of requiring that the trial judge, as the sentencing authority, make a written finding of the aggravating circumstance is to provide for appellate review of the sentence of death.' Ex parte Kyzer, 399 So. 2d 330, 338 (Ala. 1981). `[T]he harmless error rule does apply in capital cases at the sentence hearing.' Ex parte Whisenhant, 482 So. 2d 1241, 1244 (Ala.1983). `As long as the trial judge properly exercises his discretion and the facts indicating the death penalty are "so clear and convincing that virtually no reasonable person could differ," a harmless error analysis can be *115 used.' Baldwin v. State, 456 So. 2d 117, 126 (Ala.Cr.App.1983), affirmed, Ex parte Baldwin, 456 So. 2d 129, 140 (Ala.1984). See also Barclay v. Florida, 463 U.S. 939, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983); Thompson v. State, 503 So. 2d 871, 881 (Ala.Cr.App. 1986), affirmed, Ex parte Thompson, 503 So. 2d 887 (Ala.), cert. denied, Thompson v. Alabama, 484 U.S. 872, 108 S. Ct. 204, 98 L. Ed. 2d 155 (1987). We emphasize that `the safer practice would have been for the trial judge to simply follow the verbiage of the statute in negating aggravating circumstances.' Berard v. State, 402 So. 2d 1044, 1051 (Ala.Cr.App.1980)."
"`Fortenberry v. State, 545 So. 2d 129, 144 (Ala.Cr.App.1988).
"`There is nothing to indicate that the trial court refused or failed to consider any aggravating circumstances. Furthermore, this court has before it a sufficient basis for reviewing the appellant's death sentence. Slaton v. State, 680 So. 2d 879 (Ala.Cr. App.1995), aff'd, 680 So. 2d 909 (Ala. 1996), cert. denied, 519 U.S. 1079, 117 S. Ct. 742, 136 L. Ed. 2d 680 (1997); Fortenberry, supra; Kyzer, supra. Therefore, the appellant's argument is without merit.'
"730 So.2d at 1219.
"Similarly, the record here indicates that the trial court did not refuse or fail to consider any applicable aggravating circumstances. At the sentencing hearing before the jury and the sentencing hearing before the court, the State argued the existence of only three aggravating circumstances, the same three that the trial court expressly found to exist. Moreover, given the court's express finding as to the existence of three aggravating circumstances, it is clear that the court found the remaining aggravating circumstances listed in § 13A-5-49, Ala.Code 1975, not to exist and, thus, we have a sufficient basis to review the propriety of Gavin's death sentence. Therefore, we conclude that the defect in the court's sentencing order was a technical error without injury to Gavin."
891 So.2d at 995-96 (footnote omitted). See also Bryant v. State, 951 So. 2d 732, 747 (Ala.Crim.App.2003) (remand not required when trial court listed only the aggravating circumstances it found to exist). Although this Court has remanded cases for the correction of the technical deficiency present here, it has done so only when the sentencing order had additional defects to be corrected. See Gavin, 891 So.2d at 996 n. 33, and the cases cited therein. However, under the circumstances of this case, where it is clear that the trial court considered all the statutory aggravating circumstances and specifically found four aggravating circumstances to exist, and where the court specifically stated that it had found that no other aggravating circumstances existed, we conclude that the deficiency in the sentencing order is harmless.
In its findings, the trial court found the existence of four statutory aggravating circumstances: (1) that the murder was committed during the course of a robbery, see § 13A-5-49(2), Ala.Code 1975; (2) that the murder was committed during the course of a burglary, see § 13A-5-49(4), Ala.Code 1975; (3) that the murder was committed by a person under sentence of imprisonment, see § 13A-5-49(1), Ala.Code 1975; and (4) that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses, see § 13A-5-49(8), Ala.Code 1975. The trial court also found the existence of three statutory mitigating *116 circumstances: (1) that Saunders had no significant history of prior criminal activity, see § 13A-5-50(1), Ala.Code 1975; (2) that the capital offense was committed while Saunders was under the influence of extreme mental or emotional disturbance, see § 13A-5-50(2), Ala.Code 1975; and (3) that Saunders was 24 years old at the time of the crime, see § 13A-5-50(7), Ala.Code 1975. The trial court also heard testimony and argument regarding Saunders's character and record and any of the circumstances of the offense that Saunders offered as a basis for sentencing him to life imprisonment without parole instead of death, see § 13A-5-52, Ala.Code 1975. In this regard, the trial court found as nonstatutory mitigating circumstances:
"There was evidence presented by [Saunders's] sister, Marie Young, of their childhood and the difficulties they had. It appears there were numerous changes of residence, with several being only a few months in length and most being substandard housing. [Saunders] grew up in and around the Mid-Atlantic states of South Carolina, North Carolina, and Virginia. [Saunders's] family life was contentious with alcoholism and violence being the norm. (This was further evidenced by the fact that Marie Young, who lives in South Carolina, was the only family member who attended more than one day of the week-long trial. A woman, who is believed to be [Saunders's] mother and who lives locally, attended for a couple of hours of trial on one day and who did not sit with her daughter, Marie).
"[Saunders] did, however, move to Baldwin County, Alabama to live with his mother and brother, which shows to the Court there was not a total breakdown of the Saunders' family unit. [Saunders's] mother and father did divorce when [Saunders] was a child.
"[Saunders] admitted to having used drugs and having a drug problem, but there was conflicting testimony as to the length and depth of the drug usage. [Saunders] was able to find employment after moving to Baldwin County, working in construction as a framer and roofer and was employed at the time of his arrest for the murder of Melvin Clemons. Though [Saunders] and his siblings may have had a difficult childhood, only one of the six surviving children of L.B. Reed Saunders and Pat Saunders has a felony arrest record."
(S.R. 33-34.)
The trial court's sentencing order reflects that after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the mitigating circumstances, the trial court found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the trial court sentenced Saunders to death. The trial court's findings concerning the aggravating circumstances and the mitigating circumstances are supported by the evidence, and we find no plain error or defect in the penalty phase of the proceedings.
Saunders was convicted of murder committed during the course of a robbery and of murder committed during the course of a burglary. These offenses are defined by statute as capital offenses. See § 13A-5-40(a)(2) and (4), Ala.Code 1975. We take judicial notice that similar crimes have been punished capitally throughout the State. See, e.g., Gavin v. State, 891 So. 2d 907, 997 (Ala.Crim.App.2003), and the cases cited therein involving murders committed during the course of a robbery; Hall v. State, 820 So. 2d 113 (Ala.Crim.App. 1999), aff'd, 820 So. 2d 152 (Ala.2001), and the cases cited therein involving murders committing during the course of a burglary.
*117 After carefully reviewing the record of the guilt phase and of the penalty phase of Saunders's trial, we find no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The trial court's findings and conclusions are amply supported by the evidence. This Court has independently weighed the aggravating circumstances against the mitigating circumstances, and we concur in the trial court's judgment that the aggravating circumstances outweigh the mitigating circumstances, and we agree that death is the appropriate sentence in this case. Considering the crime committed and considering Saunders, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.
For the foregoing reasons, Saunders's capital-murder convictions and his sentence of death are affirmed. In addition, Saunders's conviction and life sentence for attempted murder are also affirmed.
AFFIRMED.
McMILLAN, WISE, and WELCH, JJ., concur.
BASCHAB, P.J., recuses herself.
NOTES
[1] The victims' surname is spelled two different ways in the record"Clemons" and "Clemmons." We use "Clemons" in this opinion.
[2] Saunders was also indicted for the attempted rape of Mrs. Clemons and for burglary. The jury found Saunders not guilty of the attempted-rape charge and, because it was a lesser-included offense of the capital-murder-during-a-burglary charge, the jury did not return a verdict on the burglary charge.
[3] Mr. Clemons's nickname was "Curly."
[4] Mrs. Clemons testified that, throughout the ordeal, Saunders struck her several times.
[5] The record contains one volume of copies of some of the exhibits from the trial. The volume is separately paginated, and pages from that volume are designated "(Ex. ___)" in this opinion.
[6] The attorney who was initially appointed to represent Saunders on appeal filed a "no merit" brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and requested permission to withdraw as Saunders's counsel. On April 17, 2006, this Court granted counsel's request to withdraw; struck the Anders brief counsel had filed; appointed new counsel to represent Saunders on appeal; and directed newly appointed counsel to file a brief with this Court.
[7] Although not argued by Saunders on appeal, we find that the error in destroying the questionnaires does not rise to the level of plain error.
[8] During the trial, before testimony about Saunders's statement was given, Saunders referred to "our previous court hearing and motion to suppress" (R. 695), but the record does not contain a transcript of a hearing on Saunders's motion to suppress. We note, however, that nothing in the record indicates that Saunders requested that pretrial hearings be recorded and, even if he had, he did not request on the Reporter's Transcript Order that the suppression hearing be included in the record on appeal. See, e.g., Broadnax v. State, 825 So. 2d 134 (Ala.Crim.App.2000). Therefore, our review of this issue is based on the testimony presented at trial.
[9] Dr. Brodsky testified at the penalty phase of the trial that, based on his evaluation of Saunders one year after Saunders had committed the crimes, he concluded that Saunders suffered from a major depressive disorder and polysubstance dependency. However, Dr. Brodsky did not testify that the disorders prevented Saunders from voluntarily waiving his rights before he gave his confession. See Click v. State, 695 So. 2d 209, 217-218 (Ala. Crim.App.1996).
[10] In his initial brief, Saunders refers to only two specific pages of the record that he claims contained improper testimony from Dr. Enstice. However, in his reply brief, Saunders lists several additional pages of Dr. Enstice's testimony. Saunders also did not object to these portions of Dr. Enstice's testimony at trial.
[11] Saunders does not challenge on appeal the trial court's denial of the motion in limine as it related to the pending charges he had in South Carolina. Moreover, we have reviewed the record and find no error in the trial court's ruling in that regard.
[12] The record actually reflects that, after the trial court held a charge conference, defense counsel withdrew his objection to the court's decision not to charge the jury on felony murder. (R. 989-90.)
[13] The record does include a written requested jury charge that states: "Voluntary intoxication is no defense unless the degree of intoxication amounts to insanity and renders the accused incapable of forming an intent to injure." (C. 120.) However, there is no indication on the face of that document whether it was submitted by the prosecutor or by Saunders. In addition, although the document does have a checkmark on the line indicating that the charge was not given, because the charge conference is not in the record before us, this Court cannot determine whether the trial court indicated, when denying the requested charge, that it would give a substantially similar instruction.
[14] The case-action summary indicates that defense counsel and the State intended to have Saunders undergo psychiatric testing, and the court imposed a deadline within which defense counsel had to notify the State if counsel intended to argue that Saunders was mentally retarded. (C. 2.) No testimony about the examinations appears in the record, however, nor did defense counsel argue at trial that Saunders was mentally retarded. Joanne Terrell, the social worker who testified on Saunders's behalf at the penalty phase of the trial, testified that she did not conduct any psychological tests, but that Saunders did not appear to be significantly retarded. (R. 1257.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568494/ | 772 S.W.2d 656 (1989)
STATE of Missouri, Respondent,
v.
Michael E. MADSEN, Appellant.
No. 71125.
Supreme Court of Missouri, En Banc.
June 13, 1989.
Rehearing Denied August 1, 1989.
*657 James W. Fletcher, Kansas City, for appellant.
William L. Webster, Atty. Gen., John Munson Morris and Elizabeth L. Ziegler, Asst. Attys. Gen., Jefferson City, for respondent.
BLACKMAR, Judge.
The defendant was convicted of forcible rape (§ 566.030, RSMo 1986) and forcible sodomy (§ 566.060, RSMo 1986). He appeals, invoking the jurisdiction of this court through a challenge to the constitutional validity of the "rape shield" statute, § 491.015, RSMo 1986. Although most of *658 his constitutional challenges have been ruled against his position in earlier cases, cited in Part I of this opinion, he does present one ground which apparently has not been asserted before and so we accept jurisdiction.
The appellant's brief, duplicated from typewritten copy, violates our Rule 81.17 by making use of one and one-half spaces between lines rather than double spacing. The result is a brief substantially longer than would be permitted by Rule 84.04(i), absent special permission. The longer brief has not been helpful to us. It could have profited by condensation and clarification. We nevertheless consider the points raised on the merits and, having done so, affirm the conviction.
I.
The first portion of the brief is directed at the constitutionality of the "rape shield" statute, § 491.015.[1] The defendant and the victim were not previously acquainted. She claimed that she was walking along the side of an important thoroughfare in Independence during the late evening hours, intending to visit friends, when the defendant stopped his car beside her, displayed a knife, and forced her to accompany him. The defendant claimed that he had picked her up in a parking lot outside a combination bar and pool hall and that she had willingly accompanied him as he drove her to his parents' house in eastern Jackson County. She claimed that she submitted to sexual and sodomitic relations only because of the defendant's threats and the display of the knife. He said that she submitted voluntarily. He does not deny the sodomy, but claims that it too was consensual.
The trial judge sustained the prosecutor's motion in limine, directing defense counsel not to refer to any prior sexual relationship between the victim and other men. Counsel, during the course of the trial, offered to prove (1) that the victim was the mother of illegitimate children who had different fathers, (2) that she was living with one S. in a room in his parents' home at the time of the incident and had regular sexual relations with him, and (3) that she had periodic meetings and sexual involvements with still another man at the home of mutual friends. Almost all of his claims of error relate to his attempts to establish the victim's promiscuity, suggesting that she was free with her favors and therefore not resistant to the his advances when they met during her late evening sortie. The inferences he suggests have often been argued in rape trials over the years but were expressly rejected in the rape shield statute.
The defendant initially challenges the constitutional validity of the rape shield statute. Most of the constitutional points have been decided in earlier cases, which we adhere to. State v. Brown, 636 S.W.2d 929 (Mo. banc 1982); State v. Jones, 716 S.W.2d 799 (Mo. banc 1986).[2] We specifically *659 rejected the assertion that the statute is violative of the rule of Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), in Brown, 636 S.W.2d at 934 n. 6. Davis expressed the proposition that a criminal defendant may not be denied the opportunity to introduce any relevant evidence and, specifically, that he could impeach a prosecution witness by use of the witness's juvenile record, because of its substantial bearing on the witness's credibility. We have sustained the legislature's judgment as to the irrelevance of the victim's prior sexual conduct. None of the exceptions recognized by the rape shield law would apply here, and we are informed of no circumstances by reason of which this victim's prior conduct would be otherwise material in this case.
The defendant makes the novel argument that the rape shield law is unconstitutionally vague and "overbroad" because of its failure to define "sexual conduct." We reject this argument also. It is not claimed that the victim had previously engaged in any sexual behavior other than conventional intercourse. The doctrine of vagueness in criminal law is directed at statutes which specify the criminal conduct on which charges are based, and holds that a criminal statute must be sufficiently definite and clear so that the potential violators know what standards of behavior they must adhere to.[3] Overbroadness is a concept appropriate in first amendment cases and may be used to invalidate a statute which, while legitimately punishing unprotected conduct, is so broadly worded that it might be read as punishing protected speech, thereby leaving people in doubt as to the limits of free expression.[4] The rape shield statute is not designed to instruct the defendant about the conduct he must avoid. It exists, rather, to protect the victim. The challenge on the basis of indefiniteness and overbreadth is without legal foundation.
II.
The defendant complains about the following exchange, which took place during the cross-examination of the victim:
Q Did you at any timeafter you got out of the car, did you ever see the knife again?
A Before the bedroom?
Q At any time.
A When he cut the ropes off my wrists.
Q Do you recall, Ms. [J.], back on June 1, testifying that you
MR. WHITWORTH: Judge, objection. This is ridiculous. He's picking up things he wants to read out of the prior court proceeding, and it's not fair to her. There have been many, many hours of
MR. FLETCHER: Your Honor, I'm attempting to impeach her with her prior inconsistent statements.
MR. WHITWORTH: But, Judge, he's got to lay a proper foundation. It's not fair for him to pick out things from these depositions that she's had to subject herself to. It's not fair. (Emphasis supplied).
(Whereupon, the following proceedings were had out of the hearing of the Jury:)
MR. FLETCHER: Your Honor, I want to object to these comments that she's had to subject herself to it. May we have a recess? I want to move for a mistrial.
THE COURT: The motion is overruled.
MR. FLETCHER: Well, I think it's improper for the prosecution to insinuate that she's had to subject herself to depositions. There are rules that allow the defendant and, in fact, say he has the right to take the deposition. If the defendant's invocation of his constitutional *660 rights and statutory rights is subjecting this woman to something, then it's an improper comment and I would ask for a mistrial, or ask that the Jury be instructed to disregard the last comment of the prosecuting attorney.
THE COURT: The motion for a mistrial is overruled, and the motion to instruct the Jury is overruled.
MR. FLETCHER: Your Honor, page one fifty-five of the previous testimony:
"QUESTION: When was the next time, or did you ever see the knife again?
ANSWER: No, sir.
"QUESTION: You never saw it after the initial ride in the car? ANSWER: Not that I can remember, no, sir."
I think I'm entitled to show that she has now changed her testimony. This certainly is relevant and material, because they've alleged that these acts were the result of forcible compulsion.
THE COURT: You can impeach her with a proper foundation, and you've not done that.
The defendant's specific complaint is about the prosecutor's comments such as "these depositions that she's had to subject herself to." He argues that he was prejudiced before the jury by the prosecutor's depreciating the exercise of his right to depose the victim. The comments should not have been made. The defendant had the right to take the deposition and should not be criticized in front of the jury for having exercised the right. The error, however, does not require reversal. The matter of declaring a mistrial is initially for the trial judge to resolve, in the context of the entire case.[5] The brief remarks complained of were made during the course of a tense trial situation. The judge was alert, not without reason, to attempts to inject the victim's sexual history. He might have made the matter easier by instructing the jury to disregard the offensive remarks because, by overruling the motion for instructions, he may have given the jury the impression that the comments were not improper. We nevertheless do not consider them particularly damaging.
The transcript shows several acrimonious exchanges between defendant's counsel and the trial judge during the course of the victim's cross-examination. Counsel tried to impeach the victim by showing inconsistencies between her trial testimony and her deposition testimony. When he put questions in the form of "... do you recall testifying concerning whether or not the Hatlers had a phone," the court would regularly sustain prosecution objections such as "it's not fair to her for him to do this...." When defense counsel inquired about the ruling, the court responded that proper foundation had not been laid. At one point the court remarked:
I'm not going to give you an education, Counsel. You've not laid a proper foundation to read from prior testimony of this witness. She has not denied making any statement that you have attempted to read....
It might appear at first blush that the court would not allow counsel to call the victim's deposition to her attention as a preliminary to asking her whether she remembered giving the testimony. The judge, no doubt, could insist that counsel read questions and answers from the deposition to the witness and then ask whether she remembers the examination, rather than paraphrasing or summarizing the deposition testimony. If this is the problem he sensed, he should make his requirements clear to counsel in preference to dismissing the inquiry with a snippy remark. If the court had given clear directions about what he expected time would probably have been saved. The disposition of the objections is not a model.
The appellant's brief complains in general terms about the court's restriction of the cross-examination. Because of our concern about the essential fairness of the proceedings we have reviewed the cross-examination of the victim carefully. It appears that when counsel first confirmed the witness's trial testimony and then read arguably *661 inconsistent questions and answers from the deposition, the witness was permitted to respond as to whether she remembered giving the answers. By the end of the examination at least, counsel apparently perceived what the court required and could have proceeded with impeachment by means of any inconsistent answers he deemed significant. Counsel freely argued to the jury about the inconsistencies, including varying statements as to whether the Hatlers had a telephone. We conclude, from the whole exchange, that the defendant has not sustained the burden of showing reversible error.
Further complaint is made that the court unduly restricted the scope of the cross-examination. The victim told the police that she had not had sexual relations with any person other than the defendant within 24 hours of the assault. On her first deposition she extended the time to 48 hours. It is asserted that on a second deposition she admitted that these statements were not true. Counsel complains that he was not allowed to show the inconsistencies. There is no error. Inasmuch as the defendant admitted having had relations with the victim, there is no issue of identification in the case. The attempted impeachment, then, would be inadmissible under the rape shield statute. There is no right to impeach by showing inconsistent statements unless those statements are relevant and admissible.[6]
Defense counsel sought to bring out on cross-examination that the victim lived with S. out of wedlock and had regular sexual relations with him. He points to the "surrounding circumstance" exception of the rape shield statute (§ 491.015.1(3)) and suggests that her relationship with S. gave her a motive for making false claims of rape when she appeared in their shared room during the early morning hours following the incident. S. arguably would ask where she had been and would not be pleased if she admitted having been picked up at a pool hall. The inference is tenuous, to put it mildly. There is no testimony that S. demanded an explanation. What the testimony shows is that S. was sleeping soundly and was stirred to waking only with some difficulty after she told him that she had been raped. There is no indication that she parried a demand for accounting with a false accusation of rape. The court was entitled to balance the policy behind the rape shield statute against the attenuated inference the defendant sought to draw. The ruling was amply within his discretion.
The remaining complaints about the cross-examination suggest essentially, that the victim's sexual conduct shortly before the alleged rape should be admissible as a surrounding circumstance in spite of the rape shield statute. The incidents relied on did not "surround" the alleged assault. Thus the holding of State v. Gibson, 636 S.W.2d 956 (Mo. banc 1982), is not helpful to the defendant. The suggestion that she had a motive for reporting a rape because of fear that she had become pregnant by one of her several partners, and the sense that she could more easily secure an abortion if she had been raped, is fanciful. The whole argument boils down to a claim that the rape shield statute unconstitutionally deprives the defendant of the benefit of relevant and material evidence. We have already rejected that contention.
Reversal is not required on account of the several incidents during cross-examination of the victim.
III.
The defendant sought to interrogate S. about his continuing sexual relationship with the victim. He argues that the rape shield statute applies only to the testimony of the victim, pointing to the boldfaced caption of § 491.015, reading, "Prosecuting witness not to be interrogated in certain cases as to prior sexual conduct." The caption, however, is not a part of the statute and cannot vary its express *662 terms.[7] Acts passed by the legislature and signed by the governor do not have boldface captions. These are added by the reviser of statutes in order to provide a useful tool for readers. The theory of the rape shield statute, that prior sexual activity is not probative of the issue of rape unless one of the statutory exceptions obtains, applies not only to the victim's testimony on cross-examination but also to the testimony of other witnesses. Thus we have held that even the defendant may not testify about the victim's prior conduct unless the case fits one of the statutory exceptions.[8]
What we have said disposes of the claim that the court erred in not requiring S. to answer deposition questions about his prior sexual relationship with the victim. The answers were not admissible either as primary evidence or for impeachment, and so there would be no reason to compel deposition testimony following the witness's refusal to answer.
IV.
The state endorsed Patsy Miller, an employee of the Independence police department, on the information as an expert witness. She apparently conducted blood typing analysis on specimens recovered from the defendant's house and car and of vaginal swabs taken from the victim after the incident. The victim testified that her finger had been cut on the defendant's knife at some point during the abduction and attack, and that she wiped blood off on a towel. Counsel would like to show that the blood on the identified towel was not of her type, for its bearing on her credibility. The state did not call Miller as a witness. Defense counsel complained in argument about the failure of the state to produce evidence that the investigating officers had found blood at the scene, intimating that there was no blood.
The defendant proffers two complaints. It appears that Miller was denied certification as a qualified serologist after she failed to pass tests administered by the certifying body. He argues that a mistrial should have been granted because the state violated its discovery obligations in not advising him of this circumstance. He also makes the somewhat inconsistent argument that he should have been able to introduce the test results for such weight as the jury might accord them because the police department had allowed Miller to conduct tests in the past, even though her expert qualifications had been called into question.
We reject these arguments. A laboratory report could not be considered exculpatory unless the tests had been administered by a competent technician. The question of an expert's qualifications is addressed in the first instance to the trial court. State v. Mallett, 732 S.W.2d 527, 537 (Mo. banc 1987). Miller's inability to pass blood typing proficiency tests provides ample reason for not permitting her to testify as an expert on serology. If her testimony could be rejected, the written report of the tests she administered could likewise be excluded. State v. Rhone, 555 S.W.2d 839, 841 (Mo. banc 1977). Thus, the production of the test information, whether before or during trial, would not benefit the defendant.
V.
The defendant complains that he was not allowed to show by evidence that the victim, though never married, was at the time of the incident the mother of two children who had different fathers. He argues that the rape shield statute would not bar this evidence. We reject the point because we perceive no purpose for the offer except to demonstrate that the victim had not led a chaste existence. Use of the evidence for this purpose is precluded by the rape shield statute and there is no suggestion of any other proper purpose. Some judges would not rule out the bare *663 showing by the defense that the victim had children, but it has no bearing on the issues in the case and there was no error.
VI.
The defendant finally complains that he was not allowed to testify about the details of lengthy conversations with the victim, before and after their sexual encounter, in support of his theory that the victim consented. The jury might think it unlikely that a rape victim would engage in substantial discourse with her rapist. The trial judge did not forbid this showing. He took action only when counsel sought to introduce forbidden subjects, such as the victim's having children, and her "problems" with her boyfriends. We are persuaded that counsel was not denied the opportunity to make his point. The defendant was not restricted in his testimony about the conversation except when it took an explicit turn in referring to the children, or relations with the "boyfriends."
It is manifest from the record that the victim had not led a cloistered existence. The evidence shows that she was living with one man while regularly visiting with another, whom she was accustomed to meet at the home of friends, and that, on the night of the incident, she was wandering about the streets at a late hour on a roundabout route which she did not clearly explain. Counsel argued these items to the jury, freely and without interruption. The jury could draw whatever inferences it chose from the circumstances. The trial judge took action only when it appeared that counsel was trying to interject explicit details about her sexual history. The defendant was allowed to present his essential theory.
The judgment is affirmed.
BILLINGS, C.J., and ROBERTSON, RENDLEN, HIGGINS and COVINGTON, JJ., concur.
WELLIVER, J., dissents.
NOTES
[1] Section 491.015, RSMo 1986, reads in part as follows:
1. In prosecutions under chapter 566, RSMo, or prosecutions related to sexual conduct under chapter 568, RSMo, opinion and reputation evidence of the complaining witness' prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness' prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:
(1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime; or
(2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;
(3) Evidence of immediate surrounding circumstances of the alleged crime; or
(4) Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.
2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.
* * * * * *
[2] The writer adheres to the views expressed in his dissenting opinion in Jones, as to the existence of circumstances in addition to those set out in the statute in which prior sexual activity may be admissible. The point is not material in the disposition of this case because, as the ensuing discussion shows, this record presents no such circumstances. I would also adhere to the well reasoned opinion in State v. Ray, 637 S.W.2d 708 (Mo. banc 1982), in which the victim admitted to plural involvements at the same location, and the Court held that the possibility of confusion made the evidence admissible.
[3] Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972); State v. Young, 695 S.W.2d 882, 884 (Mo. banc 1985).
[4] Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1973); State v. Young, 695 S.W.2d at 884.
[5] State v. Schneider, 736 S.W.2d 392, 400-01 (Mo. banc 1987); State v. Anderson, 698 S.W.2d 849, 852-53 (Mo. banc 1985); State v. Gilmore, 681 S.W.2d 934, 943 (Mo. banc 1984).
[6] Bush v. Kansas City Pub. Serv. Co., 350 Mo. 876, 169 S.W.2d 331, 333 (1943); Bressie v. Bressie, 266 S.W.2d 24, 28 (Mo.App.1954).
[7] Bullington v. State, 459 S.W.2d 334, 341 (Mo. 1970); State ex rel. Missouri Hwy. and Trans. Comm'n v. Appelquist, 698 S.W.2d 883, 894 (Mo. App.1985); State ex rel. Rybolt v. Easley, 600 S.W.2d 601, 606 (Mo.App.1980).
[8] State v. Jones, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568511/ | 10 So. 3d 374 (2009)
Thomas ALLEN
v.
ALLSTATE INSURANCE COMPANY, Patrick Brupbacher, Douglas Chesson and Willa Chesson.
No. 08-1451.
Court of Appeal of Louisiana, Third Circuit.
May 6, 2009.
*376 Blake R. David, Broussard & David, L.L.C., Lafayette, Louisiana, for Plaintiff/Appellant, Thomas Allen.
John W. Penny, Jr., Penny & Hardy, Lafayette, Louisiana, for Defendant/Appellee, Allstate Insurance Company.
Mark L. Riley, Onebane Law Firm, Lafayette, Louisiana, for Defendant/Appellee, Halliburton Energy Services.
David A. Hurlburt, Hurlburt, Privat, & Monrose, Lafayette, Louisiana, for Defendant/Appellee, USAgencies Casualty Ins. Co.
Robert L. Ellender, Voorhies & Labbe, Lafayette, Louisiana, for Defendant/Appellee, Patrick Brupbacher.
Maurice L. Tynes, Lake Charles, Louisiana, for Defendants/Appellees, Douglas Chesson and Willa Chesson.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
GENOVESE, Judge.
In this personal injury case, Plaintiff, Thomas Allen, appeals the trial court's grant of summary judgment in favor of Defendant, Allstate Insurance Company (Allstate), finding that no coverage exists for the alleged negligence of Defendant, Patrick Brupbacher, under the personal umbrella policy issued by Allstate to its named insureds, Defendants, Douglas[1] and Willa Chesson (the Chessons). For the following reasons, we affirm.
FACTS
On November 3, 2004, Mr. Allen was involved in an automobile accident in Lafayette, Louisiana, with Mr. Brupbacher, the grandson of Allstate's named insureds, the Chessons. It is undisputed that at the time of the accident: a) Mr. Brupbacher was operating a 1999 Suburban with the permission of its owners, the Chessons; b) Allstate had issued to the Chessons both a primary automobile liability policy bearing policy number 91768237[2] and a personal umbrella policy bearing policy number XXXXXXXXX (the umbrella policy); and, c) Mr. Brupbacher was not residing with the Chessons at the time of the subject accident.
Mr. Allen filed suit against Mr. Brupbacher, the Chessons, and Allstate for the personal injuries he allegedly sustained as a result of the subject accident. Allstate, in its capacity as the insurer under the umbrella policy, filed a Motion for Summary Judgment on the issue of insurance coverage. Allstate contended that there was no liability coverage under the umbrella policy for the actions of Mr. Brupbacher. Additionally, a Motion for Summary Judgment was filed on behalf of Willa Chesson, asserting that Mrs. Chesson did not negligently entrust the vehicle to Mr. Brupbacher and that he was not on a mission for her, thereby triggering vicarious liability. Following a hearing on both Motions for Summary Judgment, the trial court found that no coverage existed under the umbrella policy and that there was no liability, either directly or vicariously, on the part of the Mrs. Chesson. In accordance therewith, the trial court signed a judgment dismissing Allstate and the Chessons from this litigation. It is from this judgment that Mr. Allen appeals.
*377 ISSUES
Mr. Allen presents the following issues for our review:
1. whether the Allstate Insurance Company Umbrella Policy (No. XXXXXXXXX) issued to Douglas and Will[a] Chesson covers Patrick Brupbacher (permissive user) while operating the "covered auto", 1999 G.M.C. Suburban, owned by the Chessons[; and]
2. whether the Allstate Insurance Company Umbrella Policy (No. XXXXXXXXX) issued to Douglas and Will[a] Chesson covers Patrick Brupbacher while operating the "covered auto" on a paid mission for Douglas and Will[a] Chesson.
LAW AND DISCUSSION
Standard of Review
The governing jurisprudence relative to a motion for summary judgment and our appellate standard of review thereof have recently been reiterated by our supreme court as follows:
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3 (La.11/29/06), 950 So. 2d 544, 546, see [La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, XXXX-XXXX[,] p. 17 (La.3/9/07), 951 So. 2d 1058, 1070; King v. Parish National Bank, XXXX-XXXX[,] p. 7 (La.10/19/04), 885 So. 2d 540, 545; Jones v. Estate of Santiago, XXXX-XXXX[,] p. 5 (La.4/14/04), 870 So. 2d 1002, 1006.
Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So. 2d 880, 882-83.
Mayers v. Marmet, 08-127, pp. 5-6 (La. App. 3 Cir. 5/28/08), 985 So. 2d 315, 319-20, writ denied, 08-1402 (La.9/26/08), 992 So. 2d 993 (footnote omitted).
"Permissive User" and "Covered Auto"
Mr. Allen asserts that the umbrella policy provides coverage to Mr. Brupbacher and the 1999 Suburban owned by the Chessons. In support of his contention, he argues that "[t]he primary Allstate policy provides coverage for Patrick Brupbacher (uncontested) and the 1999 G.M.C. Suburban (uncontested)."
Although Mr. Allen classifies Mr. Brupbacher as a "permissive user" and the 1999 Suburban as a "covered auto," these terms are expressly defined and relevant to coverage only under the primary policy which is not at issue. As noted above, coverage under the primary automobile liability policy was not contested by Allstate. Mr. Allen's argument that coverage exists under the umbrella policy on the grounds that Mr. Brupbacher is a "permissive user" and that the Suburban is a "covered auto" under the primary policy is erroneous. As discussed in detail below, coverage under a primary automobile liability policy does not equate to ipso facto coverage under an umbrella policy. The classifications of "permissive user" and "covered auto" under the primary policy are irrelevant to a determination of whether coverage exists under the Allstate umbrella policy for the alleged negligent actions of Mr. Brupbacher while operating the 1999 Suburban.
The question of coverage under the umbrella policy is resolved by the express terms of the umbrella policy itself. On the *378 interpretation of insurance contracts, our supreme court has stated as follows:
An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So. 2d 759, 763; Smith v. Matthews, 611 So. 2d 1377, 1379 (La.1993); Schroeder v. Board of Sup'rs of Louisiana State University, 591 So. 2d 342, 345 (La.1991). If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent and the agreement must be enforced as written. Smith, supra at 1379; Central Louisiana Elec. Co., Inc. v. Westinghouse Elec. Corp., 579 So. 2d 981, 985 (La.1991); Pareti v. Sentry Indem. Co., 536 So. 2d 417, 420 (La.1988); see La. C.C. art. 2046. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Interstate, supra at 763; Fertitta v. Palmer, 252 La. 336, 211 So. 2d 282, 285 (1968). The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. Westinghouse, supra at 985; Pareti, supra at 420; see La. C.C. art.2050. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Interstate, supra at 764; Smith, supra at 1379; Pareti, supra at 420; see La. C.C. art.2056.
Hebert v. Webre, 08-60, pp. 4-5 (La.5/21/08), 982 So. 2d 770, 773-74.
In this case, the umbrella policy sets forth, relative to coverage, that "Allstate will pay when an insured becomes legally obligated to pay for personal injury, property damage or bodily injury caused by an occurrence." These highlighted terms are expressly defined within the "[d]efinitions" section of the umbrella policy. Included therein is the definition of "[i]nsured" which includes "you" and "relatives residing in your household." The terms "[y]ou" or "[y]our" are defined to mean "the person named in the declarations." The declarations in the instant policy include the "NAMED INSURED(S)[,]" "Dr[.] Douglas Chesson" and "Willa C[.] Chesson."
Based upon these express policy provisions, for coverage to exist under the umbrella policy for the alleged negligent actions of Mr. Brupbacher, he must first meet the definition of "insured." Obviously, he is not one of the named insureds, Dr. and Mrs. Chesson. Additionally, it is not disputed that Mr. Brupbacher, although a relative of the Chessons, was not residing in their household. As such, Mr. Brupbacher is not an "insured" under the umbrella policy. The umbrella policy provides coverage only to those individuals meeting the definition of "insured" which does not include every permissive user of a vehicle owned by the named insureds. These clear and explicit policy provisions must be enforced as written.
In support of his assertion that coverage exists under the umbrella policy for the subject accident, Mr. Allen also relies on the definition of an "insured auto," which the umbrella policy defines as "a motor vehicle for which this policy provides excess liability insurance for an insured person with respect to the accident." Mr. Allen then reasons that "[i]t is uncontested that this 1999 G.M.C. Suburban *379 is a covered auto under the primary policy. Accordingly, the Chesson vehicle and its permissive user are insureds under this following form umbrella policy." (emphasis added). Taking the analysis a step further, Mr. Allen then concludes that, given the accident is within the ambit of coverage, "[i]t is Allstate's burden to prove that this following form umbrella policy excludes coverage for Patrick Brupbacher (an insured under the primary policy)."
Again, Mr. Allen's reliance on the primary policy is misplaced. The fact that the Suburban is a "covered auto" under the primary policy has no bearing on an analysis of coverage under the umbrella policy. Additionally, Mr. Allen asserts in his brief that "[t]here is no exclusion for coverage under the umbrella policy." As to this contention, it is Mr. Allen who bears the burden of proving the existence of coverage under the relevant policy. Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So. 2d 916. It is only if Mr. Allen meets this burden that Allstate then bears the burden of proving the application of an exclusion.
As noted by Allstate, "[i]n essence, [Mr.] Allen is arguing that [Mr.] Brupbacher is an `omnibus insured' under the Compulsory Motor Vehicles Liability Security Law (La.R.S. 32:861)." However, we agree with Allstate that these statutory requirements are not applicable in the present case.
In keeping with the mandatory automobile liability coverage requirements, La. R.S. 32:900(B)(2) (emphasis added) requires a "Motor Vehicle Liability Policy" to include an omnibus clause which extends coverage to "insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured [.]" However, a personal umbrella policy is not a "Motor Vehicle Liability Policy." Our supreme court distinguished such a policy, which is statutorily mandated to provide an omnibus clause, from an "automobile liability policy" reasoning as follows:
The plaintiffs fail to discern the distinction between a "motor vehicle liability policy" and an "automobile liability policy." The term "motor vehicle liability policy" is defined by La.R.S. 32:900(A) as "an owner's or an operator's policy of liability insurance, certified as provided in R.S. 32:898 or 32:899 as proof of financial responsibility, and issued . . . by an insurance carrier duly authorized to transact business in this state. . . ." By purchasing a "motor vehicle liability policy" an owner or operator satisfies the requirements of the [Louisiana Motor Vehicle Safety Responsibility Law (LMVSRL)]. In contrast, an "automobile liability policy" is a voluntary policy which has not been certified as proof of a motorist's financial responsibility and does not therefore satisfy the requirements of the LMVSRL.
[The] language of La.R.S. 32:900(B)(2) clearly indicates the mandatory omnibus clause requirement applies only when the liability policy in question is certified and used as proof of financial responsibility. New Zealand Ins. Co. v. Holloway, 123 F. Supp. 642 (W.D.La.1954); Gotreaux v. Travelers Ins. Co., 299 So. 2d 466 (La.App. 3rd Cir.), writ denied, 302 So. 2d 309 (La.1974); Johnson v. Universal Automobile Ins. Ass'n, 124 So. 2d 580 (La.App. 3rd Cir.1960). La. R.S. 32:900(B)(2) does not affect the terms of a voluntary "automobile liability policy" which was not obtained to comply with the requirements of the LMVSRL.
Hearty v. Harris, 574 So. 2d 1234, 1239 (La.1991) (footnotes omitted).
*380 In this case, the umbrella policy is a voluntary "automobile liability policy," and, as such, omnibus insured coverage is not required to be included under the mandate of La.R.S. 32:900. To the contrary, "the insurer in an umbrella policy is not providing compulsory coverage[,] and the insurer has the right to express the limits of its liability. The insured is free to accept or reject those terms." Walker v. State Farm Mut. Auto. Ins., 37,063, p. 11 (La.App. 2 Cir. 6/25/03), 850 So. 2d 882, 889, writs denied, 03-2019, 03-2117 (La.12/19/03), 861 So. 2d 574, 575.
Therefore, even if Mr. Brupbacher was operating the Suburban with the express permission of the Chessons, coverage does not inure to his benefit as an omnibus insured. To so conclude would be to subvert the express policy definition of "insured" under the umbrella policy which is not statutorily mandated to extend coverage to an omnibus insured under the terms of the insurance contract.
We have also considered the case of Lambert v. Lavigne, 04-1961 (La.App. 1 Cir. 9/23/05), 923 So. 2d 704, writ denied, 05-2283 (La.3/10/06), 925 So. 2d 515, which is discussed by both parties and which was cited by the trial court in support of its holding. Mr. Allen would have this court distinguish Lambert, noting that it involved uninsured/underinsured motorist (UM) coverage and did not discuss a covered auto nor a permissive user. Conversely, Allstate points out that its policy language is the identical policy language appearing in the umbrella policy considered in Lambert. Despite its application in the UM context, we find Lambert to be instructive.
In Lambert, the plaintiff was a guest passenger seeking UM coverage under a primary automobile insurance policy and a personal umbrella policy issued to the host driver by Allstate. Lambert recovered UM benefits under the primary policy, having met that policy's definition of an insured. Additionally, despite not being an insured under the umbrella policy, Lambert sought to "extend UM coverage provided for in the umbrella policy to persons who are injured while occupying an automobile owned by the named insured." Id. at 706. Allstate filed a motion for summary judgment on the issue of UM coverage, contending that coverage was not available to Lambert. "Allstate asserted that Lambert was not an `insured' under the umbrella policy, which define[d] insureds for the purpose of UM coverage to include only the named insured and any resident relative and their legal representative." Id. at 705.
According to the first circuit, the trial court "noted that each of the policies contained different definitions of an `insured,' and while Lambert was an insured under the primary policy and collected the UM limits thereunder, Lambert did not meet the definition of an insured in the umbrella policy and could not recover under that policy." Id. at 706. The appellate court found that "[i]t [was] undisputed in this case that Lambert [did] not meet the personal umbrella policy's narrowly drawn definition of an `insured' . . . which defines an insured to include [the named insured] and relatives residing in his household." The first circuit commented that "[a]lthough the result mandated by the policy language seems onerous, given the nature and purpose of an umbrella policy, i.e., to afford an added layer of protection to consumers who obtain such policies, [it] must conclude the parties are bound by the policy language as written." Id. at 707. Thus, to the extent that the first circuit was applying the express definition of "insured" in a personal umbrella policy, the reasoning of Lambert is applicable to the case at bar. As with the plaintiff in *381 Lambert, we find that Brupbacher does not meet the definition of "insured" under the Allstate umbrella policy.
"Mission Theory"
Mr. Allen also asserts that "[t]he liabilities of Patrick Brupbacher are covered by the Allstate Umbrella Policy while he was on [a] mission for Dr. and Mrs. Chesson." In support of his contention that coverage exists under the umbrella policy, Mr. Allen argues that there are two different definitions of an "insured" in the policy. The first definition, as discussed above, is limited to the named insured and residents of the household. Mr. Allen asserts, however, that the umbrella policy contains a second and more expansive definition of "insured." Relying upon a "mission theory,"[3] Mr. Allen asserts that Mr. Brupbacher was a "legal representative[ ]" of the Chessons, and thus, he is included in this second definition of "insured" within the umbrella policy. We disagree.
Notably, this second definition of "insured" is found in a "Louisiana Personal Umbrella Policy Amendatory Endorsement" and appears under the heading "Uninsured Motorists Insurance Coverage SS." As such, this second policy definition of "insured" is wholly irrelevant to the claims asserted herein by Mr. Allen which do not invoke the UM provisions of the umbrella policy.
We note that a brief was filed with this court on behalf of Mrs. Chesson wherein she urges this court to affirm the finding of the trial court "that no fact[s] exist[ ] on which to hold Willa Chesson or Dr. Douglas Chesson guilty of negligent entrustment" and that no "fact[s] exist[ ] to establish vicarious liability on the part of Willa Chesson[] on the theory of `mission.'" However, both issues presented on appeal by Mr. Allen relate to coverage, vel non, under the umbrella policy. Therefore, the issue of a "mission theory" would only be relevant to a determination of coverage under the umbrella policy. The judgment of the trial court granting the Motion for Summary Judgment on behalf of Mrs. Chesson, holding that "Willa Chesson has no direct liability nor vicarious liability for the alleged acts of Patrick Brupbacher," is not before this court.
DECREE
For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Allstate Insurance Company is affirmed. Costs of this appeal are assessed to Thomas Allen.
AFFIRMED.
NOTES
[1] Douglas Chesson died after the institution of this litigation.
[2] Coverage under the primary automobile liability policy was conceded by Allstate.
[3] Mr. Allen argues that "[Mr.] Brupbacher was paid by Mrs. Chesson to clean the gutters, was told by Mrs. Chesson to use her Suburban to pick up her ladder (that belonged to Dr. and Mrs. Chesson) for the job, and got in an accident while on this mission." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568520/ | 10 So. 3d 127 (2009)
Mark H. GIBBONS, Appellant/Cross-Appellee,
v.
Martha Lee James GIBBONS, Appellee/Cross-Appellant.
No. 2D07-5480.
District Court of Appeal of Florida, Second District.
March 18, 2009.
*128 Virginia R. Vetter, Tampa, for Appellant/Cross-Appellee.
Ellen E. Ware and Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellee/Cross-Appellant.
WALLACE, Judge.
Mark H. Gibbons (the Husband) raises multiple challenges to the provisions of the final judgment that dissolved his marriage to Martha Lee James Gibbons (the Wife). The Wife cross-appeals. Two issues warrant discussion: (1) the trial court's award to the Wife of one-half of the benefits payable under the Husband's private disability insurance policies after the Husband reaches the age of sixty-five (the post-65 disability benefits) and (2) the trial court's decision to classify as nonmarital the Wife's indebtedness on certain shareholder loans made to her from the parties' closely held corporation before the filing of the petition for dissolution of marriage.
I. THE HUSBAND'S DISABILITY POLICIES
A. The Factual Background
The parties were married in 1976. The Husband is a member of The Florida Bar and worked as an attorney in Tampa until he became disabled. The Wife is a teacher and librarian at a middle school.
*129 The parties separated in 2002, but the petition for dissolution of marriage was not filed until February 7, 2006. The final judgment was entered on October 16, 2007. On the date of the entry of the final judgment, the Husband was fifty-five years old and the Wife was fifty-six.
The Husband is disabled as a result of a medical condition. The onset of the Husband's medical condition occurred in 1994, but he continued to work as an attorney until 2000. The Husband has been receiving disability benefits since 1994.
Before the inception of his disabling medical condition, the Husband wisely purchased three separate disability insurance policiesone with Monarch Life Insurance Company and two with Unum.[1] At the time of the final hearing, the Husband was receiving $2100 per month from the Monarch policy and $648.60 per month from each of the Unum policies.
The payments from the Monarch policy are scheduled to terminate when the Husband reaches the age of sixty-five years. The Unum policies have a different structure. Unlike the Monarch policy, the benefits payable under the Unum policies do not automatically terminate when the Husband reaches a specific age. The Husband testified that the benefits payable under the Unum policies continue "indefinitely," subject to the condition that he remains disabled. The policies were not introduced into evidence.
B. The Trial Court's Ruling
After the final hearing, the trial court classified the Husband's three private disability policies as marital property and made the following detailed ruling concerning them:
The husband's disability policies are marital property. They were contracted during the marriage, and premiums were paid from marital funds. The wife argues the court should separate the "pain and suffering" value of the proceeds from the "retirement" value of the proceeds, citing Rumler v. Rumler, 932 So. 2d 1165 (Fla. 2d DCA 2006). Rumler, however, provides scant guidance in this case, because the contractual disability policies here are different in nature than the city of Homestead retirement plan implicated in Rumler. Contractual disability policies are strictly economic, intended to cover lost earnings, with no component of compensation for pain and suffering. This fact distinguishes Freeman v. Freeman, 468 So. 2d 326 (Fla. 5th DCA 1985), cited by the husband.
Some of these disability policies continue beyond normal retirement age, on the theory that the disabled person could have contributed to a retirement plan and become entitled to retirement payments had he remained working. Some policies stop benefits at retirement age, on the theory that the income replacement benefit was sufficient that the recipient could contribute to his own retirement fund. The husband in this case had two policies of the first kind, and one of the second. Following Rumler and its implications for this case, the income from the policies from now until the husband reaches 65, while arguably a marital asset, is the reason the wife cites for denial of the husband's alimony claim: that he has this income and therefore no "need" for alimony purposes. Since these payments exist to replace income lost due to [the] husband's disability, the court treats the *130 payments as if they were income, rather than an asset. Not so with the payments arriving after the husband reaches age 62.[[2]] The right to receive those payments in the future is the very definition of a retirement plan, subject to equitable distribution under section 61.076(1). Once the husband reaches age 62, the wife is entitled to half of each disability policy benefit payment.
Based on this ruling, the trial court ordered that "[o]nce the Husband reaches the normal retirement age of 65, the Wife shall receive one-half of each disability policy benefit payment, either directly, if possible, or, if not, by immediate payment to her by the Husband upon his receipt of each payment."
Because the benefits payable under the Monarch policy are scheduled to terminate when the Husband reaches the age of sixty-five, the final judgment does not impact that policy. The effect of the trial court's order is to give the Wife one-half of the benefits payable under the two Unum policies once the Husband reaches the age of sixty-five.
C. The Parties' Arguments
On appeal, the Husband challenges the award of one-half of the post-65 disability benefits to the Wife. The Husband argues that his disability policies are not marital assets. He also points out that there is no competent, substantial evidence in the record that any portion of the benefits payable under his disability policies represents or is a substitute for retirement benefits.
In response, the Wife argues that the disability policies are marital assets under section 61.075(5)(a)(4), Florida Statutes (2005), because they were purchased with marital funds. According to the Wife, the trial court properly concluded that the post-65 disability benefits are retirement benefitsnot payments on account of the Husband's disabilitybecause sixty-five is the normal age of retirement.
D. Discussion
Generally speaking, an employer-sponsored disability pension does not constitute a marital asset subject to equitable distribution. See Gay v. Gay, 573 So. 2d 180, 180 (Fla. 2d DCA 1991) (holding that a disabled spouse's disability plan was not a marital asset) (citing Freeman v. Freeman, 468 So. 2d 326, 328 (Fla. 5th DCA 1985) (holding that a disability pension designed to compensate an employee for lost earnings and injuries (including pain and suffering) sustained on the job was not a marital asset)); Hoffner v. Hoffner, 577 So. 2d 703, 704 (Fla. 4th DCA 1991) (concluding that the husband's disability pension was not a marital asset subject to equitable distribution). Similarly, where the money that a disabled spouse receives from disability benefits from a private disability policy constitutes payment for future lost wages based on the disabled spouse's inability to work, the disability policy is a nonmarital asset not subject to equitable distribution. See Kay v. Kay, 988 So. 2d 1273, 1275 (Fla. 5th DCA 2008).
On the other hand, retirement benefits are subject to equitable distribution. See Smith v. Smith, 934 So. 2d 636, 640 (Fla. 2d DCA 2006). As this court has recently noted:
"[A] spouse's entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property." *131 Acker v. Acker, 904 So. 2d 384, 386 (Fla. 2005) (quoting Diffenderfer v. Diffenderfer, 491 So. 2d 265, 270 (Fla.1986)); see also § 61.075(5)(a)(4), Fla. Stat. (2003) (defining "marital assets" to include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs"); § 61.076(1) ("All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution."); Reyher v. Reyher, 495 So. 2d 797, 799 (Fla. 2d DCA 1986).
Rumler v. Rumler, 932 So. 2d 1165, 1166 (Fla. 2d DCA 2006) (alterations in original). Thus benefits payable to a disabled spouse will be treated differently for purposes of equitable distribution depending upon whether the benefits are characterized as disability benefits or as retirement benefits. See id. See generally Kenneth Strauss, Characterization for Purposes of Divorce: Retirement Pension Benefits vs. Disability Benefits, 11 J. Contemp. Legal Issues 234 (2000) (discussing the disparate treatment of retirement and disability benefits in divorce).
The difference in the treatment of disability benefits and retirement benefits for the purpose of equitable distribution requires careful analysis where a disability pension or private disability policy is at issue. As one court has noted:
[D]isability benefits may serve multiple purposes. They may compensate for the loss of earnings resulting from compelled premature retirement and from a diminished ability to compete in the employment market. Disability benefits may also serve to compensate the disabled person for personal suffering caused by the disability. Finally, disability benefits may serve to replace a retirement pension by providing support for the disabled worker and his family after he leaves the job.
Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580, 582 (1988). Thus, reaching a correct result relative to the equitable distribution of "disability benefits" requires looking beyond labels to the character and purpose of the benefit under review. See id.; Strauss, supra, at 239.
Because of the multiple purposes that may be served by disability benefits, the Florida courts employ an analytical approach to determining whether any portion of such benefits actually constitutes retirement benefits subject to classification as marital property. The analytical approach looks to the nature and purpose of the benefits at issue:
When a disability pension is involved, the trial court must determine "what portion of the pension represents compensation for pain and suffering, disability and disfigurement, and what portion, if any, represents retirement pay." Brogdon v. Brogdon, 530 So. 2d 1064, 1066 (Fla. 1st DCA 1988). Only the retirement portion is subject to equitable distribution. Id.; cf. Weisfeld v. Weisfeld, 545 So. 2d 1341, 1345-46 (Fla. 1989) (employing analytical approach focusing on purpose of personal injury compensation to determine what portion is marital property).
Rumler, 932 So.2d at 1166. See generally Disability BenefitsClassification, 14 No. 9 Equitable Distribution J. 97 (1997) (summarizing the classification of disability benefits obtained through employment and from private insurance policies).
To date, the reported Florida cases applying the analytical approach to a consideration of whether any portion of disability benefits payable to a disabled spouse contains *132 a retirement component have arisen in the context of employer-sponsored disability plans. See, e.g., Rumler, 932 So.2d at 1166-67 (municipal police disability pension); Gaffney v. Gaffney, 965 So. 2d 1217, 1220-21 (Fla. 4th DCA 2007) (Florida Retirement System benefits); Davidson v. Davidson, 882 So. 2d 418, 420 (Fla. 4th DCA 2004) (retirement pension converted to a disability pension); Brogdon v. Brogdon, 530 So. 2d 1064, 1065-66 (Fla. 1st DCA 1988) (civil service disability pension). As the trial court noted in its order, different considerations arise in cases involving private disability policies than in cases involving employer-sponsored plans.[3] However, the trial court fell into error when it relied exclusively on the recognition of sixty-five as the normal age of retirement for workers in the United States[4] as the basis for its conclusion that the Husband's right to receive the post-65 disability benefits "is the very definition of a retirement plan."
Disability insurance may be defined as "[c]overage purchased to protect a person from a loss of income during a period of incapacity for work." Black's Law Dictionary 816 (8th ed. 2004). Private disability insurance policies such as the ones at issue in this case are "designed to provide a substitute for earnings when the insured is deprived of his capacity to earn by bodily injury or disease." Hill v. New York Life Ins. Co., 38 Cal. App. 2d 627, 101 P.2d 752, 755 (1940). Thus true disability benefits payable to a disabled spouse after the dissolution of the marriage represent a substitute or replacement for the loss of future earnings.
Compensation payable for future lost earnings is the separate property of the injured or disabled spouse. See White v. White, 705 So. 2d 123, 124 (Fla. 2d DCA 1998); Bollaci v. Nieporte-Bollaci, 863 So. 2d 440, 442 (Fla. 4th DCA 2003). Thus, to the extent that benefits payable under a private disability policy represent a substitute for future lost income, such benefits are the separate property of the disabled spouse. Accordingly, such disability benefits are not a marital asset and are not subject to equitable distribution. See Kay, 988 So.2d at 1275.
Here, the Husband testified that the disability benefits payable under the Unum policies would continue "indefinitely." However, the Husband also testified that the continued payment of these benefits is subject to the condition that he remains disabled. This testimony was unrebutted. The policies themselves were not introduced into evidence. Furthermore, there was no evidence before the trial court that the post-65 disability benefits contained a retirement component. In the absence of any evidence to the contrary, the Husband's testimony that the payment of the post-65 disability payments was subject to the condition that he remains disabled established that those benefits were to be paid on account of his disability as a replacement for the loss of his future income. It follows that the post-65 disability benefits were the Husband's separate property and were not subject to equitable distribution. See id.; see also Hoffner, 577 So.2d at 704 (holding that in the absence of proof that the payments on *133 the husband's disability pension had any component which could be identified as a marital asset, the pension was not a marital asset subject to equitable distribution); Gragg v. Gragg, 12 S.W.3d 412, 419 (Tenn. 2000) (holding that where there was no evidence that the private disability benefits payable to the husband after he reached the age of sixty-five were intended to be supplemental retirement funds and where the evidence also showed that the continuation of the benefits after the husband reached the age of sixty-five was subject to the condition that the husband remained unable to work, the disability benefits were a replacement for the husband's future income lost due to his disability and were not marital property).
For these reasons, we agree with the Husband that there was no competent, substantial evidence in the record supporting the trial court's conclusion that the post-65 disability benefits were retirement benefits subject to equitable distribution under section 61.076(1). Accordingly, we reverse the portion of the final judgment awarding the Wife one-half of the post-65 disability benefits.
II. THE WIFE'S SHAREHOLDER LOANS
The parties each owned shares in a closely-held corporation called Lee Groves, Inc. The Wife owned 96.48% of the shares in Lee Groves; the Husband owned the remaining 3.52%. The trial court found that each party's shares in the corporation were nonmarital.
On the date of the filing of the petition for dissolution of marriage, the Wife had loans outstanding from Lee Groves in the amount of $62,440.39. After the filing of the dissolution petition, the Wife borrowed additional amounts from the corporation. The Wife testified that she had used the funds borrowed from the corporation to pay the family's living expenses. In this regard, we note that the parties had two children. After the parties separated in 2002, the children resided with the Wife in the marital home.[5]
The trial court classified all of the Wife's shareholder loans from Lee Groves as nonmarital debt. On her cross-appeal, the Wife argues that the trial court erred in failing to classify the $62,440.39 that she had borrowed before the filing of the petition as a marital liability.
We agree with the Wife. The parties did not have a valid separation agreement. Therefore, the date of the filing of the petition was the "cut-off date" for determining the marital classification of assets and liabilities. § 61.075(6); Rao-Nagineni v. Rao, 895 So. 2d 1160, 1161 (Fla. 4th DCA 2005). The trial court erred in failing to classify the Wife's shareholder loans as a marital debt to the extent of the $62,440.39 borrowed before the petition was filed. See § 61.075(5)-(7); Alpert v. Alpert, 886 So. 2d 999, 1003 (Fla. 2d DCA 2004); Martin v. Martin, 816 So. 2d 185, 186 (Fla. 1st DCA 2002). We are not persuaded by the Husband's argument that as the majority shareholder of Lee Groves, the Wife was not obligated to repay the shareholder loans to the corporation.
Accordingly, we reverse the final judgment to the extent that it failed to classify as a marital debt the $62,440.39 that the Wife had borrowed before the filing of the petition. Here, as in Alpert, we note that the trial court divided the parties' marital assets and liabilities equally. Accordingly, *134 on remand, "the trial court shall revisit the equitable distribution scheme in order to achieve an equal division of the parties' marital assets and liabilities." Alpert, 886 So.2d at 1003.
In all other respects, the final judgment is affirmed.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
WHATLEY,[6] J., and MORRIS, ROBERT J., JR., Associate Judge, Concur.
NOTES
[1] The vouchers in the record that correspond to the Unum payments reflect the name of the payer as Provident Life and Accident Insurance Company.
[2] On the Husband's motion, the trial court amended its ruling in the final judgment to provide that payment of one-half of the Husband's disability benefits to the Wife would begin when the Husband reaches age sixty-five instead of age sixty-two.
[3] For a discussion of the different considerations involved in applying the analytical approach to employer-sponsored disability plans and private disability policies, see Saslow v. Saslow (In re Marriage of Saslow), 40 Cal. 3d 848, 221 Cal.Rptr.546, 710 P.2d 346, 350-53 (1985).
[4] See Pimm v. Pimm, 601 So. 2d 534, 537 (Fla. 1992) ("The age of sixty-five years has become the traditional and presumptive age of retirement for American workers ....").
[5] The older child reached the age of majority after the parties separated but before the filing of the petition for dissolution of marriage.
[6] Judge Whatley has been substituted for Judge Stringer, an original panel member in this proceeding, and he has viewed and listened to a recording of the oral argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568500/ | STATE OF LOUISIANA
v.
G.R.H.
No. 08-1549.
Court of Appeals of Louisiana, Third Circuit.
June 3, 2009.
Not Designated for Publication
THOMAS E. GUILBEAU, Attorney at Law, Counsel for Defendant-Appellant: G.R.H.
KEITH B. NORDYKE, Nordyke and Greenfield, L.L.C., Counsel for Defendant-Appellant: G.R.H.
MICHAEL HARSON, District Attorney, KEITH A. STUTES, Assistant District Attorney, Office of the District Attorney, Counsel for Appellee: State of Louisiana.
Court composed of AMY, PICKETT, and PAINTER, Judges.
PAINTER, JUDGE
Defendant, G.R.H., was charged with one count of aggravated rape, a violation of La.R.S. 14:42; and two counts of molestation of a juvenile, violations of La.R.S. 14:81.2.[1] After a jury found him guilty as charged, he was sentenced to life imprisonment at hard labor. Defendant now appeals his conviction and sentence. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was accused of raping his niece, P.B., who was under the age of twelve at the time of the offense. The bill of indictment charged that the offense occurred between 1966 and 1972. Defendant was charged by bill of indictment filed on October 25, 2006, with one count of aggravated rape, a violation of La.R.S. 14:42; and two counts of molestation of a juvenile, violations of La.R.S. 14:81.2. A written plea of not guilty was filed on November 28, 2006.
A Motion for Severance of Offenses was filed on February 7, 2007. On July 17, 2008, the State moved to sever the offenses of molestation of a juvenile and proceed to trial on the charge of aggravated rape. Trial commenced on July 16, 2008, and the following day, the jury found the Defendant guilty as charged. On July 31, 2008, the trial court sentenced the Defendant to life imprisonment at hard labor. A Motion for Appeal was subsequently granted, and Defendant is now before this court asserting the following six assignments of error:
1) The Trial Court erred in failing to dismiss the prosecution as time barred and as a violation of the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section two of the Louisiana Constitution.
2) The Trial Court erred in allowing other crimes evidence of the alleged sexual touching of two nieces C.H. and D.H.[2]
3) The Trial Court erred in imposing a sentence of life imprisonment when the jurisprudence would permit only a twenty year sentence.
4) If this Court rules that the prosecution was capital in nature, then procedural rules in effect in 1972 should be applied and a reversal is mandatory.
5) Under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979), the evidence was insufficient to sustain this conviction.
6) G.R.H. requests that this Honorable Court determine if there are unbriefed errors patent and reverse for same.
For the following reasons, we find that these assignments of error lack merit, and we affirm Defendant's conviction and sentence.
DISCUSSION
Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After a thorough review of the record in this case, we find that there are no errors patent.
Sufficiency of Evidence
"When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence." State v. Hearold, 603 So. 2d 731, 734 (La. 1992). Thus, we first address Defendant's fifth assignment of error wherein he contends that the evidence was insufficient to sustain his conviction.
In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Captville, 448 So. 2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, "assuming every fact to be proved that the evidence tends to prove." La. R.S. 15:438; see State v. Neal, XXXX-XXXX p. 9 (La.6/29/01), 796 So. 2d 649, 657, cert. denied, 535 U.S. 940, 122 S. Ct. 1323, 152 L. Ed. 2d 231 (2002). The statutory requirement of La. R.S. 15:438 "works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury." Neal, XXXX-XXXX p. 9, 796 So.2d at 657.
State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So. 2d 583, 592, cert. denied, ___ U.S. ___, 128 S. Ct. 537 (2007).
Defendant was convicted of aggravated rape occurring between 1966 and 1972.
During that time, La.R.S. 14:42 defined aggravated rape as follows:[3]
"Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:
....
"(3) Where she is under the age of twelve years. Lack of knowledge of the female's age shall not be a defense.
State v. Miller, 111 So. 2d 108, 111 (La.1959).
P.B. testified that during the 1960's she spent the night at the home of her uncle, the Defendant, and her aunt, P.H., many times. She recalled sharing the room with their daughter, who was in a crib, and that Defendant came into the room looming over her. P.B. further testified that Defendant would have her walk around the bedroom and then he would rub her genitals inside and outside her clothing. P.B. was not sure if Defendant's fingers went inside her vagina. P.B. further testified that Defendant masturbated in her presence. These acts occurred every time P.B. went to Defendant's home in Broussard, and she was there no less than one to two times a month for a least one to two nights.
The following exchange occurred regarding P.B.'s age at the time of these events:
Q. There's public records downstairs in the clerk's office that indicate [the Defendant's daughter's] date of birth is in 1968. You were born in 1966. Does that fit A.
A. '64. '62. Excuse me.
Q. '62? '62. I'm sorry. So you were born in '62. She was born in '68.
A. Okay.
Q. All right. So, when she was a young child, in 1968, this is when the acts began to start on you?
A. Yes.
Q. So, by that figuring, in 1968, you were about how old?
A. Six.
P.B.'s date of birth was August 30, 1962.
P.B. testified that while Defendant lived in a house on La Neuville Road, he would enter the bedroom where P.B. slept and rub her vagina. P.B. was eight or nine years old at the time, and Defendant's daughter was in bed with her. P.B. further testified that Defendant would enter the bedroom, kneel over her, "have his hands on it, in my vagina," masturbate to orgasm, "leave it on me," wipe her with her own underwear, then leave the room. P.B. was also eight or nine years old when this occurred. P.B. stated that Defendant's wife was across the hall during these events and that her bedroom door was open. P.B. also testified that Defendant began rubbing his penis on her while he masturbated and "would insert it enough" and then ejaculate on her. She was then asked, "Did he actually insert his penis fully into you," and she responded, "Not full. I was a kid. But it was in." P.B. further stated that she would hit Defendant and that he would go away, but this was usually after he had already "finished." P.B. testified that Defendant did this more than twenty times. P. B. further testified that on many occasions, Defendant partially inserted his penis into her vagina. P.B. indicated that she experienced pain during these events and that she would cry and say stop. However, she did not scream at the top of her lungs. P.B. testified that Defendant subsequently began to fondle her and masturbate while they watched television.
P.B. stated that she was ten or eleven years old when she refused to go to Defendant's home. When she was approximately fifteen or sixteen, she told her mother what Defendant had done to her. P.B. testified that her mother informed her that she had reported the events to the police and nothing could be done because too much time had passed. P.B. testified that she told her aunt, P.H., about these events the night of her senior prom and that P.H. told her she was lying.
In 2006, P.B. went to her mother's home to see her cousin C.H.'s baby. P.B. testified that when she saw C.H., she "saw her eyes, and I knew." D.H. also came over during P.B.'s visit, and D.H. had the same look. P.B. testified that she went home and prayed and decided to go to the police. Before going to the police, P.B. called C.H. and asked if Defendant had done anything to her. P.B. testified that C.H. cried and said yes. P.B. then informed C.H. that she was going to the police, and C.H. told her not to.
C.A., P.B.'s mother, testified that when P.B. was a child she spent the night with Defendant and his wife on a regular basis. C.A. further testified that when P.B. was eight or nine years old she started seeing a tremendous change in P.B. P.B. went from being a real sweet person to a "very rebellious, angry, mean little girl." When C.A. would mention Defendant and his wife, P.B. would get angry. P.B. did not stay overnight at Defendant's home after that.
C.A. further testified that when she told P.B. they would be attending a family function, P.B. did not want to go. At age sixteen, P.B. told C.A. that Defendant molested her. Also, when P.B. got married at age seventeen, she did not want Defendant to attend the ceremony. C.A. testified that after P.B. told her she was molested, C.A. told her mother and Defendant's wife. C.A. stated that she was told she was a troublemaker and a liar and had better keep this information to herself. C.A. testified that she spoke to the police, who told her it would be P.B.'s word against that of Defendant. C.A. said she did not pursue the matter because she thought it would cause embarrassment for P.B., who was getting married at that time. C.A. spoke to the police again in July of2006, after P.B. reported the events to police.
C.H., who was born on November 3, 1980, testified that Defendant was her uncle. C.H. testified that during the summer of 2006, P.B. contacted her at work and told her that she was at the police department giving a statement. C.H. testified that P.B. saw her baby after P.B. gave a statement to police. C.H. also testified that P.B. saw her baby the day before P.B. gave her statement to police. However, the two did not speak to each other at that time. C.H. subsequently told P.B. that she had been molested but did not provide P.B. with any details regarding the molestation. C.H. then met with police.
C.H. testified that when she was nine or ten years old, she was on a four-wheeler with Defendant, who rode behind her. During the four-wheeler ride, Defendant massaged her vagina and thrust his penis on her back. C.H. immediately asked Defendant to stop the four-wheeler so she could go to the restroom. During the same weekend, C.H. and a cousin were lying on the floor in Defendant's living room when Defendant rubbed her vagina under her nightgown. C.H. testified that she told Defendant to stop and that she would tell someone. Defendant then told C.H. if she ever told anyone, he would "stick his dick in [her] mouth to keep [her] quiet." C.H. testified that when she was twelve, she told her friend what had occurred. The friend's parents reported the events to C.H.'s parents. C.H.'s parents then questioned her about the events and called the police. C.H. testified that she told her parents she did not want to pursue charges.
A.S. testified that C.H. worked with her and that C.H. was not a very honest person.
D.H., who was born on May 13, 1984, testified that Defendant was her uncle. D.H. testified that when she was seven or eight years old, Defendant put his hand under her skirt and his fingers inside her underwear. D.H. further testified that "whenever it got to the fold of my butt cheek, I pulled away." On another occasion, Defendant rubbed her chest over her shirt. D.H. reported these events to police in 2006, after P.B. and C.H. made reports to police.
D.S. testified that Defendant was her uncle and that he had never done anything inappropriate to her. D.S. was born on November 10, 1973. She testified that between 1978 and 1988, she visited Defendant's residence, but did not recall being left alone with him.
P.H., Defendant's wife, testified that P.B. was her niece and godchild. In 1966, Defendant joined the Navy and went to basic training in California and was later stationed in Florida and Virginia. During most of that time, P.H. lived with Defendant's mother. Defendant left the Navy in August or September of 1968, and the two subsequently rented a house in Broussard. At that time, P.B. was six years old. P.H. and Defendant lived in that house until some time in 1969.
P.H. testified that while they lived in Broussard, the bedroom doors were open when they slept and while P.B. slept in the room with P.H.'s daughter. P.H. further testified that she never noticed any blood or semen while washing P.B.'s clothes. Additionally, she never heard P.B. cry during the night.
P.H. and Defendant later rented a house on La Neuville Road. She did not notice any blood or semen or hear cries from P.B. at that residence. P.H. and Defendant lived in that residence for one year and then moved into the home of Defendant's grandmother while they built a home. The new home was located on Bonin Road and construction began on October 5, 1970. P.B. spent the night more often after the home was built. P.H. did not notice anything unusual at the home on Bonin Road when she bathed P.B. and washed her clothes.
P.H. further testified that P.B. stopped spending the night at her home once P.B. became a teenager. According to P.H., P.B. did not become rebellious and did not show any anger toward Defendant. P.H. further testified that C.H. and D.H. would spend time at her home and played with her granddaughter, A.C. P.H. did not notice a change in Defendant's relationships with C.H. and D.H. P.H. indicated that she first heard the allegations regarding P.B., C.H., and D.H. when Defendant was arrested.
Donald Arcenaux was employed by the Lafayette Parish Sheriff's Office on October 23, 1993. On that date, he was called in reference to a complaint regarding indecent behavior with a juvenile. The victim of that offense was C.H. The following day, C.H. recanted her statement.
Bobby Ayo testified that Defendant had an outstanding reputation in the community. However, Ayo did not know Defendant from 1968 to 1972. Additionally, he never asked Defendant about having sex with girls.
Debra Guillot helped P.H. make jewelry for C.H.'s wedding. Debra testified that neither D.H. nor C.H. were apprehensive in Defendant's presence. However, Debra admitted she did not know D.H. and C.H. when they were children.
S.B. testified that she spent the night with Defendant's daughter before she was twelve years old and that Defendant did not do anything inappropriate to her. S.B. was born in 1969.
A.C., Defendant's granddaughter, testified that she lived with Defendant when she was a child and moved out when she was ten or eleven years old. A.C. further testified that Defendant never did anything inappropriate to her. A.C. stated that she played with C.H. and D.H. and that they never told her that Defendant did anything inappropriate and that they did not appear to be afraid of him. A.C. testified that she never told the father of her child that Defendant did anything inappropriate to her. She admitted that she was not alive during the years P.B. alleged she was raped by Defendant.
Defendant testified that he joined the Navy in 1965. He subsequently married P.H. on May 14, 1966. P.B. was four years old at that time. Thereafter, he began active duty in the fall in Mayport Beach, Florida. During periods of leave, he returned to Louisiana. His tour of active duty ended in September 1968. When he left the Navy, Defendant and P.H. rented a house in Broussard. Defendant denied all claims regarding acts that were alleged to have occurred during the time he lived in Broussard. Defendant also denied touching P.B. inappropriately at the home on Bonin Road. Defendant further denied any inappropriate contact with C.H. and D.H.
E.B. testified that he had a child with A.C. and that the two were together for two-and-a-half years. E.B. testified that A.C. cried and told him that Defendant touched her while they were riding a four-wheeler and that Defendant started coming into her bedroom. E.B. indicated that this conversation occurred in late 2005 or early 2006. E.B. testified that he did not like Defendant's wife because she claimed that he punched her in the jaw. E.B. pled no contest to a charge regarding this event and was on probation at the time he testified.
At trial, there was testimony regarding P.B.'s mother, C.A., being disinherited by her mother. Additionally, there was testimony that P.B., C.H., and D.H. continued to associate with Defendant after the alleged acts of rape and molestation. Furthermore, there was testimony regarding an altercation between Defendant and the father of C.H. and D.H.
In brief to this court, Defendant asserts that a sufficiency review is warranted because the State did not establish when the offense occurred. Defendant further asserts that a six-year time span is insufficient as a matter of due process to put him on adequate notice to prepare a defense. Further, such a lengthy period of time does not establish with certainty the time at which the offense occurred. Additionally, Defendant asserts that P.B. was not able to establish if and when penetration actually occurred. Defendant then asserts that even if this court believes "something" happened, there is insufficient proof to establish that the "something" was rape.
The date of the offense is not an essential element of the crime of aggravated rape. State v. D.T., 08-814, p. 23 (La.App. 3 Cir. 12/11/08), 998 So. 2d 1258, 1274. Thus, the State was not required to prove the date on which Defendant raped P.B.
P.B. testified that Defendant "would insert it enough" and then ejaculate on her. She was asked, "Did he actually insert his penis fully into you," and she responded, "Not full. I was a kid. But it was in." P. B. also testified that on many occasions, Defendant partially inserted his penis into her vagina.
In State v. Waguespack, 06-410, p. 2 (La.App. 3 Cir. 9/27/06), 939 So. 2d 636, 638, this court stated, "In State v. Ross, 03-564, p. 11 (La.App. 3 Cir. 12/17/03), 861 So. 2d 888, 895, writ denied, 04-0376 (La. 6/25/04), 876 So. 2d 829, we defined sexual penetration as, `[a]ny penetration, however slight, of the aperture of the female genitalia, even its external features, is sufficient.'" Thus, we find that P.B.'s testimony supports the element of penetration required to prove that a rape occurred. Furthermore, "[a] rape victim's testimony alone is sufficient to establish the fact of penetration. State v. Mitchell, 453 So. 2d 1260 (La.App. 3 Cir.), writ denied, 457 So. 2d 16 (La.1984)." State v. H.J.L., 08-823, p. 5 (La.App. 3 Cir. 12/10/08), 999 So. 2d 338, 342.
Based on the jury's verdict, we find that the jury chose to believe the testimony of P.B. That credibility determination should not be second-guessed by this court. State v. Marshall, 04-3139 (La. 11/29/06), 943 So. 2d 362, cert. denied, ___ U.S. ___, 128 S. Ct. 239 (2007). This assignment of error lacks merit.
Due Process and Time Limitation
In his first assignment of error, Defendant contends that the due process clauses of the United State's Constitution and the Louisiana Constitution require that this prosecution be dismissed.
Defendant filed a Motion to Quash on February 16, 2007. In the motion and memorandum in support thereof, Defendant asserted that the indictment should be quashed because the time limitation for the institution of prosecution had expired and the amount of time that had "passed since the charged offense was alleged to have occurred has caused and will cause substantial prejudice" to his defense. The trial court denied the motion.
In brief to this court, Defendant cites the following portion of Judge Downing's concurrence in part, dissent in part, in State v. Smith, 01-1027, p. 1 (La.App. 1 Cir. 2/15/05), 809 So.2d 566-67 (citation omitted):
Where there is no corroborating evidence of a crime, a passage of time of such length that an accused is prevented from preparing a defense should be sufficient grounds to hold that due process is violated. Who among us can account for what they did on an unspecified day in November 1976? When someone truly believes a memory that is false there is no way for a trier of fact to distinguish the truth by the demeanor of the witness. How can we know if a memory is true? . . . .
During the 1980's criminal prosecutions based on "repressed memories" sent many an innocent person to jail for crimes alleged to have been committed decades before the victim "remembered" the abuse.
Defendant then asserts that this prosecution must be dismissed since a forty-year delay in bringing the charges is too long and is a due process violation. He further asserts he was denied a fair trial. Defendant contends that he was forced to defend his actions during a six-year period forty years ago, which was virtually impossible and that this prejudice alone should be considered a violation of substantive due process sufficient to reverse his conviction. Defendant then discusses Smith, 809 So. 2d 556, which he alleges involved a delay half as long as the delay in the case at bar. Defendant then argues that the forty-year delay in the case at bar should be presumed prejudicial. Defendant further argues that he has been prejudiced by the use of other crimes evidence admitted pursuant to La.Code Evid. art. 412.2, because that article did not exist until recently.
Defendant next discusses State v. Gray, 917 S.W.2d 668 (Tenn.1996), a Tennessee case involving a prosecutorial delay from 1950 to 1992. The Tennessee Supreme Court reversed the defendant's conviction citing the defendant's Fifth Amendment right to due process. Defendant goes on to argue that the prejudice in the case at bar is greater than that in Gray.
Defendant also asserts that P.B.'s memory has been diminished, as she was unable to distinguish between the alleged rape and touching. Furthermore, he alleges that a review of testimony of all of the witnesses will reveal sufficient incidences of failure to recall due to the passage of time. Defendant goes on to assert that this court "should draw a bright line rule prohibiting prosecutions for offenses such as these without both corroboration and contemporaneous report to the authorities."
Defendant further asserts the time limitation for bringing the prosecution has passed. In support of this argument, Defendant asserts that because the death penalty could no longer be applied in the case at bar, the case was no longer capital and the unlimited time limits for prosecution under La.Code Crim.P. art. 571 do not apply. Thus, La.Code Crim.P. art. 572 would mandate that this case be dismissed, as the six-year time limitation for prosecution has run.
The State contends that Defendant was charged within the prosecutorial time limits. The State asserts that although imposition of the death penalty for aggravated rape was declared unconstitutional, La.Code Crim.P. art. 571 was still applicable and that there was no prescriptive period for filing of the aggravated rape charge in the case at bar. The State maintains this issue was considered in Smith, 809 So. 2d 556. The State further asserts there is no evidence that the delay in the filing of the indictment in the case at bar was purposeful on its part.
We first address Defendant's claim that the time for instituting prosecution in the case at bar had run. At the time of the offense, aggravated rape was punishable by death, and La.Code Crim.P. art. 571 provided: "There is no time limitation upon the institution of prosecution for any crime for which the death penalty may be imposed." Additionally, prior to 1984, La.Code Crim.P. art. 572 provided that:
No person shall be prosecuted, tried, or punished for an offense not punishable by death unless the prosecution is instituted within the following periods of time after the offense has been committed:
(1) Six years, for a felony necessarily punishable by imprisonment at hard labor . . . .
Noting that La.R.S. 14:42 was amended by Acts No. 343, § 1, effective September 9, 1977, to provide a penalty of life imprisonment without the benefit of parole, this court discussed the application of capital protections in State v. Breaux, 08-1061, pp. 2-5 (La.App. 3 Cir. 4/1/09), ___ So.3d ___, as follows (alterations in original) (footnote omitted):
Between 1950 and September 8, 1977, the penalty for a violation of La.R.S. 14:42 was death. Most of the alleged violations by Defendant occurred during this period.
In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972), the United States Supreme Court reviewed a murder and two rape cases and held the imposition and carrying out of the death penalty in those three cases constituted cruel and unusual punishment in violation of the eighth and fourteenth amendments.
Thereafter, in State v. Selman, 300 So. 2d 467 (La.1974), the Louisiana Supreme Court considered the question of whether amendments to La.Code Crim.P. arts. 814 and 817 relative to qualifying verdicts, made by the legislature after Furman was decided, removed the infirmities in our law which precluded the imposition of the death penalty for aggravated rape in Louisiana since Furman. After discussing the nature of the crime of aggravated rape in light of the eighth and fourteenth amendments of the United States Constitution and with an eye to the infirmities that caused the reversal of the convictions in Furman, we concluded "that the death penalty for aggravated rape is not per se cruel and unusual punishment." Id. at 472.
However, in Selman v. Louisiana, 428 U.S. 906, 96 S. Ct. 3214 (1976), the United States Supreme Court disagreed with the Louisiana Supreme Court and held that the imposition and carrying out of the death penalty for an aggravated rape conviction in Louisiana constituted cruel and unusual punishment.
Consequently, at the time Defendant allegedly committed most of the offensive acts at issue herein, the penalty for these offenses was death (although that penalty could not be carried out at the time of trial). Thus, the question arises as to whether the procedural rules applicable to the prosecution of capital offenses should have been applied in Defendant's case.
In State v. Rich, 368 So. 2d 1083 (La.1979), the defendant was convicted of aggravated rape which occurred in August 1977. At that time, aggravated rape was a capital crime in Louisiana, but imposition of the death penalty was not legally available in Louisiana. The trial court had refused to sequester the jury, despite the defendant's request that it be done, and had instructed the jury that ten jurors, rather than twelve, needed to concur in order to reach a verdict. On review, the supreme court recognized as an error patent the trial judge's failure to procedurally treat the case as less than that of a capital offense. Accordingly, Rich's conviction and sentence were reversed, and the matter was remanded for a new trial.
However, in State v. Carter, 362 So. 2d 510 (La.1978), the supreme court held differently. The court addressed the issue of misjoinder of aggravated rape (a capital offense at the time of commission of the offenses) with aggravated crime against nature and aggravated burglary (both punishable by confinement necessarily at hard labor) because the modes of trial differed and held there was not a misjoinder, explaining, in pertinent part:
The mode of trial is determined by the possible penalty. La. Const. art. 1, § 17: State v. McZeal [, on rehearing, 352 So. 2d 592 (La.1977) ], supra. Whereas aggravated rape, prior to the effective date of Act 343 of 1977, as a capital offense, was triable before a jury of twelve persons, all of whom must concur to render a verdict, the offense is now punishable by confinement necessarily at hard labor and is therefore triable before a jury of twelve persons, ten of whom must concur to render a verdict. Hence, the mode of trial for aggravated rape was changed as a result of the amendment to its penalty provision. Moreover, this change is procedural in nature. State v. McZeal, supra; State v. Holmes, 263 La. 685, 269 So. 2d 207 (1972). A procedural change which does not affect an accused's substantive rights in the prosecution of a criminal offense is applicable to the trial of the offense after the effective date of the change even though the particular offense was committed prior to that date.
Id. at 513 (emphasis added) (footnote omitted).
In State v. Williams, 372 So. 2d 559 (La.1979), the supreme court discussed the split in the court in the holdings of Rich and Carter and held:
The writ is denied. On reconsideration of the common problem in State of Louisiana v. Dave Carter, 362 So. 2d 510 (La.1978) and State of La. v. Rich, 368 So. 2d 1083, 1979[sic], a majority of the court has decided that the better treatment is found in State v. Rich. The unanimous verdict, the sequestration of the jury and other safeguards erected by statute for capital cases are too important to permit them to be retroactively erased. Therefore, the jury in an aggravated rape case, when the rape occurred prior to September 9, 1977, the effective date of Act 343 of 1977, should return a unanimous verdict.
Id. at 560 (emphasis added).
In State v. Goodley, 398 So. 2d 1068 (La.1981), the defendant was charged with first degree murder. The jury returned a responsive verdict of manslaughter, with ten of the twelve jurors concurring in the verdict. On error patent review, the supreme court reviewed whether or not the non-unanimous verdict was valid and held in pertinent part:
The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which must concur to render a verdict....
Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.
....
[W]e find that a unanimous jury is required in a case where the defendant is being prosecuted under an unamended charge of first degree murder, a capital offense, to render any verdict, notwithstanding the fact that the state may have stipulated that it would not seek the death penalty.
Id. at 1070-71 (emphasis added) (footnote omitted). In footnote four of the opinion, the court stated:
This Court considered a similar issue in State v. Jones, 385 So. 2d 786 (La.1980)[,] and in a brief per curiam writ grant in response to a pre-trial writ application recited that the "(c)rime of aggravated kidnapping is not capital, nor is it capital for procedural purposes." However, Jones is distinguishable from the case under consideration because Jones involved a situation where the death penalty provision had been declared unconstitutional, whereas here the death penalty provision is valid and enforceable, making first degree murder "a criminal case in which the punishment may be capital."
Id. at 1071.
In State v. Self, 98-39 (La.App. 3 Cir. 8/19/98), 719 So. 2d 100, writ denied, 98-2454 (La.1/8/99), 734 So. 2d 1229, this court referred to Jones. In Self, the defendant was charged with committing aggravated rape of a child under the age of twelve between June 1995 and March 1996. At that time, the Legislature had again amended La.R.S. 14:42 to provide the penalty was death, but the state waived the option of pursuing the death penalty. On appeal, this court addressed whether the trial court erred in instructing the jury that they were required to reach a verdict of ten out of twelve rather than a unanimous verdict as required for capital cases under La.Code Crim.P. art. 782 and whether the trial court erred in accepting the jury's non-unanimous verdict of eleven to one. Citing Goodley, this court held that because the death penalty was applicable at the time the defendant committed the act, the capital procedural rule of a unanimous jury applied. We further noted that the court in Goodley distinguished Jones based on the fact that Jones dealt with an offense wherein the death penalty had been declared unconstitutional.
In State v. Schrader, 518 So. 2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S. Ct. 265 (1990), the supreme court appeared to back away from footnote number four in Goodley which distinguished Jones. In Schrader, the defendant was charged with first degree murder, and the jury returned a responsive verdict of manslaughter. On error patent review, it was discovered that the jury had not been sequestered even though the charge was classified as a capital offense. The court stated, in pertinent part:
We now hold, despite its long lineage, the jurisprudential presumption of prejudice for "capital cases" does not apply to a "capital case" where the defendant never faced the prospect of the death penalty and where counsel failed to press the point in the trial court, or object to the lack of sequestration. In the absence of actual prejudice, this right to sequestration is waived.
....
In the present case the defendant did not object to the lack of sequestration. Moreover, the potential impact on the fairness of the proceedings was no greater than for non-capital cases. It is true that the case remained "capital" under the procedural classification of our statutes; however, it was in fact not capital in the sense of the cases such as Parker and Luquette wherein this court presumed prejudice. That is, the defendant did not face the death penalty, nor did the jury face the heightened pressure inherent in having to consider the death penalty. Accordingly, the failure to sequester the jury in this case was not reversible error.
Id. at 1037-38.
In State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756 So. 2d 366, writ denied, 00-208 (La.8/31/00), 766 So. 2d 1274, the defendant was charged with having committed aggravated rape of a victim under the age of twelve in 1996. On error patent review, this court addressed the issue of whether the jurors were sequestered from the moment they were sworn, as required by La.Code Crim.P. art. 791(B) in capital cases. This court explained, in pertinent part:
Although the State did not seek the death penalty, the case retained its capital classification for procedural purposes. State v. Schrader, 518 So. 2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S. Ct. 265, 112 L. Ed. 2d 221 (1990). The charge, aggravated rape of a child under twelve, is punishable by death or life imprisonment. The record does not tell us why the State chose not to seek the death penalty. It is possible that the State or the trial court was under the belief that the death penalty had been declared unconstitutional.
....
The present case is distinguishable from Schrader because the death penalty in the present case was ruled unconstitutional by district courts rather than by the United States Supreme Court. Additionally, the State's reason for not seeking the death penalty is unclear. Nevertheless, because the Defendant was not exposed to the death penalty, did not object to the lack of sequestration, and does not allege on appeal that he was prejudiced by the lack of sequestration, we find that the lack of sequestration (if the jury was in fact not sequestered) was harmless error.
Id. at 368-69.
Additionally, in State v. Smith, 01-1027 (La.App. 1 Cir. 2/15/02), 809 So. 2d 556, the defendant was charged with having committed aggravated rape of a juvenile under the age of twelve in November 1976. In his writ application, the defendant argued that the trial court erred in denying his motion to quash indictment because the statute of limitations had run. More specifically, he argued that "because the death penalty for the aggravated rape statute in effect on the date of the offense had been declared unconstitutional, the offense was not a capital offense and, thus, the unlimited prescriptive period of La.Code Crim.P. art. 571 for instituting prosecution in capital cases did not apply." Id. at 561. On writ of review, the appellate court held in pertinent part:
[A]lthough the death penalty may not be imposed in the instant case, article 571 still applies and there is no prescriptive period for the aggravated rape charge. Because the unlimited prescriptive period for capital cases applies, the court did not err when it denied the "motion to quash indictment because of running of statute of limitations."
Id. at 562.
In light of the foregoing, we conclude that the procedural rules for capital cases, such as unanimous jury and sequestration of the jury, should have been applied in this case.
Based on Breaux, we find that the case at bar is a capital case and that no prescriptive period applies to the aggravated rape charge at issue.
We now address the Defendant's claim that the prosecution should be dismissed because of a due process violation.
In Smith, 809 So. 2d 556, the court discussed preindictment and prearrest delays as follows:
Constitutional guarantees to a speedy trial are not invoked until a citizen becomes an accused, either by arrest or indictment. United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L. Ed. 2d 468 (1971); State v. Schrader, 518 So. 2d 1024, 1028 (La.1988). For preaccusation delay, due process is the standard. The proper approach in determining whether the accused has been denied due process of law through preindictment or prearrest delay is to measure the government's justifications for the delay against the degree of prejudice suffered by the accused. Schrader, 518 So.2d at 1028 (quoting State v. Malvo, 357 So. 2d 1084, 1087 (La.1978)).
The U.S. Supreme Court distinguishes between "tactical" delay and "investigative" delay. To show a violation of due process from preindictment tactical delay, a defendant must show that the government deliberately delayed bringing the indictment in order to gain a tactical advantage and that the delay caused the defendant actual and substantial prejudice in presenting his defense. State v. Dickerson, 529 So. 2d 434, 439 (La.App. 1st Cir.), writ denied, 533 So. 2d 353 (La.1988). See also United States v. Lovasco, 431 U.S. 783, 795 n. 17, 97 S. Ct. 2044, 2051 n. 17, 52 L. Ed. 2d 752 (1977); Marion, 404 U.S. at 324, 92 S.Ct. at 465; State v. Hughes, 94-1364, p. 6 (La.App. 4th Cir.12/28/94), 648 So. 2d 490, 493, writ denied, 95-0255 (La.3/24/95), 651 So. 2d 292. In Lovasco, the U.S. Supreme Court held "that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." 431 U.S. at 796, 97 S.Ct. at 2051-52.
To prove prejudice resulting from tactical delay, the defendant's showing must be concrete, not speculative. Vague and conclusory allegations of prejudice resulting from the passage of time and the absence of witnesses are insufficient to constitute a showing of actual prejudice. See Dickerson, 529 So.2d at 439-40 (quoting United States v. Antonino, 830 F.2d 798, 805 (7th Cir.1987)). In Dickerson, this court placed on the defendant the burden of establishing the government deliberately delayed bringing the indictment in order to gain a tactical advantage. In Schrader, the Louisiana Supreme Court, in balancing the reasons for the delay with the resulting prejudice, noted that the state had offered no evidence regarding the reasons for the delay. 518 So.2d at 1028. Such a comment appears to require the state, not the defense, to show the reasons for the delay. Even if the state has an obligation to present its reasons for the delay, the defense has the ultimate burden of proving bad faith on the part of the state.
In Schrader, there was an almost 15-year delay between the offense (a murder resulting from arson) and the indictment. The court found no prejudice resulting from the defendant's inability to examine the site as it existed after the fire. The court explained that the defendant was able to present testimony from both of the men who originally investigated the blaze. The court also noted that witnesses who had heard the defendant's threat to burn down the house did not tell the authorities about those threats until after the defendant's arrest.
In the instant case, the offense allegedly occurred in November of 1976, and the indictment was issued in September of 1996. The reason for the state's almost twenty-year delay in filing the indictment is not evident from the record, and it is not clear when the authorities became aware of the alleged rape. The victim's medical records (filed under seal) indicate that, before the rape was reported to the authorities, the victim had told her mother and two friends about the rape. In 1996, the victim was "confronted" about the rape after defendant was arrested for or suspected of molesting his daughter.
Relator made no attempt to introduce any evidence at the hearing or offer any factual allegations about how he has been actually prejudiced by the delay. His allegations in the writ application speculate that he "may not have any significant memory of that period of his life," that he "may not remember who would or would not be a good witness on his behalf," that the "[victim] has almost no memory of the events," and that his attorney would not be able to test the victim's memory as to the surrounding events, such as clothing worn, time of day, exact location, presence of others, health or emotional problems, medication, weather, and other facts relator thinks will impact on the victim's credibility.
There is no indication that any of relator's concerns have materialized. Relator does not allege specific, actual prejudice, but merely alleges general prejudice in preparation of the defense. General allegations of prejudice in the preparation of the defense and allegations of "potential" prejudice are insufficient to support a due process violation based on preaccusation delay. See Marion, 92 S.Ct. at 466; Hughes, 94-1364 at p. 6, 648 So.2d at 493. Thus, regardless of the state's reasons for delaying the institution of prosecution in this case, relator has failed to meet his burden of establishing prejudice from the delay.
Id. at 559-61.
Defendant relies on Gray, 917 S.W.2d 668, to support his claim that the prosecution should be dismissed. In Gray, the Tennessee Supreme Court set out the following factual information:
In the case before the Court, Perdue has accused Gray of sexually penetrating her when she was eight years old in early 1950. She testified that for more than forty years-until March 26, 1992-she kept her silence about the incident. There is no evidence in the record that Gray tried to conceal his alleged conduct or that he threatened the victim in any way. Perdue testified that she had been "bothered" by her memory of the incident throughout her childhood and adult life. Finally, the record shows that she continued to interact with the defendant through the years. Under these facts, the trial court correctly held that forty-two years "is much too long to wait before prosecuting an alleged offense where the prosecutor [victim] is of legal age for the great majority of this time.... "
In Gray, the Tennessee Supreme Court noted that its reasoning was "consistent with the legislature's intent because it has since amended the statute of limitations in child sex abuse cases so that prosecution must be initiated within four years or no later than the date the child reaches majority, whichever occurs later. Tenn.Code Ann. § 40-2-101(d) (1990)." Id. at 671-72.
The court then discussed the standard applicable to pre-accusatorial delays as follows:
Having reviewed the existing law on the issue, we observe that the Marion-Dykes approach to pre-accusatorial delay is, in application, extremely one-sided.[4] It places a daunting, almost insurmountable, burden on the accused by requiring a demonstration not only that the delay has caused prejudice but also that the State orchestrated the delay in order to obtain a tactical advantage. Thus, under the facts before us, application of so stringent a standard would force a result we would consider unconstitutional, unwarranted, and unfair. To accomplish justice while preserving Gray's right to a fair trial requires, in our view, a less stringent standard.
Today we articulate a standard by which to evaluate preaccusatorial delay and hold that an untimely prosecution may be subject to dismissal upon Fifth and Fourteenth Amendment due process grounds and under Article I, §§ 8 and 9, of the Tennessee Constitution even though in the interim the defendant was neither formally accused, restrained, nor incarcerated for the offense. In determining whether preaccusatorial delay violates due process, the trial court must consider the length of the delay, the reason for the delay, and the degree of prejudice, if any, to the accused. See Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-49 ("proof of prejudice is generally a necessary but not sufficient element of a due process claim, ... the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused").
We now apply the standard we have articulated to the facts and circumstances here present to determine whether the prosecution of Gray shall proceed. We hold that it shall not. We find that the length of the delay was profoundly excessive, and no reasonable justification for such delay has been demonstrated. Gray has made a prima facie showing of prejudice. As the trial court correctly found, the record reveals at least three instances of prejudice: (1) the lapse of time has diminished the victim's memory; (2) witnesses thought to be material are now unavailable; and (3) the victim cannot specifically date the incident, thereby requiring Gray to account for his whereabouts and his conduct during a six-month period forty-two years past.
As the Supreme Court declared in Morrissey v. Brewer, "due process is flexible and calls for such procedural protections as the particular situation demands." 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); accord State v. Pearson, 858 S.W.2d 879, 885 (Tenn.1993). Finally, under the facts of this case, prosecution of Gray would violate the concepts of fundamental fairness and substantial justice embodied in the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution, as well as Article I, § 8, of the Tennessee Constitution.
Accordingly, the judgment of the Court of Criminal Appeals is reversed; the trial court's order dismissing the indictment is reinstated.
Id. at 673-74 (footnote omitted).
The court in Gray, 917 S.W.2d 668, however, adopted a standard that has not been adopted in Louisiana, as evidenced by the first circuit's decision in Smith, 809 So. 2d 556. Further, in State v. Utley, 956 S.W.2d 489 (Tenn.1997), the Tennessee Supreme Court limited the holding in Gray, 917 S.W.2d 668, to the unique facts of that case. Further, Gray is distinguishable. In footnote three of that opinion, the court noted that in Tennessee, legislation requires that prosecution of child sex abuse cases must be instituted within four years or no later than the date the child reaches the age of majority, whichever occurs later.
The Louisiana legislature has chosen to provide more protection to the child victims of sex offenses. For example, La.Code Crim.P. art. 571 provides no time limit for the institution of prosecution for cases involving the offenses of aggravated rape, which is punishable by life imprisonment, and forcible rape. Additionally, La.Code Crim.P. art. 571.1 provides:
Except as provided by Article 572 of this Chapter, the time within which to institute prosecution of the following sex offenses: sexual battery (R.S. 14:43.1), second degree sexual battery (R.S. 14:43.2), oral sexual battery (R.S. 14:43.3), felony carnal knowledge of a juvenile (R.S. 14:80), indecent behavior with juveniles (R.S. 14:81), molestation of a juvenile (R.S. 14:81.2), crime against nature (R.S. 14:89), aggravated crime against nature (R.S. 14:89.1), incest (R.S. 14:78), or aggravated incest (R.S. 14:78.1) which involves a victim under seventeen years of age, regardless of whether the crime involves force, serious physical injury, death, or is punishable by imprisonment at hard labor shall be thirty years. This thirty-year period begins to run when the victim attains the age of eighteen.
Defendant alleges that because of the passage of time, P.B. could not distinguish between the alleged rape and touching and witnesses failed to recall due to the passage of time. Defendant does not specifically assert what the other witnesses failed to recall but merely makes a conclusory allegation.
We find that P.B. did not have problems recalling the inappropriate acts committed by Defendant. However, she did not recall the dates on which these acts occurred. We further find that Defendant cannot prove he was prejudiced by the delay in this case. Alleging that other crimes evidence would not have been allowed pursuant to La.Code Evid. art. 412.2 is not sufficient, as the evidence may have been admissible under La.Code Evid. art. 404(B).
Based on the first circuit's decision in Smith, we find that Defendant was not prejudiced by the delay. Therefore, the prosecution in the case at bar should not be dismissed.
Defendant also asks this court to assume prejudice because of the forty-year delay. This has never been the law. and we decline to adopt such a rule. See U.S. v. Beszborn, 21 F.3d 62 (5th Cir. 1994), cert. denied sub nom. Westmoreland v. U.S., 513 U.S. 934, 115 S. Ct. 330 (1994). Defendant further asks this court to issue a bright-line rule that prohibits prosecutions for "offenses such as these" without both corroboration and contemporaneous report to the authorities. We also decline to adopt such a bright-line rule based on the provisions of La.Code Crim.P. arts. 571 and 571.1.
For the reasons set forth herein, this assignment of error lacks merit.
Other Crimes Evidence
In his second assignment of error, Defendant contends that La.Code Evid. art. 412.2 is unconstitutional as applied and the trial court erred in allowing the introduction of other crimes evidence.
The State filed a "Notice of Intent to Introduce Evidence of Other Crimes" on March 18, 2008. Therein, the State gave notice of its intent to introduce evidence of the Defendant's conduct with C.H. and D.H. under La.Code Evid. arts. 404(B) and 412.2.
Defendant filed a "Motion to Declare Louisiana Code of Evidence Article 412.2 Unconstitutional" on July 14, 2008. Therein, Defendant asserted that Article 412.2 was vague because it allowed for the admission of another crime, wrong, or act involving sexually assaultive behavior and acts which indicate a lustful disposition toward children, but failed to set forth any guidelines as to what constitutes sexually assaultive behavior and does not provide any safeguards to define or limit acts which indicate a lustful disposition toward children. Defendant also asserted he was denied equal protection because Article 412.2 singled out one class of criminal prosecutions, sex offenses, from all other prosecutions in that other crimes evidence is admissible in sex offense cases for its bearing on any matter to which it is relevant and is admissible in non-sex offense cases as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In addition, Defendant asserted that Article 412.2 denied him a fair trial by depriving him of his right to be presumed innocent until proven guilty. He also asserted that the article denied him the right to a fair trial, to present a defense, to full confrontation and cross-examination, and to effective assistance of counsel because the article merely requires the State to provide notice of the nature of any such evidence. Defendant further asserted that to the extent Article 412.2 was interpreted differently than La.Code Evid. art. 404(B), Article 412.2 denied him the right to a fair trial, to effective assistance of counsel, and due process. Specifically, if it was determined that he was not entitled to a pre-trial hearing and determination of admissibility, he would be effectively denied any of the safeguards recognized by the Louisiana Supreme Court for the introduction of other crimes evidence as set out in State v. Prieur, 277 So. 2d 126 (La.1973). Further, Article 412.2 allows the admission of evidence of acts which indicate a lustful disposition toward children without requiring the State to provide meaningful notice at a pre-trial hearing of what it intends to offer to show a lustful disposition. Defendant further asserted that he would be denied a fair trial and due process if evidence of lustful disposition was admitted when he was charged with aggravated rape. In support of this argument, Defendant cited State v. Kennedy, 00-1554 (La. 4/3/01), 803 So. 2d 916, superseded by statute as stated in State v. Zornes, 34,070 (La.App. 2 Cir. 4/3/02), 814 So. 2d 113, writ denied, 02-1280 (La. 11/27/02), 831 So. 2d 269, wherein he asserts the supreme court stated that evidence of other crimes was inadmissible in cases involving general intent crimes like aggravated rape. Lastly, the Defendant asserted that Article 412.2 denied him the right to be free of cruel and unusual punishment.
At a hearing on the motion, the trial court asked defense counsel if he was there to challenge the use of evidence under Article 412.2 without a prior hearing. Defense counsel asserted this was correct and stated the following: "I think, if we have a full-blown hearing on the admissibility of the other-crime evidence sought by the State to be introduced and we can cross examine those witnesses, then probably 412.2 would be constitutional under those circumstances. But, without it, it's not." The following exchange occurred later:
MR. STUTES: are we still going to have Is this motion still viable, or are we still arguing this motion?
THE COURT: Well, he's indicated that, since we're having a hearing, that he is not going to challenge he's only challenging the constitutionality based on our failure to have a hearing. Is that correct, Mr. Guilbeau?
MR. GUILBEAU: If the Court would happen to rule, though, that general-intent crimes can be specific-intent crimes can be used to introduce against as other-crime evidence on a general-intent crime, such as aggravated rape, of course, we reserve our right to argue that point.
THE COURT: Okay. Well, let me make sure I understand what you're saying here, because I know that you did bring to my clerk some cases that were decided before 412.2 was enacted, some Fourth Circuit cases that relied on Kennedy. Okay?
But, since that time, 412.2 has been enacted, and, since that time, there have been a number of decisions even some from the Supreme Court which have talked about this type of evidence being admissible both as 404(B) evidence and 412.2 evidence.
MR. STUTES: Correct. Yes.
THE COURT: So those cases MR.
GUILBEAU: I don't think those cases went to the heart of the constitutionality of 412.2, vis-a-vis the fact that this evidence comes in without a hearing.
THE COURT: No. I know that.
MR. GUILBEAU: I think that expo [sic] facto and all those arguments
THE COURT: Okay. Wait. We're past that, though, because we're going to have a hearing. Okay?
But then you just raised another issue that you said that you're going to challenge the constitutionality on. And what I'm telling you is I understand that you have the right to object if I determine it's admissible, but there are some there are have been a number of cases that I think have addressed the issue of 412.2 and 404 (B) that are after the ones that you cited. So. . .
At the hearing, C.H. testified that she was at the home of Defendant, her uncle, in 1989. C.H. was nine or ten years old at that time. C.H. was sitting in front of Defendant on a four-wheeler and he touched her vagina, over her clothing. On another occasion, C.H. was lying on a pallet on the floor of Defendant's home with A.C., when Defendant rubbed her vagina. C.H. testified that after that time, she was never alone when she visited Defendant's home.
D.H. testified that she was the sister of C.H. and that Defendant was her godfather. D.H. testified that when she was seven or eight years old, Defendant put his hand up her skirt and she felt his fingers go inside her panties and that he touched the bottom of her buttocks. Within the same year, Defendant rubbed her chest, over her clothes. She was never alone with Defendant again.
Defendant denied touching C.H. and D.H. and raping P.B.
At the conclusion of the hearing, defense counsel argued that the other crimes occurred over twenty years ago and were not res gestae. Defense counsel argued that Kennedy, 803 So. 2d 916, was still good law and that evidence of specific intent crimes such as molestation of a juvenile were not admissible at the trial for aggravated rape, which is a general intent crime. He also argued that the other crimes at issue in the case at bar were attenuated and would be devastating to his case. He further argued that the evidence was highly prejudicial.
The trial court noted that Kennedy was the genesis of the legislature's enactment of Article 412.2. The trial court then found that the evidence was highly prejudicial, but considered the following factors before finding the evidence was admissible at trial:
Number one, in all of these instances, the approach to the victims is the same. They are relatives. They are brought over or encouraged by their parents to visit with them. They are At least in the case of these two victims, they are approached in a situation where there is no one else there to witness the events that take place.
And the Court finds that that is the type of evidence that is contemplated by 412.2. And, although I admit it is very prejudicial evidence, it is also highly probative in the sense of someone's sexual predisposition toward children. And the Court is finds that it would be admissible under that article.
I also want to point out that, in State Versus Zorn[es], which Let's see. The cite of that is 814.113. This was a Second Circuit case. But it came at a time before 412.2 was actually enacted. In that case, other-crimes evidence of sexual assault against a child was admitted under 404 (B).
And the Court reasoned that, although intent was not an issue in that case and, under State Versus Kennedy, other crimes would not be admitted to prove intent the Court found that, because the defendant alleged that the entire incident was fabricated which, in this case, this defendant has just testified the occurrence of a crime was at issue and the sexual assaultive behavior on the other children was therefore admissible for purposes of showing occurrence of a crime through common design.
And so I feel that, even under 404, under these facts, this case would also these crimes other incidents would also be admissible.
Defense counsel objected to the ruling.
In brief to this court, Defendant asserts the testimony at issue was improperly admitted for the following reasons: 1) the evidence was used to prove he was a "bad man;" 2) use of the evidence denied him a fair trial in light of the forty-year delay in bringing the charge of aggravated rape; 3) the evidence was irrelevant and inadmissible under Kennedy, 803 So. 2d 916; 4) use of the evidence under La.Code Evid. art. 412.2 was an ex post facto "application of a liberalized burden of proof;" and 5) the jury was not instructed as to the burden of proof required to use other crimes evidence.
Defendant asserts that requiring him to defend against the charge of aggravated rape and the other crimes evidence denied him the right to a fair trial by the loss of his right to be presumed innocent. Defendant further asserts that the State wanted to have the evidence at issue categorized as admissible under the lustful disposition language of Article 412.2. However, a statute permitting an act does not make that act constitutional.
Defendant asserts that intent, motive, system, or identity were not at issue and none of the exceptions for the admissibility of other crimes evidence were present. He contends the sole reason for introduction of the evidence at issue was to horrify and enrage the jury and to make the jury believe he was predisposed to commit the offense at issue. Defendant asserts that whether the jury believed P.B. became moot following the testimony of C.H. and D.H.
At the hearing on Defendant's "Motion to Declare Louisiana Code of Evidence Article 412.2 Unconstitutional," defense counsel stated that if a hearing regarding the admissibility of other crimes evidence was held and he was able to cross-examine the witnesses, "then probably 412.2 would be constitutional under those circumstances." He later argued that evidence of specific intent crimes should be inadmissible at a trial for a general intent crime such as aggravated rape. Thus, we find that Defendant waived his argument regarding the constitutionality of Article 412.2 and that the trial court did not rule on the constitutionality of Article 412.2. Thus, that issue is not considered by this court.
Louisiana Code of Evidence Article 412.2 provides, in pertinent part:
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
Louisiana Code of Evidence Article 404(B) provides, in pertinent part:
(1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
In State v. Mayeux, 06-944 (La.App. 3 Cir. 1/10/07), 949 So. 2d 520, the defendant was convicted of forcible rape. The victim was the fourteen-year-old next door neighbor of the defendant and often baby sat for his young children. One night in the summer of 1999, the defendant's daughter, two other girls, and the victim had a sleep-over in the Defendant's camper, which was parked in the yard at his house. During the night, after the girls fell asleep, the defendant entered the camper where the victim was sleeping, held the victim's hands over her head, and had sexual intercourse with her.
On appeal, the defendant argued that the trial court erred when it allowed other crimes evidence to be submitted to the jury. The other crime was a sexual battery committed against the half-sister of the victim of the forcible rape. Testimony indicated the victim of the sexual battery was sleeping in the defendant's living room with another girl and the defendant's daughter when the defendant entered the room, and after turning on the TV and watching it for a while, pulled the covers off the victim and performed oral sex on her.
The defendant argued that this evidence was inadmissible under Article 404(B) and the State argued the evidence was admissible under Article 412.2. This court found the evidence was admissible, stating the following:
In State v. Patterson, 05-560 (La.App. 5 Cir. 1/31/06), 922 So. 2d 1195, the fifth circuit agreed that the use of other crimes evidence under Article 412.2, while prejudicial, was appropriate. In Patterson, the accused was charged with aggravated rape and evidence of a conviction for a simple rape was introduced. The fifth circuit stated:
Turning to the present case, the incident involving T.K. is highly relevant to show the defendant's lustful disposition toward teenage girls. It also shows his propensity to sexually assault teenage girls while armed with a dangerous weapon while they are home with no other adult present. For the same reason that the evidence is probative, the evidence of the prior sexual conduct is prejudicial to defendant. State v. Olivieri, [03-563 (La.App. 5 Cir. 10/28/03),] 860 So.2d [207] at 219. However, as observed by Olivieri, by enacting Article 412.2, the Louisiana Legislature evidently saw a need to lower the obstacles to admitting propensity evidence in sexual assault cases. Id. at 219. Considering the purpose behind Article 412.2, we fail to find that the evidence was so prejudicial so as to warrant its exclusion because there is no indication that the other crimes evidence confused or misled the jury, the evidence was presented in an orderly manner, with evidence of the prior sexual conduct being presented at the end of trial, clearly and succinctly through the testimony of the victim of that offense. Further, the trial court gave a limiting instruction on the other crimes evidence during the final jury charges. Thus, there was little chance the jury could confuse the facts of the two crimes.
Id. at 1204. See also, State v. Zornes, 34,070 (La.App. 2 Cir. 4/3/02), 814 So. 2d 113, writ denied, 02-1280 (La.11/27/02), 831 So. 2d 269, wherein the accused was charged with aggravated rape and evidence of a similar crime was allowed to be introduced to show the occurrence of a crime through a common design. . . .
....
We find the trial court did not abuse its discretion when it permitted the introduction of the evidence of the sexual offense committed against D.S.R. The evidence was relevant to show Defendant's lustful disposition toward young teenage girls. While one incident involved rape and one incident involved oral sexual contact, in both cases, Defendant sought out fourteen-year-old girls, who were guests in his home, late at night after they fell asleep.
Id. at 528-29 (alteration in original).
The other crimes evidence in the case at bar involves the touching of Defendant's nieces while they were at his residence. Further, the offense of aggravated rape was committed against Defendant's niece while she was at his residence. We find that the other crimes evidence is relevant to show Defendant's lustful disposition toward young girls, particularly his nieces. For the same reason that the evidence is probative, the evidence of other sexual offenses is prejudicial. However, the legislature, when enacting Article 412.2, saw a need to lower the obstacles to admission of propensity evidence in sexual assault cases. State v. Olivieri, 03-563, (La.App. 5 Cir. 10/28/03), 860 So. 2d 207. Based on the purpose behind the enactment of Article 412.2, we find that the evidence was not so prejudicial as to warrant exclusion, as there was no indication the other crimes evidence confused or misled the jury, the evidence was presented in an orderly manner, with evidence of the other crimes presented at the end of the State's case. Further, the trial court gave the following limiting instruction regarding other crimes evidence:
Evidence has been presented concerning other offenses which the defendant is alleged to have committed. The State was allowed to introduce this as evidence solely to establish motive, intent, knowledge, identity, and/or lustful disposition toward children. It is to be considered by you only for that purpose. It is not to be considered by you as proof of the character of the defendant in order to show that he acted in conformity therewith.
Remember, the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because of the evidence regarding other alleged offenses.
Thus, there was little chance the jury could confuse the facts of the crimes.
Additionally, in State v. Willis, 05-218, p. 31 (La.App. 3 Cir. 11/2/05), 915 So. 2d 365, 388, writ denied, 06-186 (La. 6/23/06), 930 So. 2d 973, cert. denied, 549 U.S. 1052, 127 S. Ct. 668 (2006), this court stated, "the fact that the prior sex offenses occurred many years before trial is not significant as the legislature did not set forth a time limitation in Article 412.2."
The other crimes evidence at issue would be admissible under Article 404(B) pursuant to the second circuit's decision in Zornes, 814 So. 2d 113, to show the occurrence of a crime through a common design.
Next, Defendant asserts the other crimes evidence at issue in the case at bar is inadmissible insofar as his intent was not at issue. Defendant asserts that he denied this offense. Thus, evidence of other crimes, acts, or wrongs involving alleged sexually assaultive behavior or to show a lustful disposition toward children was absolutely inadmissable. In support of this argument, Defendant cites Kennedy, 803 So. 2d 916, wherein the supreme court found that specific intent was not at issue. Thus, other crimes evidence was not admissible to prove the defendant's bad character. Defendant then asserts that evidence of lustful disposition was not admissible unless intent was at issue. In support of this argument, Defendant cites State v. Miller, 98-301 (La. 9/9/98), 718 So. 2d 960.[5] Defendant asserts that since his intent was not at issue, evidence of other crimes was not admissible.
Defendant further asserts that the evidence at issue was not relevant to this case. He alleges that evidence designed to show propensity to commit the charged offense is "not admissible absent an exception." Defendant then asserts that lustful disposition is an exception, but does not create its own relevance.
In Willis, 915 So.2d at 375, this court stated the following regarding Kennedy, 803 So. 2d 916:
In Kennedy, 803 So. 2d 916, the supreme court held that absent a dispute as to whether the accused intended to commit the crime, evidence of other crimes was prohibited to show intent when the crime charged was a general intent crime. The Defendant argues that Kennedy is applicable in the case at bar. However, the decision in Kennedy was implicitly overruled by the legislature's enactment of Article 412.2.
In Zornes, 814 So.2d at 115 (alteration in original), the second circuit stated the following regarding Kennedy, 803 So. 2d 916:
following State v. Kennedy, supra, the legislature enacted La.C.E. art. 412.2 for the purpose of allowing evidence of (an)other offense(s) in sexual assault cases or in cases involving sex offenses against minors regardless of whether the charged offense is a general intent or specific intent crime. This legislative decision corresponds to the suggestion set forth in the concurrence of Justice Victory in State v. Kennedy, supra at 925-926.
Kennedy, 803 So. 2d 916, has been implicitly overruled and is inapplicable to the case at bar. Further, the other crimes evidence is relevant to prove Defendant's lustful disposition toward children under Article 412.2 and to prove a common design under Article 404(B).
Defendant notes that he is aware that the legislature enacted Article 412.2 in response to Kennedy, 803 So. 2d 916, and of this court's decision in Willis, 915 So. 2d 365, which found that Article 412.2 does not violate the ex post facto clause. However, he asserts that the Louisiana Supreme Court has yet to weigh in on this issue and has expressly indicated that ex post facto application of Article 412.2 remains an open question. See State v. Morgan, 02-3196 (La. 1/21/04), 863 So. 2d 520 n.2. Thus, to the extent Article 412.2 admits evidence of other crimes, wrongs, or acts to show lustful disposition, the Article is unconstitutional and cannot be used as a basis to introduce evidence of other crimes.
Defendant failed to indicate, in his "Motion to Declare Louisiana Code of Evidence Article 412.2 Unconstitutional" the basis for his allegation that Article 412.2 violates the ex post facto clause. Furthermore, the issue was not raised at the hearing on Defendant's motion and was not considered by the trial court in its ruling on the motion. Thus, this issue will not be considered by this court. Additionally, as previously discussed, Defendant waived any argument regarding the constitutionality of Article 412.2.
Defendant contends that the jury was not instructed regarding the burden of proof with regard to other crimes evidence. Defendant asserts that without guidance as to the elements of the non-charged other crimes, the jury could have found that the non-charged crimes had been proven even if all elements of the offenses were not present. Further, he asserts that the State should have been required to prove the noncharged crimes by clear and convincing evidence and the jury should have been so instructed.
There is no indication in the record that Defendant requested an instruction regarding a clear and convincing burden of proof or that he objected to a lack thereof. Thus, Defendant may not now ask this court to find that the trial court erred in failing to give such an instruction since he has waived any error regarding this issue. La.Code Crim.P. art. 841.
Excessive Sentence
In his third assignment of error, Defendant contends that the trial court erred in imposing a life sentence. Defendant asserts that he could not have been ordered to serve more than twenty years at hard labor.
As noted in Breaux, ___ So.3d ___, the penalty for aggravated rape between 1950 and September 8, 1977, was death. However, that penalty could not be carried out. However, at the time of the offense in the case at bar, a jury was authorized to return the following verdicts:
Guilty.
Guilty without capital punishment.
Guilty of attempted aggravated rape.
Guilty of simple rape.
Not guilty.
La.Code Crim.P. art. 814 (1967). Louisiana Code of Criminal Procedure Article 814 was amended, effective July 2, 1973, to delete the responsive verdict of "guilty without capital punishment." 1973 La. Acts No. 126, § 1. Furthermore, from 1967 until July 26, 1972, La.Code Crim.P. art. 817 provided in pertinent part, "[i]n a capital case the jury may qualify its verdict of guilty with the addition of the words `without capital punishment,' in which case the punishment shall be imprisonment at hard labor for life." From July 26, 1972 until July 2, 1973, Article 817 provided: In a capital case the jury may qualify its verdict of guilty as follows:
(1) With the addition of the words `without capital punishment,' in which case the punishment shall be imprisonment at hard labor for life, or
(2) With the addition of the words, `without capital punishment or benefit of parole, probation, commutation or suspension of sentence,' in which case the punishment shall be imprisonment at hard labor for life without benefit of parole, probation, commutation or suspension of sentence.
1972 La. Acts No. 502.
In State v. Craig, 340 So. 2d 191 (La.1976), the supreme court discussed the penalty applicable in aggravated rape cases after the death penalty was declared unconstitutional, as follows:
The defendant has thus been convicted of a crime whose penalty has been declared unconstitutional. This problem is not a new one, however. After the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), which declared the death penalty as then applied unconstitutional, this court remanded murder and rape cases where death had been imposed for resentencing to life imprisonment. See e.g. State v. Franklin, 263 La. 344, 268 So. 2d 249 (1972), a murder case; State v. Singleton, 263 La. 267, 268 So. 2d 220 (1972), an aggravated rape case. The precedent for such action had been established in State v. Shaffer, 260 La. 605, 257 So. 2d 121 (1971), where the problems were discussed, and State v. Duplessis, 260 La. 644, 257 So. 2d 135 (1971), following the reversal by the United States Supreme Court of our judgment "insofar as it imposes the death sentence" for a "Witherspoon" violation. Duplessis v. Louisiana, 403 U.S. 946, 91 S. Ct. 2282, 29 L. Ed. 2d 856 (1971).
However, a different situation exists now than at the time of Franklin and Singleton, supra. At the time those cases were decided, C.Cr.P. 814 provided for a responsive verdict of "guilty without capital punishment" for murder and aggravated rape. C.Cr.P. 817, at that time, also authorized the "qualified" verdict of "guilty without capital punishment," in which case the sentence would be life imprisonment. Thus, reasoning that the responsive verdict of guilty without capital punishment was the next authorized verdict for the crime, we remanded for resentencing as if that verdict has been returned, and, under C.Cr.P. 817, life imprisonment was called for.
The situation has changed. In an attempt to overcome Furman's objections to the death penalty, the legislature amended the murder statute to provide for first and second degree murder, making death mandatory for first degree murder. Likewise, the death penalty for aggravated rape was mandatory. To accomplish this, the legislature amended C.Cr.P. 814 to do away with the responsive verdict of "guilty without capital punishment" for first degree murder and aggravated rape. Thus, at the time this crime was committed, November 26, 1974, the only responsive verdicts to a charge of aggravated rape were guilty; guilty of attempted aggravated rape; guilty of simple rape; not guilty. Additionally, C.Cr.P. 817 was amended to delete the provision authorizing the qualifying verdict "guilty without capital punishment." Thus there is no longer any authority for us to remand an aggravated rape case for resentencing to life.
At the time (November 26, 1974) this crime was committed, attempted aggravated rape was punishable by imprisonment for not more than twenty years. R.S. 14:27 D(1). Simple rape carried a penalty of one to twenty years. R.S. 14:43. Thus, following the reasoning of Franklin and Singleton, supra, we remand this case for resentencing of defendant to the most serious penalty for the next lesser included offense. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor.
Id. at 193-94 (emphasis added).
In State v. Batiste, 371 So. 2d 1164 (La.1979), the supreme court discussed the issue again, explaining in pertinent part:
We find, however, an error patent in the sentence imposed. At the time the offense was committed (1970), death was the statutory penalty for rape. The jury was authorized to return a verdict of either guilty, guilty without capital punishment, guilty of attempted aggravated rape, guilty of simple rape, or not guilty. La.C.Cr.P. art. 814 (1950). The defendant was not tried until 1973, however, after the Supreme Court had declared unconstitutional the procedure by which the death penalty was imposed in Louisiana. Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). In the defendant's case the jury returned a verdict of guilty as charged. As the death penalty could not be imposed, the proper sentence is life imprisonment. State v. Quinn, 288 So. 2d 605 (La.1974); State v. Franklin, 263 La. 344, 268 So. 2d 249 (1972). We note that this will restore to the defendant the possibility of parole, probation, suspension or commutation of sentence.
Id. at 1165 (emphasis added).
In State v. Johnson, 429 So. 2d 870 (La.1983), the defendant was convicted of aggravated rape, the offense having occurred on September 16, 1972. The supreme court reviewed the propriety of the lower court's reduction of the defendant's sentence to twenty years and stated the following:
At the time of the commission of the offense and at the time of trial and conviction, aggravated rape was punishable either by death or by life imprisonment without probation, parole or suspension of sentence. Also at this time, La.C.Cr.P. Art. 817 accorded the option to a jury of qualifying its verdict of guilty in a capital case by adding the words "without capital punishment." In an effort to limit such excessive jury discretion, found objectionable in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the legislature amended both statutes, removing the provision which had previously allowed imposition of a life sentence pursuant to the jury's recommendation. For a complete historical discussion of these amendments, see, State v. Jett, 419 So. 2d 844 (La.1982). As a result, defendants thereafter convicted of aggravated rape were automatically sentenced to death.
In 1976, however, Selman v. Louisiana, supra, declared unconstitutional Louisiana's mandatory death penalty for aggravated rape. The sentences of defendants previously convicted under the mandatory penalty scheme were vacated, this Court concluding that the appropriate sentence to be imposed upon a valid conviction for aggravated rape was the most severe constitutional penalty established by the legislature for a lesser included offense at the time was committed. State v. Selman, supra.
Defendant in the present case errs in characterizing his situation as analogous to that of defendants convicted of aggravated rape following the 1973 amendments to La.R.S. 14:42 and La.C.Cr.P. Art. 817. As noted above, the most severe constitutional penalty available for the offense of aggravated rape at the time of defendant's offense was life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. Thus, defendants convicted of aggravated rape and sentenced to death prior to 1973 found their sentences reduced only to life imprisonment. State v. Singleton, 263 La. 267, 268 So. 2d 220 (1972); see also, State v. Franklin, 263 La. 344, 268 So. 2d 249 (1972).
Id. at 871-72.
We note the following language by the first circuit in footnote three of its opinion in State v. Handley, 453 So. 2d 1242 (La.App. 1 Cir.), writ denied, 457 So. 2d 1199 (La.1984):
The offense of which defendant was convicted occurred on April 3, 1973. It is well settled that a defendant is to be tried under the statute in effect at the time of the commission of the crime. The death penalty sentencing provision for aggravated rape in effect on April 3, 1973 was declared unconstitutional in Selman v. Louisiana, 428 U.S. 906, 96 S. Ct. 3214, 49 L. Ed. 2d 1212 (1976). However, from July 26, 1972 (effective date of Acts 1972, No. 502) to July 2, 1973 (effective date of Acts 1973, no. 125) La.Code Crim.P. art. 817, as amended by Acts 1972, No. 502, provided in pertinent part:
Art. 817. Qualifying verdicts in capital and noncapital cases:
"In a capital case the jury may qualify its verdict of guilty as follows:
(1) With the addition of the words `without capital punishment,' in which case the punishment shall be imprisonment at hard labor for life, or
(2) With the addition of the words, `without capital punishment or benefit of parole, probation, commutation or suspension of sentence,' in which case the punishment shall be imprisonment at hard labor for life without benefit of parole, probation, commutation or suspension of sentence."
Accordingly either imprisonment at hard labor for life or imprisonment at hard labor for life without benefit of parole, probation, commutation or suspension of sentence would have been an appropriate sentence on this guilty verdict.
Id. at 1245.
Defendant cites State v. Fraise, 350 So. 2d 154 (La.1977), in support of his proposition that he should receive a sentence of twenty years. In Fraise, the supreme court stated the following:
For the reasons set forth in State v. Craig, 340 So. 2d 191 (La.1976), State v. Lee, 340 So. 2d 180 (La.1976), and State v. Sledge, 340 So. 2d 205 (La.1976), we have held that, because the legislature obviously intended to impose the most serious penalty available under law for the crime of aggravated rape, the appropriate penalty since the invalidation of the mandatory death penalty is the most serious penalty for a lesser-included offense at the time of the commission of the crime. At the time of the commission of the present offense (June 16, 1971), attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years while the crime of simple rape carried a penalty of imprisonment at hard labor for not less than one nor more than twenty years. Consequently, the most serious penalty is twenty years at hard labor. Therefore, in accordance with our decisions in Craig and Lee, we must vacate and set aside the imposition of the death penalty even though we affirm the conviction and remand the case to the trial court for resentencing.
Id. at 157-58 (emphasis added).
The bill of information charged that the current offense occurred between 1966 and 1972. At that time, the penalty for aggravated rape was death. However, that penalty was declared unconstitutional. Guilty without capital punishment was a responsive verdict to aggravated rape until July 2, 1973. Thus, a defendant who committed the offense of aggravated rape prior to that date would properly be sentenced to life imprisonment.[6]
In spite of the supreme court's ruling in Fraise, which we find is contrary to its statements in Craig, 340 So. 2d 191, and Batiste, 371 So. 2d 1164, Defendant was properly sentenced to life imprisonment. Accordingly, this assignment of error lacks merit.
Failure to Sequester the Jury
In his fourth assignment of error, Defendant contends that if the procedural rules in effect in 1972 should be applied to his case, reversal is mandatory because the jury was not sequestered. Defendant asserts that reversal is required even if it is found that he acquiesced in the failure to sequester the jury.
In support of his argument, Defendant cites State v. Luquette, 275 So. 2d 396 (La.1973), overruled by State v. Taylor, 93-2201 (La. 2/28/96), 669 So. 2d 364, cert. denied, 519 U.S. 860, 117 S. Ct. 162 (1996), and State v. Craighead, 38 So. 28 (La.1905), overruled by Taylor, 669 So. 2d 364. In both cases, the supreme court held that in capital cases, the jury should not be permitted to separate after it has been sworn, either with or without consent of the defendant. Defendant further asserts that backstrikes would not have been allowed in 1972.
The State asserts that Defendant did not preserve these issues for appellate review, as Defendant acquiesced in and waived sequestration of the jury and engaged in the use of backstrikes. In support of its argument, the State cites State v. Fussell, 06-324 (La.App. 3 Cir. 9/27/06), 941 So. 2d 109, overruled on other grounds by State v. Fussell, 06-2595 (La. 1/16/08), 974 So. 2d 1223. In Fussell, 941 So. 2d 109, the defendant claimed the jury was not fully sequestered, which was improper because it was a capital case. He asserted the jurors were allowed to run all over the courthouse during recess and lunch breaks. On review, this court found that the voir dire transcript revealed no objection regarding the lack of sequestration and that defendant did not reference any point in the record where such an objection was raised. Thus, the defendant's claim was not properly preserved for appellate review. This court further found that the sequestration rule for capital cases did not apply to the case. The State also cites La.Code Crim.P. art. 791(B) in support of its argument, which now provides that the State and defense may jointly waive jury sequestration in capital cases.
In Breaux, ___ So.3d ___, the defendant was charged with having sexual intercourse with his nieces between 1961 and 1980. During most of that time, the penalty for aggravated rape was death. In the error patent review, this court found the procedural rules for capital cases, such as unanimous jury and sequestration of the jury, should be applied in that case. Id. at 5. See also D.T., 998 So. 2d 1258. Thus, we find that the procedural rules for capital cases were properly applied to the case at bar.
Prior to the commencement of trial, Defendant, with the acquiescence of the State, waived sequestration of the jury. We note that in Luquette, 275 So. 2d 396, and Craighead, 38 So. 28, the supreme court held that a defendant could not waive sequestration of the jury in a capital case. Those rulings were handed down in 1973 and 1905 respectively. However, in Taylor, 669 So. 2d 364, the supreme court discussed sequestration of the jury as follows:
At the time of this trial, La.Code Crim.P. art. 791(B) provided: "In capital cases, after each juror is sworn he shall be sequestered." Under La.Code Crim.P. art. 788(A), an individual juror must be sworn immediately by the trial court after he has been accepted by the state and the defendant as a prospective juror. Once the jury selection process is completed, the entire jury panel is then sworn again by the trial court. La.Code Crim.P. art. 790.
It was anticipated by the state and the defense that jury selection in this case would be lengthy. . . . After the first panel of 12 prospective jurors was examined and just before both sides were about to exercise their peremptory challenges, the trial court made the following ruling, outside the prospective jurors' presence, regarding sequestration and swearing:
THE COURT: Before bringing the prospective jurors in, I want to state for the record that this court is proceeding in accordance with Article 788, Section B, with regards to jury selection utilizing the system of simultaneous exercise of challenges. The Court will further note that under Article 790 of the Code of Criminal Procedure, that jurors are to be sworn at one time once all of thewhen the selection of jurors and alternate jurors has been completed, and all issues properly raised under Article 795 have been resolved, the jurors shall be sworn together to try the case in a just and impartial manner. The Court in following the dictates of 790 and taking into consideration of 788 will allow counsel for the defense to exercise simultaneous challenges. However, the court will not swear these jurors in accordance with 790 in view of the fact that 791(B) dictates that each jurorafter each juror is sworn sequestration is to take place, so this would be, the court does not feel that if we select any persons from this panel that we could properly swear them because all jurors have not been selected. State do you have any objections to this procedure?
MR. SINQUEFIELD: No, your honor, I think it's a correct procedure.
THE COURT: Defense?
MS. JACKSON: No, sir.
MR. BOREN: No, your honor.
In accordance with this ruling, and without objection from either of the parties, jurors that were not peremptorily challenged were not immediately sworn, as La.Code Crim.P. art. 788(A) requires. Instead, the trial court informed the individual jurors that they would be serving on the jury, and allowed them to return to their homes and to work until the trial began. The trial court admonished the individual jurors not to discuss the case with anyone, not to listen to news accounts about the case, and not to read written reports about the case during this time. Once jury selection was completed, the entire jury panel, and the two alternates, were then sworn in accordance with La.Code Crim.P. art. 790.
The defendant now complains that this procedure violated the swearing requirement of Article 791(B), and that his conviction and sentence should be reversed since the violation deprived him of due process, a fair trial and an impartial jury.
From the trial court's statement quoted above and the colloquy thereafter, it is evident that the state and the defense agreed to, or at least acquiesced in, the procedure proposed by the trial court, which effectively consisted of a waiver of the sequestration requirement by delaying the individual swearing requirement of Article 788(A). Historically, this Court has adhered to the principle that an accused may not consent to waive the sequestration requirement. State v. Luquette, 275 So. 2d 396 (La.1973); State v. Craighead, 114 La. 84, 38 So. 28 (1905); State v. Hornsby, 8 Rob. 554 (La.1844). The rationale behind this rule being that a "[d]efendant ought not to be placed in the position of having to consent, or perhaps prejudice the jury by withholding consent." State v. Luquette, 275 So.2d at 400, citing State v. Craighead, supra.
We find this jurisprudentially established rule unnecessary. This is reflected by recent legislative activity. During the 1995 legislative session, La.Code Crim.P. art. 791(B) was amended by La.Acts Nos. 1172, § 1 and 1277, § 1, to provide:
In capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered. (Emphasis added.)
With this change, it is clear that a waiver of the sequestration requirement is now possible.
Since this amendment was enacted well after the defendant's trial, and did not become effective until August 15, 1995, it does not apply here. Nevertheless, it lends support to our conclusion that the jurisprudentially-created prohibition against waiver is no longer necessary. The concerns expressed in the cases cited above, namely, placing the defendant in a position of having to consent or prejudicing him in the eyes of the jury if he withholds consent, may be remedied by using the proper procedure. Considering the issue of waiver of sequestration, if it is even raised, outside the presence of prospective jury members would prevent jury members from becoming aware that the sequestration requirement may be waived. In the unlikely event that a jury member is aware of the possibility of waiver, he would still be unable to form prejudices against the defendant because it would be impossible to determine which party refused to consent to the waiver.
The amendment to La.Code Crim.P. art. 791(B) also achieves this result. By requiring both the defendant and the state to agree to the waiver, the defendant is neither placed in a position of having to consent nor is he prejudiced by his refusal to consent to the waiver.
Although 1995 La.Acts Nos. 1172, § 1 and 1277, § 1, effective August 15, 1995, changed the law regarding waiver of the sequestration requirement it may still have limited viability in previously tried cases. To this extent, we overrule those cases prohibiting waiver of the sequestration requirement. Because, at the very least, the defendant in this case impliedly waived the sequestration requirement by acquiescing in the trial court's proposed procedure, this assignment of error is without merit.
Id. at 380-81 (footnotes omitted).
In State v. Robertson, 97-177, p. 15 (La. 3/4/98), 712 So. 2d 8, 23, cert. denied, 525 U.S. 882, 119 S. Ct. 190 (1998), the supreme court noted that in Taylor, 669 So. 2d 364, it "recognized that even under the previous version of Article 791, a defendant could consent to the waiver of the sequestration requirement."
Although capital protections applied to Defendant's case, we find that under Taylor, 669 So. 2d 364, Robertson, 712 So. 2d 8, and La.Code Crim.P. art. 791(B), Defendant could waive sequestration of the jury. Furthermore, in D.T., 998 So. 2d 1258, 1264, this court stated the following:
In this case, the State did not seek the death penalty. Defendant failed to assign this error in his appeal to this court, and he failed to allege or prove any prejudice suffered by this possible error. Accordingly, assuming the trial court erred in failing to sequester the jury, we find this error to be harmless. See [State v.] Porter, [99-1722 (La.App. 3 Cir. 5/3/00),] 761 So. 2d 115, and [State v.] Marcantel, [98-825 (La.App. 3 Cir. 12/22/99),] 756 So. 2d 366[, writ denied, 00-208 (La. 8/31/00), 766 So. 2d 1274].
The State did not seek the death penalty in the case at bar, and Defendant failed to allege or prove the prejudice suffered as a result of the failure to sequester the jury. Thus, any error regarding failure to sequester the jury would be harmless.
Furthermore, defense counsel never objected to the use of backstrikes during jury selection. Thus, this issue was not properly preserved for appellate review. La.Code Crim.P. art. 841.
For the reasons set forth above, this assignment of error lacks merit.
DECREE
For all of the foregoing reasons, Defendant's conviction and sentence are affirmed.
AFFIRMED.
NOTES
[1] Initials of Defendant and several other witnesses in this matter are used so that the identity of the victim may not be ascertained in accordance with La.R.S. 46:1844(W).
[2] The parties refer to C.H. in briefs to this court and C.H. was listed as a victim in the bill of indictment. C.H. is married and is now known as C.G. However, we will refer to this witness as C.H. throughout this memorandum.
[3] We quote the statute as it existed in 1950. It appears the statute was not changed until 1975 by La.Acts No. 612, which amended and reenacted Title 14, § 42 of the Louisiana Revised Statutes of 1950.
[4] The court was referencing United States v. Marion, 404 U.S. 307, 92 S. Ct. 455 (1971), and State v. Dykes, 803 S.W.2d 250 (Tenn.Crim.App.1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn.2000).
[5] Miller involved the admission of evidence under Article 404(B) and was decided before the enactment of Article 412.2.
[6] Between July 2, 1973, and September 12, 1975, a defendant convicted of aggravated rape was properly sentenced to twenty years. State v. Sledge, 340 So. 2d 205 (La.1976). The statute for attempt, La.R.S. 14:27, was amended, effective September 12, 1975, to provided for a sentence of fifty years. 1975 La. Acts No. 132, § 1; State v. Welch, 368 So. 2d 965 (La.1979). Thus, a defendant convicted of aggravated rape between September 12, 1975 and September 9, 1977 was properly sentenced to fifty years. On September 9, 1977, the penalty for aggravated rape was changed to provide for life imprisonment. 1977 La. Acts No. 343; State v. Petrie, 414 So. 2d 304 (La.1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568538/ | 41 F.2d 632 (1930)
In re COHAN.
No. 4317.
Circuit Court of Appeals, Third Circuit.
June 18, 1930.
Mortimer C. Rhone, of Williamsport, Pa., and Samuel Gubin (of Cummings & Gubin), of Sunbury, Pa., for appellant.
A. R. Jackson, of Williamsport, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
This appeal is from a decree of the District Court approving an order made by a referee commanding the bankrupt to turn over to his trustee "goods or merchandise consisting of shoes, overshoes, boots, socks, hose and other footwear to the value of $52,397.61, or the proceeds thereof, which came into his possession between January 1, 1928 and January 5, 1929 and which he had in his possession or under his control January 5, 1929 the date he filed his petition and which he concealed or otherwise failed to turn over to his trustee. * * *"
The main dispute in law arises on the bankrupt's assignment of error that the order is invalid because made in the alternative that he turn over goods or the proceeds of their sale, relying on In re Sax (D. C.) 141 F. 223, which we discussed and distinguished *633 in Hirsch v. Schilling (C. C. A.) 28 F.(2d) 171, 172. The later decision rules this case.
As the basis of the turnover order is concealment of assets whether goods or money from the trustee, the fact of concealment must be proved. The appellant maintains that there is no evidence that sustains such a finding, and, going a point further, says that the referee himself admitted this lack of evidence and based his decision on a mere assumption, as shown by this statement in his report:
"As there is no specific proof of the hiding away of assets by the bankrupt, or removing them clandestinely from his stores, the Referee thinks the next alternative or assumption (that of concealing the proceeds of sales) the more probable one. Both processes might have been employed.
Notwithstanding this discursive remark, the referee did find that the bankrupt had concealed his property, so the question whether there is evidence that sustains his finding remains.
Undoubtedly, in a proceeding of this kind concealment must be proved. Concealment, however, is the ultimate and decisive fact which, in turn, can be proved in one of two ways: One, by a witness who actually saw the concealment made, which seldom happens; the other, by proving facts from which the fact of concealment may be inferred (which, evidently, is what the referee meant), especially where they suggest and sustain no other inference. For instance, if it is proved that a bankrupt has purchased large amounts of goods within a short period prior to his bankruptcy and has only a nominal amount in his possession at the time of bankruptcy and is unable or unwilling to explain what he has done with them, that is a fact from which it is permissible to infer that he has them in concealment. Or, if he explains the disappearance of the property by showing that it was sold but refuses to explain what became of the proceeds, then again that is a fact from which it is permissible to infer the ultimate fact that he has concealed them. In re Magen Co. (C. C. A.) 10 F.(2d) 91; Hirsch v. Schilling (C. C. A.) 28 F.(2d) 171, 172. When concealment has been established in one way or another the law authorizes an order commanding the turnover of the precise goods concealed or their concealed proceeds, which is what the referee did in this case on facts about the existence of which, as distinguished from the inferences to be drawn from them, there is little dispute.
The bankrupt, who kept two shoe stores, showed by financial statements made in January, 1928 a year before bankruptcy that his indebtedness at the beginning of that year was $11,000 (speaking always in round numbers), and by his schedule that his indebtedness at the end of the year was $89,000. By the same financial statements he showed assets at the beginning of the year of the value of $28,000 reckoned at cost, and by his schedule a year later assets of the value of $23,000, appraised at $10,000 and bringing at public sale $6,800, showing solvency to the amount of $16,500 at the beginning of the year and insolvency to the amount of $65,000 at the end of the year. According to the testimony of an expert accountant based on the books the bankrupt purchased $125,000 worth of goods during the year preceding bankruptcy. From their sale he deposited $88,000 in bank. At the date of bankruptcy there was no money in the bank and none in the drawer. These figures of large purchases and greatly increased liabilities and decreased assets, with no money in hand, show that both goods and money had disappeared and, if not explained, that one or the other had been concealed. The bankrupt's explanations consisted mainly in an attack on the accuracy of the accountant's statement of goods purchased and sold, based on claimed sales below cost, which, even if accepted, still leaves a large sum unexplained. We shall not repeat, nor, in the absence of an appeal by the trustee, shall we inquire into the referee's extended calculation except to determine whether its final figure is the minimum of property or money concealed and is sustained by evidence.
The trustee was willing to forgive or forget $16,500, representing the bankrupt's assets in excess of his liabilities at the beginning of the year and asked only that he be required to turn over goods purchased during the year for which there was no accounting on the books or the proceeds of their sale. The referee found the total value of goods that had disappeared during the year was $82,000. From this he deducted $16,500, the net value of goods on hand at the beginning of the year, leaving a balance of $65,500 to be accounted for. From this, in order to make even figures, he deducted something more than $5,000, leaving a net balance of $60,000 sought to be recovered. From this sum the referee made further deductions until he found the value of the concealed goods or their proceeds to be the sum of $52,397.61, the amount named in the order.
We are not satisfied that this sum represents the full value of what was concealed. *634 However, the figures of goods purchased, goods remaining, indebtedness incurred, money deposited, and lack of money in bank or in hand constitute evidence that most of the goods purchased during the year was sold and that the proceeds, amounting at least to the figure of the order, were concealed.
The decree is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568592/ | 772 S.W.2d 288 (1989)
Harold Cedell REESE, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-87-221-CR.
Court of Appeals of Texas, Waco.
June 1, 1989.
Kirk Bryant, Martin, Showers & Smith, Hillsboro, for appellant.
Dan V. Dent, Crim. Dist. Atty., Hillsboro, for appellee.
ORDER
PER CURIAM.
The jury convicted Appellant of murdering Shug Walker, Jr., and assessed his punishment at ninety-nine years in prison and a $10,000 fine. One of his complaints is that the court erroneously excluded the testimony and affidavit of Wilda Grantham, a juror, at the hearing on the motion for a new trial. The essence of Grantham's testimony, which is preserved in a bill of exception, was that another juror mentioned the parole law during deliberations on punishment, that the jury discussed the parole law, and that she, Grantham, relied on the other juror's comments and voted for a harsher punishment.
The question is whether Grantham's testimony was barred by Rule 606(b) of the Rules of Criminal Evidence, because it pertained to a statement made during the jury's deliberations, or was admissible under the rule's exception because it was relevant to the validity of the verdict. See Tex.R.Crim.Evid. 606(b). Concluding that the evidence was wrongfully excluded under the facts presented, but that such error can be corrected, the appeal will be abated pending further action by the trial court. See Tex.R.App.P. 80(c).
Rule 30(b)(7) of the Rules of Appellate Procedure requires the court to grant the accused a new trial when "after retiring to *289 deliberate the jury has received other evidence." Tex.R.App.P. 30(b)(7). Rule 606(b) of the Rules of Criminal Evidence provides:
(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify as to any matter relevant to the validity of the verdict or indictment. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
Tex.R.Crim.Evid. 606(b) (emphasis added).[1]
Grantham would have testified that, during deliberations on punishment, another juror mentioned the parole law, and stated that Appellant would serve only five to ten years in prison, even if the jury assessed his punishment at ninety-nine years. Grantham described the parole discussion as the "main source" of the jury's deliberation on punishment. According to Grantham, the other juror seemed "sure of her position," appeared "adamant," and expressed her opinion as though it were based on facts and knowledge gained through someone connected with the prison system. Grantham said she relied on the juror's assertions and changed her vote on punishment from thirty years and a fine to ninety-nine years and a $10,000 fine.
Two other jurors testified in the bill of exception about the parole discussion. Leona Conner, the presiding juror, said the discussion lasted only as long as it took her "to hit the table with my shoe and say that it is against the rules." She said she "squelched" the discussion and nothing more was said about parole. Thelma Williams remembered parole being mentioned by another juror, but confirmed that Conner immediately stopped the discussion and warned jurors that "we were not there for that." Included in the bill were affidavits from Conner, Williams, and five other jurors, all stating that the comment about parole was never asserted to be based on fact and that the brief discussion had not affected their or any other juror's vote on punishment.
Essentially, Appellant's argument is as follows:
(1) Rule 30(b)(7) guaranteed him a new trial if he could prove that the jury "received other evidence" during its deliberations;
(2) The juror's comments about the parole law constituted "other evidence" which the jury "received" during its deliberations and used to punish him;
(3) The jury violated his constitutional right to confront and cross-examine witnesses (i.e., the jurors) when it received other evidence detrimental to him and used it to assess his punishment;
(4) The punishment verdict was, thus, constitutionally invalid;
(5) Grantham's testimony was admissible under the exception in Rule 606(b) because it was "relevant to the validity of the verdict";
(6) If Rule 606(b) barred her testimony, then it violated the "open court" provision (Article I, Section 13) of the Texas Constitution because the rule barred the only available remedy for enforcing his right to a new trial under Rule 30(b)(7); and
(7) If Rule 606(b) barred her testimony, then the rule violated the "confrontation" clause of the Texas Constitution (Article I, Section 10) and the U.S. Constitution (Sixth Amendment) because it precluded him from confronting and cross-examining the witness (i.e., the juror) *290 who gave the jury the "other evidence."
An accused must prove that the jury actually "received" other evidence that was "detrimental" to him before he can obtain a new trial under Rule 30(b)(7). Hunt v. State, 603 S.W.2d 865, 869 (Tex.Cr. App.1980). Whether such evidence was actually "received" by the jury is a fact question to be determined by the court at the hearing on the motion for a new trial. Baldonado v. State, 745 S.W.2d 491, 495 (Tex. App.Corpus Christi 1988, pet. ref'd). Rule 30(b)(7) protects the accused's fundamental right to a jury trial by restricting the jury's consideration to evidence properly admitted during the trial. Bearden v. State, 648 S.W.2d 688, 693 (Tex.Cr.App. 1983).
Grantham's testimony was obviously within the express prohibition of Rule 606(b) because it pertained to a "statement occurring during the course of the jury's deliberations." See Tex.R.Crim.Evid. 606(b). Thus, the question narrows to whether her testimony was admissible under the exception, which allows a juror to testify to "any matter relevant to the validity of the verdict." See id.
Procedural rules have the same force and effect as statutes. See Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868, 872 (Tex.1973). Therefore, they should be interpreted and construed under the rules applicable to legislative enactments. Criminal rules should be liberally construed to accomplish their objective of insuring a fair and impartial trial. See Stone v. Texas Employers' Insurance Association, 154 Tex. 21, 273 S.W.2d 59, 60 (1954); Tex.Code Crim.Proc.Ann. art. 1.03(5) (Vernon 1977). The ultimate goal of interpretation and construction is to determine what the enacting authority intended when it adopted the rule. See Knight v. Intern. Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex.1982).
What did the Court of Criminal Appeals intend when it adopted Rule 606(b)? Did it intend to prevent jurors from disclosing that the accused's constitutional rights were violated by the jury's receiving other evidence detrimental to him during its deliberations? What did it mean when it provided, by exception, that a juror can testify about "any matter relevant to the validity of the verdict"? Was Grantham's testimony relevant to the validity of the verdict?
A court cannot enact a procedural rule which conflicts with a constitutional provision. See Picard v. State, 631 S.W.2d 761, 763 (Tex.Civ.App.Beaumont 1981, no writ). Therefore, when a rule may be fairly given two interpretations, one of which results in its validity, a court must presume that the enacting authority did not intend to adopt an invalid rule, and shall interpret it so that it will be valid and constitutional. See Baldridge v. State, 167 Tex. Crim. 519, 321 S.W.2d 309, 310 (1959).
How Rule 606(b) should be interpreted has been the subject of comment. Judge Marvin Teague, in his concurring and dissenting opinion on petition for discretionary review in Rose v. State, 752 S.W.2d 529, 544 (Tex.Cr.App.1987), described Rule 606(b) as "internally self-contradictory," and stated: "If ... Rule 606(b) can be interpreted to mean that ... jurors are totally and absolutely immune from being called to testify, then, of course, it is obviously time for this Court to rewrite the rule." Such an immunity, he declared, would only promote jury misconduct. Id. Later, Judge Teague argued on rehearing that the exception in Rule 606(b) "x's out" what facially appears to be a complete bar against a juror relating any statement made during deliberations. Id. at 556.
A jury that actually receives "other evidence" after it begins deliberations violates the accused's constitutional right to confront and cross-examine the "witness" who gave the "other evidence" to the jury. Munroe v. State, 637 S.W.2d 475, 482 (Tex. Cr.App.1982). Thus, Rule 606(b) could be interpreted in a way that prevents the accused from proving that his constitutional rights were violated by the jury by barring testimony of all statements occurring during deliberations. That interpretation would result in the rule's invalidity because it would conflict with the constitutional *291 right to confront and cross-examine witnesses. See U.S. Const. Amend. VI; Tex. Const. art. I, § 10.
However, Rule 606(b) can also be fairly interpreted as allowing the accused to prove that the jury received other evidence detrimental to him during its deliberations, yet preserve the rule's general bar against jurors testifying to statements occurring during deliberations, or about jurors' mental processes, that do not result in jury misconduct that violates the accused's constitutional rights. How can the court rule on whether other evidence was actually "received" by the jury, a fact question it must determine, or assess its detrimental nature, unless it knows what the jurors said and heard in the jury room?
The plain language of the rule indicates the Court of Criminal Appeals did not intend to give jurors absolute immunity from testifying at a hearing on a motion for a new trial. In fact, a juror may testify about "any matter," as long as it is "relevant to the validity of the verdict." "Any matter" is a broad, all-encompassing term. Relating a statement made by another juror during deliberations, as long as it was relevant to the validity of the verdict, would constitute "any matter." Therefore, Grantham's testimony was admissible under the exception, if it was relevant to the "validity of the verdict."
Grantham's testimony, relating a juror's statement that could constitute "other evidence," was "relevant to the validity of the verdict" because, assuming the court found that such evidence was received and that it was detrimental to the accused, the verdict would be constitutionally invalid. Conflicting testimony on whether the jury actually "received," or merely mentioned, evidence relating to the parole law presented a fact question for the court's determination. See Baldonado, 745 S.W.2d at 495.
Based strictly on the facts presented, Grantham's testimony was admissible under the exception in Rule 606(b) because it related to the validity of the verdict on punishment. Accordingly, this appeal is abated pending further action in the trial court in accordance with the following instructions:
1. The court shall set aside the order denying Appellant a new trial.
2. The court shall conduct another hearing on Appellant's motion for a new trial within sixty days after the date of this order, and shall admit evidence and affidavits from jurors relevant to whether the jury received other evidence detrimental to Appellant during its deliberations on punishment.
3. The court shall then enter another order ruling on Appellant's motion for a new trial, supported by findings of fact and conclusions of law.
4. The court shall forward a statement of facts of the hearing and a supplemental transcript, containing any jurors' affidavits not heretofore filed, the order on Appellant's motion for a new trial and accompanying findings and conclusions, to the clerk of this court within thirty days after concluding the hearing.
If the court timely complies with this order, then the appeal will be reinstated, and this court will proceed as if no such error had occurred. See Tex.R.App.P. 81(a). Otherwise, the appeal will be reinstated, the judgment reversed, and the cause remanded for a new trial.
NOTES
[1] Rule 606(b) of the Rules of Criminal Evidence is identical to Rule 606(b) of the Rules of Civil Evidence, with one important difference. The exception in the civil rule reads: "except that a juror may testify whether any outside influence was improperly brought to bear upon any juror." Tex.R.Civ.Evid. 606(b) (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568714/ | 772 S.W.2d 381 (1989)
Johnny TRIGGS and Diane Triggs, Plaintiffs-Appellants,
v.
Mark RISINGER and Janice Risinger, Defendants-Respondents.
No. 55626.
Missouri Court of Appeals, Eastern District, Division One.
June 13, 1989.
Raymond Howard, St. Louis, for plaintiffs-appellants.
Nicholas J. Lamb, Mike W. Bartolacci, St. Louis, for defendants-respondents.
REINHARD, Judge.
Plaintiffs filed a petition alleging that defendants fraudulently concealed the existence of a 15 year lease which encumbered a portion of the property they purchased from defendants. They sought rescission of the contract and deed, as well as actual and punitive damages. Defendants filed a motion for summary judgment relying on various documents and depositions *382 of the parties. The trial court sustained the motion. Plaintiffs appeal; we affirm.
Plaintiffs purchased defendants' residence at 138 Powell in St. Louis County. The record reveals that this property is located at Lot 4 of Royal Oaks subdivision in St. Louis County, Missouri. Lot 4 fronts Powell Avenue on the north and can be roughly described as follows: beginning at the northeast corner, running west 95.00 feet along Powell Avenue; thence, south 188.81 feet; thence, east 70.50 feet; thence, south 41.19 feet; thence, east 24.50 feet; thence, north 230.00 feet to the point of beginning.
A ten to twelve foot wooden fence runs the entire 95 feet across the lot on a line 189 feet south of the lot line on Powell Avenue. The fence divides the lot into two separate areas, blocking the view between them. The area where the house is located is 95 feet × 189 feet. The other area is 24.5 feet × 41 feet and is encumbered by the lease.
In their sole point on appeal, plaintiffs contend that the trial court erred in granting summary judgment "for the reason that in the sale of real property, the sellers have a duty to disclose an encumbrance on title and such failure is false representation by concealment. Thus mere silence of respondents, in their relationship with the purchasers concerning the encumbrance, is not unassailable proof of no fraud entitling them to a summary judgment."
The tort of fraud and deceit consists of the following elements:
(1) a false, material representation;
(2) the speaker's knowledge of its falsity or his ignorance of its truth;
(3) the speaker's intent that it should be acted upon by the hearer in the manner contemplated;
(4) the hearer's ignorance of falsity of the statement;
(5) the hearer's reliance on its truth and the right to rely thereon; and
(6) proximate injury.
Strebler v. Rixman, 616 S.W.2d 876, 877 (Mo.App.1981). The failure to establish any one of these elements is fatal to recovery. Twiggs v. National Old Line Ins. Co., 581 S.W.2d 877, 880 (Mo.App.1979). Concealment of a fact which one has a duty to disclose properly serves as a substitute element for a false and fraudulent representation. Osterberger v. Hites Construction Co., 599 S.W.2d 221, 227 (Mo.App.1980).
Plaintiffs contend that they were not informed of the encumbrance on the property by "either defendants, or their [defendants'] agents, nor their [plaintiffs'] agent." This silence, according to plaintiffs, amounted to a breach of defendants' duty to disclose and therefore constituted a false representation.
In reviewing a summary judgment, we scrutinize the record in the light most favorable to the party against whom the judgment was entered and accord that party the benefit of every doubt. Edwards v. Heidelbaugh, 574 S.W.2d 25, 26-27 (Mo. App.1978). However, summary judgment is appropriate when the documents before the trial court, including pleadings, depositions, admissions and exhibits show that there is no genuine of issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c), Signature Pool, Inc. v. City of Manchester, 743 S.W.2d 538, 540 (Mo.App. 1987). If there is the slightest doubt about the facts, a material issue of fact exists. Edwards, 574 S.W.2d at 27.
In reaching its decision, the trial court had before it the depositions of the parties, along with various exhibits filed by the parties including the sales contract, the general warranty deed conveying the property to plaintiffs, the lease encumbering the property, the warranty deed conveying the property to defendants from the prior owner, and the title insurance commitment for the plaintiffs. The documentary evidence and admitted facts lead to our resolution of this case.
On February 22, 1984, the parties entered into the sales contract. The contract contained the following property description: "in the County of St. Louis, Missouri, known and described as (legal description on sellers title to govern): 138 Powell ..." The contract further provided that the
*383 Seller shall furnish general warranty deed, subject to deed restrictions, easements, right-of-way of record, and zoning regulations, also subject to leases and to occupancy of tenants existing on the date contract is executed by the purchasers....
Title will be marketable in fact, or purchaser will accept insurance policy issued by qualified title insurance company in lieu of strictly marketable title....
The warranty deed granting defendants title was recorded November 16, 1978, and contained the following legal description:
in the County of St. Louis and State of Missouri, to wit:
Lot 4 of ROYAL OAKS, according to the plat thereof recorded in Plat Book 46 Page 17 of the St. Louis County Records.
Subject to a 15 year Lease on the southern 41.19' quadrant, which Lease was executed on May 15, 1978 to run with the land and in favor of the owner of Lot 14 of said Royal Oaks Subdivision, and which Lease contains an option to purchase said quadrant.
138 Powell Avenue
11H 430 401.
The general warranty deed, executed April 27, 1984, conveying title to plaintiffs contains a legal description similar to that in the deed granting defendants title, and its description of the 15 year lease is verbatim. The title insurance commitment issued to plaintiffs on March 7, 1984, states the following: "the title to the land described in Schedule A hereof is at this date vested in fee simple in [defendants] subject only to the defects, objections, liens and encumbrances, all as shown as Schedule B hereof." Schedule A contains the following description: "Lot A of ROYAL OAKS SUBDIVISION, according to the plat thereof recorded in Plat Book 46 Page 17 of the St. Louis County Recorder's Office." The following appears on Schedule B:
9. NOTICE of un-recorded 15 year lease executed May 15, 1978 in favor of the owner of Lot 14 of said subdivision, according to instrument recorded in Book 7087 Page 1885. (Affects East 24.50 feet of the South 41.19 feet of said Lot 4) (CONTAINS OPTION TO PURCHASE).
Neither plaintiff conversed with either defendant before closing. Plaintiffs viewed the property twice before closing. The leased portion of the lot was separated from the remainder by a tie-wall and wooden fence ten to twelve feet high which ran the full width of the lot and which could not be seen through. Plaintiff Johnny Triggs testified he thought the fence was on the property line:
Q. Did you notice the property behind the fence when you first went out and looked at the property?
A. There's no way you could tell by the fence being tall. I thought that would be my property line.
Q. You assumed your property line was where the fence was?
A. Right.
Plaintiffs attended the closing, but defendants did not. According to plaintiffs, they received their deed and title insurance policy by mail after closing. They denied knowledge of the lease until after receiving these documents.
Plaintiffs rely primarily on Osterberger, supra, for their contention that defendants had a duty to disclose the existence of the lease encumbering Lot 4 and that the undisputed facts do not establish that they did not breach this duty. In Osterberger the defendants had extensive experience in real estate sales while the buyers were inexperienced. The principal defendant was a construction company corporation. One of the corporate officers, also a defendant, prepared the sales contract, promissory note, deed of trust and warranty deed used in the transaction. Although she was aware of an existing recorded deed of trust on the home being sold, she did not disclose its existence in any of the documents, nor did she mention it when she explained the documents. All of the documents were executed on the day of the sale, which was a Sunday. The sales contract and deed had a space for existing encumbrances, but none were indicated. Two of the defendants had transferred other properties by warranty deeds which did *384 not disclose the existence of outstanding deeds of trust. On these facts the court held, in affirming that part of the judgment in favor of the plaintiffs, that the defendants had a duty to disclose the existing deed of trust, that constructive notice of the encumbrance under the recording act did not discharge this duty which was not otherwise discharged and that the existence of the outstanding deed of trust was a material fact. Id. at 227-229.
While some of the statements of law in Osterberger have application here, the facts of that case can easily be distinguished. Here, the terms of the contract state that the realty was being sold "subject to leases and to occupancy of tenants existing on the date contract is executed by purchaser" and that the "legal description on seller's title" would govern the property description. Over 60 days passed from the date of the execution of contract and execution of the deed. Plaintiffs inspected the premises. Also, both the title insurance commitment issued on March 7 and the warranty deed executed on April 27 disclosed the existence of the encumbrance. Whether or not they had a duty to disclose encumbrances, we believe the documentary evidence in this case clearly reveals that defendants did not conceal the existence of the lease. Because there was no concealment, plaintiffs have failed to satisfy a crucial element, and their cause of action is therefore defeated.
In addition, to recover for fraud in a case such as this plaintiff must show his reliance on the defendant's concealment. Osterberger, 599 S.W.2d at 227. Plaintiff Johnny Triggs testified in his deposition that he and his spouse examined the premises, and he assumed that the fence was the property line. Plaintiffs received an unencumbered title to the property they believed they were purchasing; they did not expect to receive the land behind the fence. In Osterberger, the deed of trust encumbered the entire real property. Here the lease encumbered a portion of the property which plaintiffs did not realize was part of the transaction. Thus, it was not a material fact insofar as plaintiffs were concerned.
The documentary evidence and undisputed facts in this case show defendants are entitled to judgment as a matter of law. Thus the trial court correctly entered summary judgment.
Judgment affirmed.
CRANDALL, P.J., and CRIST, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568864/ | 772 S.W.2d 215 (1989)
Joseph F. CUKJATI, D.V.M., Appellant,
v.
B.M. BURKETT, D.V.M., Appellee.
No. 05-88-01077-CV.
Court of Appeals of Texas, Dallas.
May 8, 1989.
Neill English, Jr., Irving, for appellant.
Scottie Hays Ashley, W.T. "Skip" Leake, Irving, for appellee.
Before BAKER, BURNETT and WHITTINGTON, JJ.
BURNETT, Justice.
Joseph F. Cukjati appeals from an adverse summary judgment granted in favor *216 of his former employee, B.M. Burkett. The trial court found the covenant not to compete in Burkett's employment contract void as a matter of law. In two points of error, Cukjati asserts that the court erred 1) when it overruled his motion for summary judgment and granted summary judgment for Burkett; and 2) in granting Burkett's request for attorney's fees. We disagree and for the reasons discussed herein, affirm the trial court's judgment.
Burkett, a veterinarian licensed in Texas, entered into a contract of employment on April 1, 1981 with Cukjati. Also a licensed veterinarian, Cukjati owns and operates a practice with two locations in the city of Irving, Texas. Burkett was hired to work at Cukjati's North Irving clinic. The contract was renewed in 1983 with a change in the compensation scheme. Otherwise, the new contract was identical to the first, particularly with regard to the noncompete covenant. After practicing at Cukjati's clinic for 5 years and in compliance with the contract terms, Burkett gave 120 days resignation notice. Burkett terminated his employment with Cukjati on February 29, 1988. Several days later, Burkett began to manage and practice at the Buena Vista Animal Clinic which is approximately 2.2 miles from North Irving Animal Clinic. Burkett filed suit for a judgment declaring the employment contract void as a matter of law. Burkett asserted that the noncompete clause in the employment contract was a restraint on trade and unreasonable in that the restrictions were greater than necessary to protect Cukjati's interests. In return, Cukjati filed a countersuit where he requested a permanent injunction for enforcement of the restrictions on competition.
The contract terms at issue are follows:
Employee agrees that upon the termination of EmployeeEmployer relationship, Employee agrees not to practice veterinary medicine in Irving, Texas or within a twelve (12) mile radius of the Story Road Animal Hospital or North Irving Animal Clinic for a period of three (3) years.
Employee agrees not to advertise within the City of Irving of his departure from the North Irving Animal Clinic or send any written announcements or announcements of any sort notifying clients that he is leaving the practice of veterinary medicine at the North Irving Animal Clinic.
Employee further agrees that he will not notify present or past clients of the North Irving Animal Clinic of his return to the practice of veterinary medicine at a new location within five (5) years after terminating his relationship with North Irving Animal Clinic.
Employee agrees to pay liquidated damages in the sum of $50,000.00 if he advertises his departure from the North Irving Animal Clinic within the City of Irving, Texas, or sends written notice to clients or former clients of the North Irving Animal Clinic of his reentering the practice of veterinary medicine at any new location for a period of five (5) years after he terminates his relationship with Employer as Employee.
In his first point of error, Cukjati maintains that the summary judgment was in error because the contract provisions are not void as a matter of law. Under Texas law, a covenant not to compete in an employment contract is considered unreasonable "if it is greater than is required for the protection of the person for whose benefit the restraint is imposed or imposes undue hardship on the person restricted." Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 951 (1960).
The Texas Supreme Court has also held that covenants not to compete are unenforceable when they restrict the right to engage in a "common calling." Bergman v. Norris of Houston, 734 S.W.2d 673, 674 (Tex.1987); Hill v. Mobile Auto Trim, Inc., 725 S.W.2d 168, 172 (Tex.1987). Certain other covenants not to compete are enforceable, but only to the extent they are reasonable under the four-part test set out in Hill. That test requires that the covenant:
(1) must be necessary for the protection of the promisee;
*217 (2) must not be oppressive to the promisor; in this respect, limitations as to time, territory, and activity must be reasonable;
(3) must not be injurious to the public through prevention of competition or by depriving the community of needed goods;
(4) should be enforced only if the promisee gives consideration for something of value.
725 S.W.2d at 170-71.
Whether an employee is engaged in a "common calling" is a question of law which must be decided from the facts of each individual case. Bergman, 734 S.W.2d at 674. Several recent cases have provided examples of what is and is not a common calling. See Martin v. Credit Protection Ass'n, Inc., 31 Tex.Sup.Ct.J. 626 (July 13, 1988) (salesman is a common calling); Bergman, 734 S.W.2d at 673 (barbering is a common calling); Hill, 725 S.W.2d at 172 (auto trim repair is a common calling); contra DeSantis v. Wackenhut Corp., 31 Tex.Sup.Ct.J. 616 (July 13, 1988) (office manager who was key employee was not engaged in common calling); Travel Masters, Inc. v. Star Tours, Inc., 742 S.W.2d 837, 841 (Tex.App.Dallas 1987, writ dism'd w.o.j.) (travel agent who was also office manager was not engaged in a common calling). However, the Texas Supreme Court has not yet provided a definition of common calling. Hill, 725 S.W.2d at 177 (Gonzales, J., dissenting). The court has suggested that a common calling consists of activities that do not require extensive, highly sophisticated training in a complex field. McKelvey, Post Employment Noncompetitive Restrictive Covenants in Texas, 30 S.TEX.L.REV. 1, 93-94 (1988).
In Travel Masters, 742 S.W.2d at 840, this court reviewed the definitions of the individual words and found that "common" is defined as "of a usual type or standard; quite usual or average; entirely ordinary and undistinguished." Webster's New International Dictionary, 458 (3d ed.1981). "Calling" is defined as "the activity in which one customarily engages as a vocation or profession." Webster's at 318. The employee at issue in Travel Masters was a travel agent who was also hired and working as the office manager. The Travel Masters court determined that "[we] cannot hold as a matter of law an office manager is a `vocation or profession,' `of the usual type,' which is `entirely ordinary and undistinguished.'" Id. at 840-41.
Likewise in B. Cantrell Oil Co. v. Hino Gas Sales, Inc., 756 S.W.2d 781, 783 (Tex. App.Corpus Christi 1988, no writ), the court reviewed the Travel Masters opinion and decided that "a person engaged in a `common calling' is one who performs a generic task for a living, one that changes little no matter for whom or where an employee works." Applying this definition, the court held that the retail manager of a gas company was not engaged in a common calling.
In the instant case, Burkett was a licensed veterinarian prior to working at Cukjati's clinic. In addition to treating animals, Burkett managed the North Irving Animal Clinic. We are unable to hold that a veterinarian/office manager is engaged in a common calling as contemplated by the Texas Supreme Court.
Accordingly, to determine the enforceability of the covenant, we must determine its reasonableness under the Hill standard. At the outset, Hill requires that the covenant be necessary for the protection of the promisee. Hill, 725 S.W.2d at 170-71. That is, Cukjati must have a legitimate interest in protecting business goodwill or trade secrets. Id.
In his affidavits attached as evidence to his motion for summary judgment, Burkett asserts that he did not receive any special training, knowledge or education from Cukjati. Thus, he obtained no trade secrets which Cukjati could legitimately protect. As far as business goodwill, Burkett has not contacted or solicitated any of the approximately 5,000 patrons of the North Irving Animal Clinic. See Martin, 31 Tex. Sup.Ct.J. at 626. ("Customer Information" is neither "special training nor knowledge."). Burkett stated that the forty-five pet owners who followed him to the new clinic were *218 personal friends or members of his church. Although this is testimony from an interested witness, it is clear, positive direct and could have been readily controverted. See Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986) Tex.R.Civ.P. 166a(c). Thus, the testimony is sufficient to support the summary judgment, in that the covenant is not necessary.
The covenant also must not be oppressive to the promisor, i.e., the restrictions as to time, territory and activity must be reasonable. Hill, 723 S.W.2d at 171. The evidence demonstrates that most pet owners travel only a few miles to obtain pet care. Clearly, a twelve mile restriction is unreasonable and unnecessary.
Under Hill, a covenant not to compete must be supported by consideration. Hill, 723 S.W.2d at 171. Additionally, the court wrote that "special training or knowledge acquired by the employee through his employer is valuable consideration." Id. In DeSantis, the court held that because the employee had prior experience and did not obtain special knowledge or training, there was no consideration to support the covenant. DeSantis, 31 Tex.Sup.Ct.J. at 620. Contra Travel Masters, 742 S.W.2d at 841. ("When the execution of a covenant not to compete is contemporaneous with the acceptance of employment, the latter becomes the consideration for the covenant."). Burkett gained no such knowledge or training. Because the covenant is unreasonable, we hold it is unenforceable. Cukjati's first point of error is overruled.
In his second point of error, Cukjati asserts that the trial court's award of attorneys' fees was in error. Cukjati argues that because he "lived up to the letter of the contract" and Burkett did not, the court should not have awarded attorneys' fees to Burkett. Cukjati has failed to cite any authority for his position. However, we will consider this point. See Inpetco, Inc. v. Texas American Bank/Houston, 729 S.W.2d 300 (Tex.1987); TEX.R.APP.P. 83.
Pursuant to the Texas Civil Practice and Remedies Code "the court may award costs and reasonable attorney's fees as are equitable and just." TEX.CIV.PRAC. & REM.CODE § 37.009 (Vernon 1988). Burkett's affidavit in support of attorneys' fees was uncontroverted. The trial court's award was not arbitrary or unreasonable so as to equal an abuse of discretion. Cukjati's second point of error is overruled.
In a crosspoint, Burkett asserts that the trial court erred because it awarded him only part of his requested attorneys' fees. However, such a request for affirmative relief cannot be considered on appeal in the absence of a properly filed bond. Chapman Air Conditioning, Inc. v. Franks, 732 S.W.2d 737, 742 (Tex.App.Dallas 1987, no writ). In any event, as discussed with regard to Cukjati's second point of error, an award of attorneys' fees is within the discretion of the trial court.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569593/ | 29 So. 3d 1186 (2010)
Jose PEREIRA, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-2942.
District Court of Appeal of Florida, Fifth District.
March 12, 2010.
*1187 Jose L. Pereira, Malone, pro se.
Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
PALMER, J.
Jose Pereira (defendant) appeals the trial court's order summarily denying his motion for postconviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that the defendant was entitled to receive an evidentiary hearing on his motion, we reverse.
The defendant was charged with one count of strong arm robbery.[1] The specification of that charge alleged that he
[d]id unlawfully take from the person or custody of KIMBERYLY K. MOWRY, certain property of value, to-wit: United States Currency and a purse, with the intent to temporarily or permanently deprive KIMBERYLY K. MOWRY, of a right to the property or a benefit therefore, and in the course thereof utilized force, violence, assault or put the said KIMBERLY K. MOWRY in fear, in violation of Florida Statute 812.13(1) and (2)(c).
According to the defendant's rule 3.850 motion, "when the jury was charged, in addition to the instruction on robbery, they were instructed on grand theft of a dwelling and petit theft as the lesser-included offenses." Defense counsel did not object to these instructions. The defendant was later convicted of the lesser-included offense of grand theft of a dwelling, value of $100.00 or more but less than $300.00, a third-degree felony.[2] He was sentenced to a term of 10 years' incarceration as a habitual felony offender. On direct appeal, this court issued a per curiam affirmance of the defendant's judgment and sentence. See Pereira v. State, 976 So. 2d 1123 (Fla. 5th DCA 2008).
The defendant thereafter filed the instant rule 3.850 motion. The trial court summarily denied the motion explaining:
Defendant alleges that Counsel was ineffective for failing to object to his conviction for theft from a dwelling, value of $100 or more but less than $300, a lesser included offense, based upon an information which does not allege the elements of the lesser included offense. Defendant was charged with a single count of strong arm robbery. See Fla. Stat. 812.13(1) and (2)(c) and July 16, 2007 Amended Information. The July 16, 2007 Amended Information contains each requisite element of the lesser included offense of theft. See July 16, 2007 Amended Information and compare Fla. Stat. 812.014(1)(a) and (b). Subsection (d) of Fla. Stat. 812.14 merely specifies circumstances pursuant to which the crime of theft is designated a felony in the third degreenot the requisite elements of the crime. As such, Defendant's claim is without merit. Counsel can not be held ineffective for failing to raise a non-meritorious issue.
(Emphasis added).
The defendant challenges this ruling arguing that his trial counsel was ineffective for failing to object to the fact that he was convicted of a crime not charged in the *1188 amended information. In particular, the defendant contends that grand theft of a dwelling was not properly listed as a lesser-included offense on the jury's verdict form because the allegations in the amended information failed to sufficiently allege the elements of grand theft as a lesser-included offense of the charge of strong arm robbery. He maintains that the offense of grand theft of a dwelling includes two elements that are not found within the offense of strong arm robbery: the value of the property taken and the requirement that the property be taken from a dwelling. The defendant cites to Pierce v. State, 641 So. 2d 439, 439 (Fla. 4th DCA 1994), receded from on other grounds by Tolbert v. State, 679 So. 2d 816 (Fla. 4th DCA 1996), to support his claim of error.
In Pierce, the defendant was originally charged with armed robbery; however, the information (as in the instant case) failed to alleged the value of the property taken. At the charge conference, defense counsel objected to the issuance of jury instructions on any lesser-included offenses. The trial court overruled the objection and instructed the jury on the lesser-included offense of grand theft. The court further instructed the jury that the crime of grand theft required the jury to determine that the value of the property taken exceeded $300.00. The jury convicted the defendant of grand theft. On appeal, the Fourth District reversed, holding:
It is only where the charging document sufficiently alleges the appropriate value that grand theft becomes a permissive lesser included offense of the charge of robbery. 512 So.2d at 1074-1075. Where the only charge is robbery, the state can preserve its right to a lesser included conviction for grand theft only by including in the information an allegation that sufficiently states the value of the property taken. 512 So.2d at 1075 (value of property taken must be clear from accusatory pleading).
Although the information in this case listed the kinds of propertyincluding the word "money"taken by the robbery, it failed to state the amount of the cash or, indeed, ascribe any value to anything taken. There is simply nothing in this information that makes clear any values. As we said in In the Interest of E.W., 616 So. 2d 1194 (Fla. 4th DCA 1993), where we followed J.C.B.:
"A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or other exceptional circumstance."
Both E.W. and J.C.B., we note, involved a conviction for the lesser included crime of grand theft and a charging document that failed to state the value of the goods stolen.
We agree with the defendant that, based on this authority, his rule 3.850 claim should not have been summarily denied.
Importantly, our conclusion does not mean that the defendant is entitled to have his judgment corrected to reflect a conviction on the lesser-included offense of petit theft. Rather, since he argued that his trial counsel was ineffective in allowing the crime of grand theft of a dwelling to be included in the jury instructions, on remand the trial court must determine whether it was a strategic decision on the part of trial counsel to allow this lesser-included offense to go to the jury. See Howard v. State, 835 So. 2d 281, 283 (Fla. 2d DCA 2002)(stating: "a trial court's finding that some action or inaction by defense counsel was tactical is generally inappropriate without evidentiary hearing."). See also Mallard v. State, 17 So. 3d 1285 (Fla. *1189 4th DCA 2009); Coissy v. State, 957 So. 2d 53, 55 (Fla. 4th DCA 2007).
Accordingly, we reverse and remand for an evidentiary hearing to determine whether trial counsel's failure to object to the inclusion in the jury instructions of the lesser-included offenses constituted ineffective assistance of counsel.
REVERSED and REMANDED.
GRIFFIN and COHEN, JJ., concur.
NOTES
[1] See § 812.13, Fla. Stat. (2006).
[2] See § 812.014(2)(d), Fla. Stat. (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568763/ | 772 S.W.2d 819 (1989)
James CRAWFORD, et al., Plaintiffs-Respondents,
v.
WHITTAKER CONSTRUCTION, INC., et al., Defendants-Appellants.
No. 54549.
Missouri Court of Appeals, Eastern District, Division Five.
May 9, 1989.
Motion for Rehearing and/or Transfer Denied June 7, 1989.
Application to Transfer Denied August 1, 1989.
*820 Joseph H. Guffey, Alene V. Haskell, Mark G. Arnold, and Elizabeth Anderson, St. Louis, for defendants-appellants.
Robert E. Morley, O'Fallon, for plaintiffs-respondents.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 7, 1989.
CARL R. GAERTNER, Judge.
Plaintiffs, James and Norma Crawford, purchased a newly constructed home from defendant Whittaker Construction, Inc. Soon after plaintiffs occupied the house certain defects appeared. When efforts by defendants to correct some of these defects were unsatisfactory to plaintiffs, they instituted this action against Whittaker Construction, Inc., its president, and a salesman-employee, seeking to recover $7,500 as the diminution of value of the home on the theory of a breach of the implied warranty of habitability or fitness.[1] After a jury-waived trial the court entered judgment in favor of plaintiffs and against all defendants in the sum of $7,500. Defendants appeal. We affirm in part and reverse in part.
Plaintiffs alleged three specific defects as the cause of the reduced value of their home;
(A) The lot was improperly filled and graded causing the yard and driveway to sink, crack and become useless;
(B) The concrete stoop was improperly poured and finished causing it to become unsightly;
(C) The kitchen counter top was defective by reason of holes and nicks located therein.
The evidence established the existence of three chips in the surface of the kitchen counter top and that the defendants' attempt to fill these chips with epoxy did not last more than two weeks. A chip in the concrete surface of the front stoop was filled by defendant but remained discolored and unsightly. The major problem related to the sinking of the ground under the driveway and in various areas of the front yard. Defendants replaced two slabs of the driveway but these and two other slabs also sank leaving cracks in the concrete and misalignment 1½ inches deep between slabs. Plaintiffs' expert testified it was only a matter of time before the driveway collapsed. Two troughs appeared in the front lawn, varying in depth between 12 and 18 inches. A hole developed near a flower bed 18 inches deep and 44 inches wide. Plaintiffs' expert testified that these depressions resulted from the failure of the plumbing subcontractor to properly backfill the trenches excavated for sewer pipes. He testified that when the dirt was replaced *821 over the pipes it was not tamped or compacted with sufficient densification to prevent settling and that further settling would continue for several more years.
Plaintiff James Crawford expressed his opinion that the value of his home was diminished in the sum of $7,500 because of these defects. Plaintiffs' introduced no evidence relating to the cost of repairs. Defendants' evidence was that the counter top chips could be repaired for $25, the concrete stoop replaced for $100, and the driveway could be supported by "mud-jacking" at a cost of $700.
An implied warranty of habitability in favor of the purchaser of a newly constructed home was first enunciated in Missouri in the case of Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo.banc 1972). The significance of the Old Warson decision was described as "its extension of the warranty [of merchantability] by analogy to the sale of a completed new home." O'Dell v. Custom Builders Corp., 560 S.W.2d 862, 870 (Mo.banc 1978). The warranty thus requires that the newly constructed residence be reasonably fit for the ordinary purposes for which it is used. Id.
On appeal defendants first contend plaintiffs failed to make a submissible case on a theory of breach of implied warranty because of an express disclaimer of all implied warranties in the sale contract. This contention is predicated upon the following provisions which appear on the face of the sale contract signed by plaintiffs.
HOME OWNERS WARRANTY COVERAGE: Seller participates in the Home Owners Warranty Program. Seller will provide Purchasers with a written warranty in the form of a home warranty/limited warranty as prescribed by the Home Owners Warranty Corporation (HOW). The warranty provided through HOW includes a limited warranty for the first two years by the Seller, backed by HOW, and eight (8) additional years of insured protection against major structural defects, as defined in the home warranty documents. The terms of the home warranty/limited warranty are incorporated by reference in this Sale Contract, and are a part of its terms. Seller makes no warranties or other representations concerning the residence sold hereunder, other than as expressly set forth in the terms of the home warranty/limited warranty incorporated herein. Any other representations, are unauthorized and are not binding upon Seller. ALL OTHER WARRANTIES WITH RESPECT TO THE RESIDENCE SOLD HEREUNDER ARE HEREBY DISCLAIMED, TO THE EXTENT PERMITTED BY LAW, WHETHER IMPLIED OR ARISING BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM AND PRACTICE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, HABITABILITY, MERCHANTABILITY, AND FITNESS FOR PURPOSE. PURCHASERS REPRESENT THAT PURCHASERS HAVE READ AND UNDERSTOOD THIS PROVISION, AND THAT PURCHASERS UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS CONTRACT AND ACCEPTING THE BENEFITS OF THE HOME WARRANTY/LIMITED WARRANTY INCORPORATED HEREIN, PURCHASERS HAVE KNOWINGLY RELINQUISHED ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE.
The Home Warranty/Limited Warranty (hereafter the HOW warranty) referred to is a 22 page document which in some respects adds to the implied warranty rights of a purchaser and in other respects severely limits such rights. Particularly significant to this case are the exclusion in the HOW warranty of driveway defects and the limitation of the builder's responsibility of repairing ground settlement to a single fill of settled areas during the first year while the owner remains responsible for replacement of sod, shrubs and other landscaping.
An issue regarding a possible disclaimer of the implied warranties was touched upon in Old Warson, but not established under the facts of that case. 479 S.W.2d at 800. In Crowder v. Vandendeale, 564 S.W.2d *822 879, 881 (Mo.banc 1978) the question of disclaimer or modification of implied warranties was directly addressed. The Supreme Court concluded that although the parties have a right to make their own bargain as to economic risk, the burden of proving the fact of a bargain intended to vary implied warranty terms was great.
As indicated by analysis in Old Warson, one seeking the benefit of such a disclaimer must not only show a conspicuous provision which fully discloses the consequences of its inclusion but also that such was in fact the agreement reached. The heavy burden thus placed upon the builder is completely justified, for by his assertion of the disclaimer he is seeking to show that the buyer has relinquished protection afforded him by public policy. A knowing waiver of this protection will not be readily implied. (emphasis in original) Crowder, 564 S.W.2d at 881, n. 4.
The Crowder court added that for the purpose of demonstrating the fact of a bargain to vary implied warranty terms "boilerplate clauses, however worded, are rendered ineffective...." Id. at 881.
With these admonitions in mind, we look to the record for evidence in support of defendants' burden of proving the substitution of the express HOW warranty for the implied warranties was in fact a bargained agreement between the parties. Other than the boilerplate clause set forth above, which Crowder tells us is ineffective for this purpose, we find no such evidence. The word "bargain", as a noun is defined as "a discussion of terms of an agreement" and, as a verb, as "to negotiate over the terms of an agreement or contract." Webster's Third New International Dictionary, Unabridged, 1981. The record is devoid of any evidence regarding a discussion or negotiation of terms regarding warranties. James Crawford was not questioned regarding the sales contract and defendant Kelly Flatley, the agent who apparently negotiated the terms of the sales contract with plaintiffs, did not testify. In their briefs plaintiffs state that they were not given the 22-page HOW warranty before the execution of the sales contract. This affirmation is neither supported nor refuted by the record and we therefore disregard it. This provides no solace for defendants, however, since it is their burden to establish the fact of a bargained agreement. The silence of the record regarding when, if ever, the 22-page document was given to plaintiffs is just as damning to defendants as if the evidence supported plaintiffs claim. The absence of evidence that plaintiffs knew what they were receiving in return for what they were giving up unerringly illustrates the failure to prove that plaintiffs knowingly relinquished the protections afforded them by public policy. The teaching of Crowder is clear: One asserting a disclaimer of the warranties implied by public policy in a new home purchase must establish that such protections were knowingly relinquished as a result of a bargain in fact, i.e. an agreement reached through discussion and negotiation, and boilerplate clauses in a form contract alone do not establish these requirements. Defendants first point on appeal is denied.
Defendants second point charges trial court error in awarding plaintiffs' damages in the amount of $7,500 because, defendants argue, the proper measure of damages is the cost of repairs, $825. Defendants accurately state the general rule that the proper measure of damages in this situation is "whichever is lower, as between the cost of repair and the diminution of value (diminution meaning the difference in value of the house if it had been constructed properly compared with its actual value as constructed.)" Ribando v. Sullivan, 588 S.W.2d 120, 124 (Mo.App. 1979). The rationale underlying this rule is that plaintiffs are entitled to recover as damages only a sum which is equivalent to performance of the bargainto be placed in the position they would have been in if the contract had been fulfilled in a workmanlike manner. Steffens v. Paramount Properties, Inc., 667 S.W.2d 725, 727-28 (Mo.App.1984).
Defendants argue that the court erred in accepting plaintiffs' James Crawford's opinion that the defects caused a diminution *823 in value of his home in the amount of $7,500 because defendants evidence of repair cost in the sum of $825 dollars is uncontradicted. For several reasons we find no merit in this argument.
In Missouri the courts have traditionally indulged in the concept that a home owner is qualified to express an opinion upon the diminution in value in his property. Such an expression of opinion is admissible and of probative value. Esmar v. Zurich Ins. Co., 485 S.W.2d 417, 424 (Mo.1972); Kaiser v. Kadean Const. Co., 719 S.W.2d 892, 896 (Mo.App.1986). The weight and value given to such opinion, of course, is left to the discretion of the fact-finder. Thus, the trial court's assessment of damages has evidentiary support.
The trial court was not bound to accept defendants' evidence of repair cost because, among other reasons, this evidence did not establish that all of the defective conditions could be repaired for the $825 amount suggested by defendants' evidence. The sums comprising this amount, supplied by defendants' manager of cost estimating, included $700 for "mud-jacking" under the concrete driveway slabs, $100 for replacing the chipped concrete stoop, and $25 for re-epoxying the counter top chips. The evidence was undisputed that the last item was merely a repetition of a remedy which has totally failed once before. Plaintiffs' evidence was that "mud-jacking" would not successfully remedy the driveway problem because of continued subsidence and because the cracks in the concrete would remain. Nothing is included in defendants' $825 figure for repairing the trenches and holes in the lawn and gardens. The fact-finder is free to reject evidence regarding the cost of repairs which fails to establish that the proposed repairs would fully and completely restore the property. Nelson v. Missouri Hghwy, & Trans. Comm'n, 734 S.W.2d 521, 523-34 (Mo.App.1987). Moreover, where there is contradictory testimony regarding the adequacy of proposed repairs to satisfactorily remedy the defects, the fact-finder may accept either opinion and we may not second guess this decision on appeal. Schulze v. C & H Builders, 761 S.W.2d 219, 223-24 (Mo.App.1988).
Finally, we agree with defendants' contention that the trial court erred in entering judgment against the individual defendants, Robert Whittaker, the president of the defendant corporation and Kelly Flatley, its sales agent. Count II of plaintiffs' petition seeking recovery against all three defendants for alleged fraud was dismissed. Count I, on which plaintiffs were successful, sought damages based upon breach of the implied warranty of habitability, a contract action. Crowder v. Vandendeale, 564 S.W.2d at 881. No contractual relationship existed between plaintiffs and the individual defendants, agents of a disclosed principal.
Accordingly, the judgment in favor of plaintiffs and against defendant Whittaker Construction, Inc., is affirmed. The judgment in favor of plaintiffs and against defendants Robert Whittaker and Kelly Flatley is reversed.
PUDLOWSKI, C.J., and SIMEONE, J., concur.
NOTES
[1] In a second count plaintiffs sought actual and punitive damages based upon alleged fraudulent concealment of defendants' intent not to honor implied warranties. This count was dismissed by the trial court at the close of plaintiffs' evidence. No appeal has been taken from the dismissal of this count. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568858/ | 29 So. 3d 511 (2009)
Deborah C. PERRILLOUX
v.
FIRST GUARANTY BANK and Stone Trust Commercial Insurance Company.
No. 2009 CA 0054.
Court of Appeal of Louisiana, First Circuit.
October 9, 2009.
*512 John P. Murrill, Baton Rouge, LA, for Appellant, First Guaranty Bank and Stone Trust Commercial Insurance Company.
*513 Robert A. Lenter, Metairie, LA, for Appellee, Deborah C. Perrilloux.
Before PARRO, DOWNING and GAIDRY, JJ.
DOWNING, J.
In this workers' compensation claim, the employer, First Guaranty Bank and its insurer, Stone Trust Commercial Insurance Co., (hereinafter "Stonetrust"), seek review of a judgment rendered in favor of the employee, Deborah C. Perrilloux. For the following reasons, we amend in part, and affirm as amended the Office of Workers' Compensation (WCJ) judgment.
The WCJ found that Ms. Perrilloux sustained a compensable work-related injury to her left knee on February 1, 2007. The WCJ found that she was entitled to temporary total disability (TTD) benefits at the maximum rate of $478.00 per week, retroactive to October 16, 2007, to continue until modification was warranted; it also ordered Stone Trust to pay for Ms. Perrilloux's left-knee revision surgery. The judgment assessed Stonetrust with $2,000.00 in penalties and $2,000.00 in attorney fees for its failure to timely institute TTD benefits. It was also penalized an additional $2,000.00 in penalties and $2,000.00 in attorney fees for failing to approve the left-knee revision surgery.
Stonetrust appealed, alleging that the WCJ erred in ruling that the knee surgery was related to Ms. Perrilloux's work injury and erred in awarding the maximum TTD benefits. Stonetrust also assigned error to the penalty and attorney fee awards.
BACKGROUND
On August 20, 1998, Ms. Perrilloux began working at First Guaranty Bank. On February 1, 2007, the chair on which she was seated in the bank patio collapsed, causing injury to her left knee. Ms. Perrilloux remained off work until Dr. Fambrough, an orthopedic surgeon, released her to return on March 13, 2007. She was paid full benefits during this time. Shortly thereafter, Ms. Perrilloux complained of pain in her right knee; she left work on April 14, 2007, and never returned to the job.
Years prior to the accident, Ms. Perrilloux had undergone knee replacement surgery on both knees. Dr. Fambrough had replaced the right knee in 1997 and the left knee in 2002. After Ms. Perrilloux was discharged from Dr. Fambrough, she did not visit him again until she sought treatment for her left knee after the accident. On February 5, 2007, while Dr. Fambrough was treating Ms. Perrilloux's injured left knee, he determined that her right knee needed revision surgery which was unrelated to the work-related accident. Shortly thereafter, Ms. Perrilloux began complaining of renewed pain in her left knee. Dr. Fambrough recommended she have a similar revision surgery on he left knee; his report did not mention if he thought the left knee problems were related to the work-accident.
Ms. Perrilloux requested a switch in treating physicians. Stonetrust approved her switch to Dr. Roch Hontas at the Tulane Medical Center. She saw Dr. Hontas on July 5, 2007. After the examination, Dr. Hontas concluded that it was reasonable to assume that the work-related accident triggered her current symptoms to the point that the left-knee revision procedure should be considered. On August 8, 2007, Dr. Hontas recommended that Ms. Perrilloux have revision surgery on her left knee.
Stonetrust requested an independent medical examination (IME) with Dr. Joseph Morgan, a Baton Rouge orthopedic surgeon. Dr. Morgan reported that Ms. Perrilloux's left knee problems appeared *514 to be "more of a wear and tear situation" than a result of the accident. Stonetrust denied surgery benefits; Ms. Perrilloux filed a claim. Stonetrust avers that it denied the claim based upon Dr. Morgan's adverse report and also because Ms. Perrilloux told Dr. Hontas that her left knee was "asymptomatic" prior to the accident. Stonetrust alleges that this false information from Ms. Perrilloux led Dr. Hontas to conclude that the revision surgery needed to repair the left knee was caused by the accident.
CAUSATION
In Stonetrust's first assignment of error it contends that Ms. Perrilloux failed to introduce sufficient evidence to connect her left-knee surgery to the February 2007 work-related accident. Stonetrust argues that the only medical evidence to connect this surgery to the accident was Dr. Hontas's report that it claims was "unquestionably insufficient" since it was based on Ms. Perrilloux's allegedly inaccurate chronicle. We disagree. A careful reading of Dr. Hontas's report indicates that Ms. Perrilloux told him that she experienced "fairly immediate left knee pain" at the time of the accident, but "was doing very well with her knees prior to this event." The report also states a substantiated fact that, up until the accident, Ms. Perrilloux had not returned to Dr. Fambrough because she was essentially pain free. Dr. Hontas did conclude that the thinning knee replacement components predated the work injury but the revision procedure would probably now be needed sooner rather than later.
Dr. Hontas's report stated that Ms. Perrilloux was "completely asymptomatic prior to the accident," but however, it did not say that this was the only factor he considered in concluding that her left-knee pain was caused by the accident. Moreover, Ms. Perrilloux clarified the "asymptomatic" assertion when she testified that both knees had given her pain since her first knee replacement in 1997. She also explained that prior to the accident, she was still mobile. She said that although it was painful, prior to the accident she was nimble enough to dance. This assertion is bolstered by the fact that she had not sought Dr. Fambrough's treatment since being released in 2002.
Further, Dr. Fambrough noted on February 5, 2007, that Ms. Perrilloux was having considerable pain in her left knee and that "she most likely has sustained a fairly severe contusion in this area." He noted on the follow-up visit that she was still having pain and still lacked about 10 degrees of full extension in the left knee. Moreover, the record indicates that knee replacements generally last about ten years before a revision is necessary. Ms. Perrilloux's left knee was totally replaced by Dr. Fambrough in 2002. It is therefore reasonable for the WCJ to conclude that the revision surgery is now needed "sooner rather than later," as noted by Dr. Hontas, because of the accident.
Here, the WCJ was informed of Ms. Perrilloux's inconsistent report to Dr. Hontas. Based on the medical evidence and the witness' credibility, the WCJ still concluded that Ms. Perrilloux suffered a work-related injury to her left knee and ordered Stonetrust to approve the revision procedure as recommended by Drs. Hontas and Fambrough. The trier of fact's finding regarding causation is a factual finding that is given great deference and is reviewed under the manifest error standard. Peters v. Harmsen, 03-1296, p. 7 (La.App. 1 Cir. 4/2/04), 879 So. 2d 157, 161. To be entitled to benefits, the claimant must establish a causal link between the accident and the disabling condition. Meneses v. IFCO Systems, Inc., 04-1686, *515 p. 8 (La.App. 1 Cir. 9/23/05), 923 So. 2d 111, 116. When an employee suffered from a pre-existing medical condition, he may still meet his burden of proving causation, if he can show that the accident aggravated, accelerated or compounded the condition to produce a compensable disability. Id. Although we may have reached a different result, we cannot conclude that the WCJ's determination regarding this issue was manifestly erroneous. Accordingly, this assignment of error is without merit.
TEMPORARY TOTAL DISABILITY BENEFIT
Stonetrust assigned error to the WCJ's award of $478.00 in weekly TTD benefits to Ms. Perrilloux when her stipulated wage was only $534.82.
An employee declared to be temporarily totally disabled is entitled to sixty-six and two-thirds percent of his/her wages during the period of disability. La. R.S. 23:1221(1)(a). Here, the parties agreed and stipulated that Ms. Perrilloux's weekly wages were $534.82 per week. The correct TTD benefit, then, would be $356.55. This assignment of error has merit, and we accordingly will amend the judgment to reflect the correct amount.
PENALTIES AND ATTORNEY FEES
Stonetrust contends that the attorney fee and penalty awards assessed against it were in error because it reasonably controverted Ms. Perrilloux's claims based on her being released from her doctor and having returned to work, her prior use of narcotic analgesics, and Dr. Morgan's opinion that her left knee surgery was unrelated to the work-related accident.
Louisiana Revised Statutes 23:1201(F) covers situations where the employer fails to commence payment of benefits or to pay medical benefits timely. Under this section, both penalties and attorney fees are recoverable unless the claim is reasonably controverted. A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So. 2d 885, 890.
The thrust of Stonetrust's argument is that it should not be penalized when its investigation indicated that, prior to the work-related accident, Ms. Perrilloux was taking large amounts of narcotic analgesic medication and had undergone total knee replacement on both knees. Stonetrust further contends that based on Dr. Morgan's opinion that her left knee surgery was unrelated to the accident, it was reasonable to controvert her claim for compensation for the time she missed work after having that surgery.
To escape the penalty and attorney fee provision of the statute, the employer must have sufficient factual or medical information to counter evidence presented by the claimant. Brown, 98-1063 at p. 9, 721 So.2d at 890. The employer or compensation insurer has a duty to investigate and make every reasonable effort to assemble and assess factual and medical information in order to ascertain whether the claim was compensable before denying benefits. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 17 (La.App. 1 Cir. 1/6/99), 733 So. 2d 11, 25. Stonetrust claims that it based its refusal to allow Ms. Perrilloux's surgery on Dr. Morgan's report that her left knee problems were caused by normal wear and tear, even though Dr. Hontas's report stated otherwise. An employer may not avoid penalties and attorney fees by blindly relying on an optimistic medical report in the face of information indicating the possibility *516 of continuing disability. Roussell v. St. Tammany Parish School Board, 04-2622, p. 19 (La.App. 1 Cir. 8/23/06), 943 So. 2d 449, 463.
As discussed above, we find no error in the WCJ's holding that Ms. Perrilloux's present left knee injury arose from a work-related incident. We further conclude that the WCJ did not err in finding that Stonetrust did not reasonably controvert Ms. Perrilloux's claim because as discussed in Parfait and Roussell, the employer has an obligation to fully investigate conflicting reports before it denies the claimant relief.
The imposition of penalties and attorney fees for the refusal to pay workers' compensation benefits presents a factual question that will not be disturbed upon review absent manifest error. Billiot v. Wal-Mart Stores, Inc., 03-2451, p. 4 (La. App. 1 Cir. 10/29/04), 897 So. 2d 64, 67. We conclude that the WCJ did not err in imposing the penalties authorized under La. R.S. 23:1201(F). The penalties imposed by the WCJ were within the statutory limits, and the attorney fees awarded were not an abuse of discretion. This assignment of error is without merit.
DECREE
After a thorough review of the record, we conclude that the WCJ did not err in finding that Ms. Perrilloux sustained a work-related injury to her left knee. Nor did it err in finding she was entitled to penalties and attorney fees for Stonetrust's failure to timely institute TTD benefits and its failure to approve her knee revision surgery. The WCJ did err, however, in calculating her rate of temporary total disability benefit, which is hereby reduced to $356.55 per week. The WCJ judgment is therefore amended to reflect that Deborah C. Perrilloux's correct temporary total disability calculation is $356.55 weekly. This memorandum disposition is rendered in accordance with Uniform RulesCourts of Appeal, Rule 2-16.1 B. First Guaranty Bank and its insurer, Stonetrust Commercial Insurance Co. are assessed with the costs of these proceedings.
AMENDED IN PART AND AFFIRMED AS AMENDED.
GAIDRY, J., concurs.
PARRO, J., concurs in part and dissents in part and assigns reasons.
PARRO, J., concurring in part and dissenting in part.
Because I believe that the claim for benefits related to her left knee revision surgery was reasonably controverted by the defendants, I would reverse the award of penalties and attorney fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568604/ | 10 So.3d 252 (2009)
Ronald ELLIS
v.
RESOURCE TRANSPORTATION, et al.
No. WCA 08-1150.
Court of Appeal of Louisiana, Third Circuit.
March 4, 2009.
*253 Robert Blaine Purser, Purser Law Firm, Opelousas, LA, for Defendants/Appellants, National Loss Control Management, Inc. And Resource Transportation.
Christopher Cameron McCall, Baggett, McCall, Burgess, Watson and Gaughan, Lake Charles, LA, for Plaintiff/Appellee, Ronald Ellis.
Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
EZELL, Judge.
In this workers' compensation matter, the employer and insurer appeal the award of penalties and attorney fees for nonpayment of medical expenses and failure to authorize treatment. For the following reasons, we affirm.
FACTS
Ronald Ellis was injured by a lightening strike on July 8, 2004, while working as a truck driver for Resource Transportation. On December 14, 2006, Mr. Ellis filed a disputed claim form. Subsequently, on July 24, 2007, a letter was sent to counsel for Resource Transportation and its insurer, National Loss Control Management. The letter outlined the medical expenses that had not been paid and the medical treatment that had not been approved. At that time, a settlement agreement was entered into in which the Defendants agreed to pay the outstanding bills and approve the recommended treatment as outlined in the letter.
On October 23, 2007, Mr. Ellis filed a motion to enforce the settlement and requested penalties and attorney fees. A hearing was held on December 12, 2007. The trial court concluded that there was a signed agreement to authorize the payments and visits as outlined in the July 24, 2007 letter and ordered all approved medical treatment be authorized in addition to payment of all outstanding medical bills. Penalties and attorney fees were to be discussed at a later hearing.
The hearing on penalties and attorney fees was held on March 3, 2008. An affidavit of the work performed by the attorney for Mr. Ellis was introduced into the record. Additionally, the July 24, 2007 *254 letter indicating the medical expenses and medical treatment that had been agreed to was introduced. At the time of the hearing, most of the expenses had not been paid, and the medical treatment had not been authorized.
On June 5, 2008, a final judgment was signed. Mr. Ellis was awarded penalties in the amount of $8,000 and attorney fees in the amount of $6,250. Defendants were also ordered to pay all costs of the proceedings.
PENALTIES AND ATTORNEY FEES
Louisiana Revised Statutes 23:1201(E) provides: "Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof." However, the employer or insurer is not liable for penalties or attorney fees for failure to timely pay medical benefits when the claim has been reasonably controverted or the nonpayment results from conditions over which the employer had no control. La. R.S. 23:1201(F)(2).
Whether an employer or insurer should be cast with penalties and attorney fees is a question of fact which is subject to the manifest error or clearly wrong standard of review. Smith v. Morris & Dickson, 05-1120 (La.App. 3 Cir. 3/1/06), 924 So.2d 1217, writ not considered, 06-841 (La.6/2/06), 929 So.2d 1240.
The Defendants argue that the bills have not been paid because they were not submitted with the proper CPT Codes and corresponding medical reports. No evidence was introduced at the hearing on this matter to support this claim. However, it appears from the Defendants' brief that correspondence requesting the information was not sent to the medical providers until January 7, 2008. This is five months after Defendants agreed to pay outstanding medical bills and authorize treatment as outlined in the July 24, 2007 letter. Furthermore, no explanation has been offered as to why the Defendants have not authorized the recommended medical treatment as set forth in the July 24, 2007 letter, which they had already agreed to approve. The Defendants were well over sixty days after the agreement had been reached before indicating that they needed additional information to pay the bills.
In Newson v. Richard Spurgeon Masonry, 03-1367 (La.App. 3 Cir. 3/3/04), 867 So.2d 78, writ denied, 04-839 (La.5/14/04), 872 So.2d 523, this court found that payment of a submitted medical bill after sixty days of the submission of the bill to the employer but within sixty days of a request for medical records by the employer was improper. We cited Roque v. Shell Beach Trucking, 02-1305 (La. App. 3 Cir. 5/7/03), 844 So.2d 1111, which held that the request for medical records should be done in a prompt manner within the sixty-day time period of La.R.S. 23:1201(E). In the present case the Defendants agreed to pay the bills and authorize medical treatment. No efforts toward paying bills or authorizing medical treatment were made until after the first hearing in December 2007, approximately four-and-one-half months after the agreement. We find no error in the workers' compensation judge's decision that penalties and attorney fees are appropriate in this matter.
The Defendants also contend that the workers' compensation judge should have specifically stated which medical expenses were the subject of the penalties and attorney fees award. They request that this court remand the matter so the workers' compensation judge can clarify his ruling. At issue in this case was the failure of the Defendants to approve the medical treatment *255 and expenses as outlined in the July 24, 2007 letter. It is clear that the workers' compensation judge's award of penalties and attorney fees to Mr. Ellis were for the items as detailed in the letter which Defendants had approved and agreed to pay. We do not find it necessary to remand this matter for clarification.
For the reasons set forth in this opinion, the judgment of the workers' compensation judge is affirmed. All costs of this appeal are assessed to Resource Transportation and National Loss Control Management Insurance Company.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568848/ | 772 S.W.2d 663 (1989)
Rhonda KEESEE, Appellant,
v.
Ray FREEMAN, William Stupps, and The Kansas City Royals Baseball Corporation, Respondents.
No. WD 40283.
Missouri Court of Appeals, Western District.
April 4, 1989.
Motion for Rehearing and/or Transfer Denied May 30, 1989.
Application to Transfer Denied August 1, 1989.
*665 Allan J. Fanning, Kansas City, for appellant.
Joseph A. Sherman, and Kevin Locke, Sherman, Wickens, Lysaught & Speck, P.C., Kansas City, for respondents.
Before NUGENT, P.J., and SHANGLER and CLARK, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 1989.
CLARK, Judge.
Rhonda Keesee sued the Kansas City Royals Baseball Corporation and two police officers, Ray Freeman and William Stupps, for injuries Keesee sustained when she was abducted after being ejected from the ballpark. The cause was submitted to a jury on the theory that defendants were negligent in abandoning Keesee in the public parking lot when she was not reasonably able to protect herself because of the state of her intoxication. The jury returned a verdict for defendants and Keesee has appealed.
A brief statement of the facts will suffice to put the points on appeal in proper context. On May 19, 1984, Keesee and other employees of a nursing home attended a company picnic and after that concluded, the group went to a night baseball game at Royals Stadium. Keesee consumed intoxicating beverages at the picnic and continued drinking beer at the ballpark. The group had been told they were not permitted to bring beer into the ballpark but several, including Keesee, did so. At some point during the game, Keesee was ascending an aisle on her way to the bathroom when she was confronted by two officers, Freeman and Stupps. Keesee was carrying a can of beer in her pocket. The officers ejected Keesee for this infraction. When last seen, Keesee was outside a fence which separates the seating area and playing field from the parking lot.
At some point after Keesee had been escorted from the Royals Stadium, the location of which was disputed by the evidence, Keesee was abducted by several men and was sexually abused. In the course of the encounter, she passed out and was later found in a public park at about 10:00 p.m., some two hours after she had been ejected from the ballpark. She was later treated at a hospital for her injuries.
On this appeal, Keesee presents seven points of alleged trial error. The first two arise because of the procedure adopted by the trial court to resolve the question of whether Freeman and Stupps as police officers employed for security purposes at the Royals Stadium were protected against liability to Keesee by official immunity. By a pre-trial stipulation, the parties agreed that the issue of official immunity presented a question of law to be decided by the court with the instructions to the jury to be framed accordingly. To decide the issue, however, it was necessary for the court to hear the evidence relative to the officers' conduct and employment as well as the details of the events in which Keesee was involved.
Over protests by appellant, the court decided that a separate evidentiary hearing at which the jury would not be present would be unnecessarily burdensome. Instead, the court directed that the trial proceed before the jury on the understanding that before submission, the court would render its decision on the immunity question. That procedure was followed and when the evidence had been presented, the court ruled that Freeman and Stupps were not protected by official immunity. The verdict directing instructions made no mention of immunity and hypothesized the acts of Freeman and Stupps as those of agents and employees of the Royals. Respondents were not permitted to argue the question of immunity.
In her first point, Keesee contends the court should have heard the evidence on the immunity issue outside the presence of the jury. She argues that the evidence which the jury heard permitted the jury to find, notwithstanding the court's ruling to the contrary, that Freeman and Stupps were acting as police officers and were therefore held to a reduced standard of care when dealing with a person who was disobeying the law. As Keesee *666 sees the result in the case, she attributes the verdict to special consideration the jury gave Freeman and Stupps as police officers and, derivatively, to the Royals as their employer.
The trial court is invested with considerable discretion in matters pertaining to the conduct of a trial. An appellate court may not interfere with the exercise of such discretion unless it clearly appears that the discretion has been abused. Holt v. Queen City Loan and Investment, Inc., 377 S.W.2d 393, 401 (Mo.1964). In this case, the evidence on the immunity issue came from a number of the witnesses and, had the question been considered in a separate hearing outside the presence of the jury, the trial would have been substantially prolonged. It was well within the court's discretion to eliminate this duplication of evidence and handle the matter as it did.
Appellant is also unable to prevail on the point because there is no showing on the record, apart from the verdict itself, that she suffered any prejudice because of the trial format. Under the plaintiff's verdict directing instruction, the jury was called upon to decide whether Freeman and Stupps had exercised ordinary care for Keesee's well being, taking account of Keesee's apparent state of intoxication and the potential danger to her in the parking lot. The instructions gave no credit or benefit to the defendants because Freeman and Stupps were police officers nor was the plaintiff's cause diminished by reason of any offenses against statutes or ordinances she may have committed.
The argument for prejudice rests entirely on the assumption that the jury ignored the court's instructions and decided the case wholly on an issue which was not submitted and which the court had expressly ruled in Keesee's favor. That hypothesis depends on nothing more than speculation and conjecture drawn from a verdict adverse to Keesee. The verdict is properly evaluated against a claim of prejudice by considering the result in the light of issues submitted by the verdict directing instruction and the evidence which bore on those issues. If the verdict is supported by evidence on the questions the jury was instructed to decide, then speculation that the verdict was attributable to some other factor not appearing in the record cannot sustain the claim of prejudice.
One of the contested issues in the case was the extent of Keesee's intoxication. According to Keesee, she was highly intoxicated, stumbling and falling down. Other witnesses testified that although Keesee had been drinking, she appeared to have her faculties about her and was able to take care of herself. Under the instructions, the jury could not return a verdict for Keesee unless it found that she was intoxicated to the extent that she could not protect herself from an attack and that Keesee's appearance was such that the officers knew or should have known of that condition. On evidence consistent with the verdict and the instructions, the jury could well have found, that Freeman and Stupps were under no duty to safeguard Keesee in the process of ejecting her from the stadium because Keesee was, or appeared to be, able to take care of herself.
A second issue in the case was the location where Keesee's abduction occurred. According to Keesee, she was taken by men in the Royal's parking lot. Other evidence, including statements Keesee herself gave the night of the event to a police officer and to the physician who treated her at the hospital, was that she was hitchhiking on a highway outside the ballpark and was assaulted by men who stopped to give her a ride. On this evidence, the jury could have decided in conformity with the instructions that the officers and the Royals were not liable because Keesee was not abducted or attacked on premises the Royals controlled.
As the foregoing analysis demonstrates, the verdict in this case was consistent with the jury instructions and the evidence supportive of that verdict. Prejudice may not be shown on the unsubstantiated claim that the jury ignored the court's instructions and decided the case on issues not submitted. The claim is denied.
In the second related point, Keesee contends the court erred when it refused to *667 give withdrawal instructions on the evidence which related to the official immunity question. She argues that the withdrawal instructions were required because the evidence injected false issues into the case and created a potential for the jury to favor Freeman, Stupps and the Royals because the conduct complained of was that of policemen enforcing the law.
This contention depends, again, on the unsupported assumption that the jury decided the case on extraneous issues and ignored the issues submitted by the court's instructions. That claim has already been rejected. Moreover, the question of whether a withdrawal instruction is to be given depends on whether there is a reasonable likelihood that the jury will be confused or misled by the evidence sought to be withdrawn. That decision is left to the sound discretion of the trial court. Weisbach v. Vargas, 656 S.W.2d 797, 799 (Mo.App. 1983). For the reasons already given, we do not find that the trial court abused its discretion in refusing to give the tendered withdrawal instructions.
Appellant's third point asserts that the trial court erred in accepting an incomplete verdict from the jury. The claim is based on the fact that although the jury indicated on the form its decision for the defendants, it did not write in, on the line provided, the names of the defendants. Complaint is also made that the court mistakenly announced the verdict as that of nine jurors when in fact it was signed by only eight.[1]
The claim that the omission of the defendants' names from the verdict form rendered the verdict ambiguous, incomplete and defective is not tenable. When considering the requisites of an adequate verdict, the court must construe it liberally so as to give the verdict effect if possible. Campbell v. Kelley, 719 S.W.2d 769, 771 (Mo. banc 1986). Even though the verdict may be defective in form, if it substantially finds the issues submitted and enables the court intelligently to pronounce judgment for one or the other of the parties in the case, the verdict is sufficiently certain to be received. Morse v. Johnson, 594 S.W.2d 610, 616 (Mo. banc 1980).
Examination of the verdict form as returned in this case leaves no doubt that the jury intended to return a verdict in favor of all defendants. The verdict was sufficiently definite and complete so as to find the issues submitted and to enable the court to enter judgment, despite the irregularity of the omitted names. The point is denied.
The other contention as to the number of jurors who agreed to the verdict arises because jury foreman Cooney used two lines on the verdict form, one to print his name and the other for signature. Apparently the court was misled by this and upon a cursory examination of the form, announced that nine jurors had signed. Appellant seems to argue that she was prejudiced in being dissuaded from asking that the jury be polled, first because she did not know only eight jurors had agreed to the verdict and second, because she was unaware at the time that the defendants' names had not been written on the form.
Appellant makes no claim there was any indication that all eight jurors did not agree to the verdict or that the omission of the defendants' names in any way indicated confusion or disagreement by the jury on its verdict. We fail to perceive any basis for a claim of error in the fact that the jury was not polled in this situation.
In a fourth point, appellant contends it was error for the court to direct a verdict for the defendants on her petition Count V. That count alleged an intentional tort recognized by § 326 of the Restatement (Second) of Torts (1964) as the interference with one attempting to give aid to a person in imminent danger of harm. The theory of the count, according to appellant, was that a member of the nursing home group, one Denny Barnett, was with appellant and the officers at the time appellant was in the process of being removed from the stadium. Barnett sought the permission *668 of the officers to call a cab for appellant, but that was refused because the officers told Barnett that appellant was under arrest. By this sequence of events, appellant claims the officers committed the intentional tort of preventing Barnett from giving aid to appellant who was then in need of that assistance to avoid the threat of physical harm.
Missouri has not recognized the cause of action described in the Restatement (Second) of Torts § 326, supra, and no reported case in this state has been cited by appellant or discovered by independent research indicating any disposition of Missouri courts to do so. Even were the cause of action assumed to be a viable one in this state, however, appellant's proof did not satisfy the minimum requisities for presentation of a cause of action under that doctrine.
To invoke Sections 326 and 327 of the Restatement (Second) of Torts, the evidence must show an imperilled plaintiff, a rescuer and a third party who presents or interferes with the rescuer. Miller v. Arnal Corp., 129 Ariz. 484, 632 P.2d 987, 994 (1981). The cases which have applied the doctrine all involved fact situations in which the plaintiff was in immediate need of assistance from the rescuer because of a present and life-threatening danger. For example, in Riggs v. Colis, 107 Idaho 1028, 695 P.2d 413 (1985), the plaintiff was being attacked with a knife, had been slashed in the throat and Colis used a weapon to prevent one Knapp from coming to Riggs' aid.
In the present case, Keesee was in no imminent or impending peril as she was escorted from the ballpark, the actual attack upon her coming at a later time and at another location. Although Keesee argued that Freeman and Stupps should have anticipated some potential danger because of the degree of Keesee's intoxication, that premise makes no case for intentional tort under the petition Count V. The cause of action which the Restatement postulates applies only when there is a real and immediate threat of bodily harm and active intervention by the defendant to thwart the efforts of a rescuer. Moreover, the peril must be one at hand and evident to the defendant before the intentional character of the tortious act can be demonstrated.
The trial court properly entered judgment for the defendants on Count V of appellant's petition because the petition did not state a cause of action recognized in Missouri and because appellant's proof failed to support the petition claim.
In her next point, appellant complains of the court's exclusion from evidence of reports of non-violent crimes and incidents at Royals stadium during a period of two years prior to May 19, 1984, the date appellant was ejected from the stadium. Reports and records of violent occurrences were admitted. The issue is whether the excluded reports of non-violent incidents should have been received as proof of the duty of care owed by the Royals to appellant.
It is a general rule that owners of premises are not obligated to afford protection to invitees against criminal attacks by unknown third persons. An exception to that rule was recognized in Brown v. National Supermarkets, 679 S.W.2d 307 (Mo.App. 1984), where a grocery store patron was beaten and shot in the store's parking lot. The plaintiff pleaded a duty on the store to provide security protection because the store had notice of the risk by reason of a series of other crimes which had been committed in the parking lot. Those facts created a special duty the store owed its customers. When the Brown case was ultimately tried, the court limited proof of prior incidents to violent crimes, typical of the offense committed against appellant. This restriction on the character of evidence admissible to show the special circumstance duty was affirmed on appeal. Brown v. National Super Markets, Inc., 731 S.W.2d 291 (Mo.App.1987).
More recently, the supreme court had occasion to review the Brown doctrine in Decker v. Gramex Corp., 758 S.W.2d 59 (Mo. banc 1988), and Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. banc 1988). In both cases, the plaintiffs were victims of criminal acts at business *669 locations where violent crimes had previously occurred. The court held that business owners may be under a duty to protect their invitees from the criminal attacks of unknown third persons. Whether such a duty does exist depends on whether the business owner may reasonably foresee the danger based on prior events. Referring to Faheen v. City Parking Corp., 734 S.W.2d 270 (Mo.App.1987), the court noted that assassination by car bombing was not reasonably foreseeable based on prior incidents of violent street crime, but other acts of street crime were.
The sense of Brown, Decker and Madden is that the special duty of care by a business owner to an invitee arises where prior criminal acts may reasonably be expected to be repeated and to thereby forecast a potential hazard to customers. It is not necessary that prior crimes and later offenses be identical, but the nature of the criminal acts must share common elements sufficient to place the business owner on notice of the danger and alert him to the safeguards which are appropriate to the risks.
In the present case, appellant's suit was based on the violent incident of abduction and assault. She was permitted to show to the jury the records of all other violent crimes and incidents which had occurred at Royals Stadium the previous two years. Records of disorderly conduct by Royals patrons and other non-violent events at the stadium were properly excluded because they did not tend to show notice to the Royals of a danger to customers from acts of violence such as kidnapping and assault.
It also appears from the evidence in the case that appellant can show no prejudice from the exclusion of the records of non-violent incidents. Appellant was permitted to prove and argue to the jury the dangers present at the stadium as demonstrated by eighty-eight violent crimes committed there in playing seasons the past two years. Such evidence was more than sufficient to establish the special duty of care. The evidence of non-violent occurrences would have been, at most, cumulative.
Under the same point, appellant argues she was entitled to use the evidence of non-violent occurrences at Royals Stadium because a special relationship existed between her and respondents. She says that special relationship, recognized in Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881 (Mo. banc 1983), entitles the plaintiff to prove non-violent as well as violent prior acts to demonstrate the duty of care owed by the business owner.
In Virginia D., the plaintiff was the guest of the defendant innkeeper and was victimized on the hotel premises. Appellant in the subject case, as a patron of the Royals, has no basis to assert a comparable relationship to that of a hotel guest. The cited case simply is not in point or applicable.
Even were it to be assumed, however, that such a special relationship did exist during the period of time Keesee was at least superficially in the custody of the officers, the doctrine of Virginia D., does not aid her claim to use of the excluded records. When Keesee was released in the parking lot, the special relationship, if there was one, ceased and it was sometime thereafter and at another location when she was injured. The claim is therefore entirely without merit.
In the sixth point, appellant contends the court erred when it gave certain admonitions to the jury regarding the reported incidents of violence at Royals Stadium during the two years prior to appellant's assault and injury. The evidence in question consisted of reports made to police officers, reports made to the Royals and admissions by the defendants that certain violent incidents had been reported. The defendants had objected to the use of the incident reports, being records from the police department and from the files of the Royals, as hearsay, but the court ruled the evidence admissible for the limited purpose of showing notice to the Royals that such occurrences had been reported.
On three occasions, the court instructed the jury as to the purpose for which the reports were to be considered and cautioned that the existence of the reports did *670 not necessarily prove that the reports were true. Appellant claims the cautionary instructions should not have been given because the effect was to belittle plaintiff's evidence and to suggest to the jury that the reports were unreliable.
The exhibits in question, if offered to prove that each incident described did occur, were inadmissible as hearsay. This follows because the reports were second hand accounts, and in some cases third hand accounts, of what witnesses to the events had purportedly described as violent occurrences they had observed. Obviously, the witnesses to the events were not present in court to give testimony. The reports were substituted as the out-of-court statements the witnesses had made. It requires no citation of authority for the proposition that the reports were hearsay and inadmissible to prove that the events did in fact occur in the details as related in the reports. The instructions the court gave to the jury on the effect of the reports as evidence were correct statements of the law and therefore not error.
Moreover, as appellant's case was made, it was immaterial whether appellant's evidence actually proved the facts of the violent incidents at the stadium. Respondents did not contend or suggest that the reports were false or fabricated and their admissions established respondents' knowledge of the reports. To establish the duty of care owed patrons at the stadium by the Royals, it was merely necessary for appellant to prove notice to respondents that numerous acts of violence on the premises were being reported. The instructions to the jury of which appellant complains did not diminish that proof. The point is denied.
In a final and related point to the complaint about the court's instruction described in the preceding point, appellant contends the court erred when it denied admission in evidence of certain computer print-outs. This material consisted of listings prepared by the police department and by the Royals showing all of the violent and non-violent incidents which appeared in the underlying reports. Appellant suggests the order barring the computer print-outs from introduction in evidence was erroneous for several reasons. No extended discussion of the point is needed. The summary of non-violent incidents was excludable on grounds already discussed and those incidents comprised a substantial number of the print-out items. In addition, the print-outs were compounded hearsay being drawn themselves from other hearsay.
This same question of using computer print-outs listing reports of crimes was considered in Brown v. National Super Markets, 731 S.W.2d at 295. The court's order denying admission of the material was affirmed. For the same reasons given in that opinion, the same result is reached here.
The judgment is affirmed.
All concur.
NOTES
[1] A verdict by eight jurors was acceptable under the parties' stipulation. During an evening recess, one of the jurors became ill and could not continue to participate. The cause proceeded before eleven jurors with agreement that a verdict could be returned by eight or more. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568871/ | 48 F.2d 965 (1931)
In re PERRIGO.
Patent Appeal No. 2723.
Court of Customs and Patent Appeals.
April 29, 1931.
T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
GARRETT, Associate Judge.
The application in this case relates to "Method and Apparatus for Accumulating and Transforming Ether Electric Energy," and embraces 36 claims of which numbers 1, 15, 21, and 32 seem fairly representative:
"1. The production and generation of an electromotive force from the accumulation of the ether waves of an unknown potential, from the general field of ether wave electric medium."
"15. The method and apparatus herein described for collecting and accumulating from the general ether field of electric medium of unknown polarity, of ether waves of electromotive force, consisting in conducting the lines of force of the ether electric waves through aerials and within groups of broken circuits, and breaking up the lines of force, then reversing the polarity of these potentials through the medium of polarized resistances."
"21. A collector and accumulator of the ether electric waves, consisting of wave inductive aerial plates, and terminal contacts in opposite wave transmitting positions."
"32. An ether wave transformer of electromotive force, comprising an internal body of magnetic circuits, and an external body of increased magnetic intensity, to the internal body, and having an air gap between, insulated means connecting the internal and external bodies of magnetic circuits, and conductors connecting the poles of the internal and external magnetic circuits in progressive degrees of electric induction, and polarizing and depolarizing circuits connecting the conductors from the poles of the magnetic circuits in series, and series of polarizing and depolarizing circuits connecting said series of conductors in reverse order, and polarized resistance coils in the air gap insulated from the magnetic circuits and connecting electrically the series of reversed *966 polarizing and depolarizing circuit from the magnetic circuits."
There are no references, the claim having been rejected by the Board of Appeals of the United States Patent Office, who affirmed the decision of the Examiner, on the ground that the disclosed device is lacking in utility as a result of inoperativeness.
Appellant's structure is a very elaborate one, there being ten sheets of drawings. It would serve no good purpose to attempt a detailed description of it. There is a plate-like member carrying a quite complicated system of wiring, which is referred to as a "collector," and a structure, called a "transformer," which includes superimposed layers of conductors. There is also a rheostat and lead comprising a number of electric lamps.
The claims, as quoted, sufficiently indicate the purpose of the device.
Appellant has made several assignments of error, as, for example, that the Board erred in upholding the rejection by the Examiner on the ground (a) that the claimed invention "does not conform to any theory which is consistent with known natural laws relating to radiated energy, electro-statics, electro-dynamics or electro-magnetic phenomena"; (b) that it was implied that to support the application the discovery and development of "an entirely new world of unknown natural phenomena" would be an indispensable prerequisite; and (c) that it was implied that the same kind of development and public manifestations as characterized other fields of discovery (such as radio) was deemed to be an indispensable prerequisite.
These assignments of error are not well taken. Appellant's specification is long and complicated, and such explanation of operation as is given is expressed in language which, to us, as it appears to have been to the tribunals of the Patent Office, is not comprehensible, although the physical structure itself is capable of being understood. The specification does not conform to any scientific or engineering principles of which we have been able to obtain any knowledge. Should we reverse the experts and grant the patent sought, it would be a "leap in the dark," so far as this court is concerned, and we would be entirely unable to say what the patent is really for, or what measure of protection appellant is receiving. We have no way of ascertaining whether the device possesses utility or whether it will do the things claimed for it. There is nothing shown us from the realm of science by which to measure it.
It is fundamental in patent law that an alleged invention, to be patentable, must be not only new but useful, and that it must appear capable of doing the things claimed in order to be a device of practical utility. Besser v. Merrilat Culvert Core Co. (C. C. A.) 243 F. 611; Coupe v. Royer, 155 U.S. 565, 574, 15 S. Ct. 199, 39 L. Ed. 263.
The rule of doubt may only be applied in favor of an applicant where the doubt is a reasonable one, that is, one founded in reason and engendered by testing the alleged invention by known scientific laws and principles. Ex parte DeBausset, 1888 Cow. D. 66.
Neither the Patent Office tribunals nor the courts may properly grant patents upon a mere possibility that a device might do the things claimed for it, and be useful. There must be definiteness. Neither the Constitution nor the statutes contemplate the granting of patents upon theories, nor giving a monopoly upon intellectual speculations embodied in devices incapable of scientific analysis.
The question of patentable invention ordinarily must be determined by applied science, as understood by those skilled in the art to which the invention relates, and, if one presents a device which cannot be tested by any known scientific principles, he must, at least, demonstrate its workability and utility and make clear the principles upon which it operates.
No such demonstration here appears from appellant's application, or otherwise. Three affidavits are presented of parties who claim to have seen appellant's device in operation and who vouch for its working. These affidavits, however, are brief, general in character, and give no description of the device which affiants saw. Nor do they give any explanation which contains anything tending to clarify the terminology of the specification, or to render the device measurable by engineering principles or known natural laws. One of the affiants states that he is "a member in good standing in the American Society of Electrical Engineers," but he does not attempt any scientific explanation of the device or its workings.
Appellant's fourth assignment of error is: "The Board of Appeals erred in ignoring the applicant's offers to demonstrate the operativeness of his invention and apparatus, and/or upholding the decision of the Examiner on the ground of applicant's failure to demonstrate his invention and apparatus." It is noted that this assignment attributes to *967 the Board of Appeals an "ignoring" of appellant's offer to demonstrate.
If it be meant by this that an offer was made to the Board of Appeals to make a demonstration of the device, it is sufficient to say that there is no disclosure in the record which even suggests that any such offer was ever made to that tribunal.
We do find that, while the matter was pending before the Examiner, and after his first rejection, an attorney for appellant, on April 25, 1927, addressed a letter to the Commissioner of Patents in which it was said: "* * * It is prayed that the Examiner point out more specifically the defects required to be corrected [in the specifications], and that an opportunity be afforded the applicant to demonstrate his invention, should such action be required by the Office."
There is, in another letter of the attorney to the Commissioner, dated October 31, 1927, a discussion of the affidavits above alluded to and a suggestion that a prima facie showing of facts had been made justifying a "more exhaustive consideration of the merits of his alleged invention, and particularly in view of his offer to further demonstrate the invention to the Office, if an opportunity be afforded him for that purpose," and the letter concludes with a prayer that "* * * final action be not rendered without affording applicant a full and fair opportunity to demonstrate his invention to the Office to the fullest extent within his power." (Italics ours.)
In the appeal to the Board there is no reference to the matter by assignment of error or otherwise, and the Board says: "No such demonstration has been offered."
In the absence of any stronger showing than the record contains of a bona fide earnest effort on appellant's part to secure a demonstration to or before the Patent Office tribunals, this court would not be justified in finding that the fourth assignment of error is good.
The decision of the Board of Appeals is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568594/ | 10 So. 3d 271 (2009)
Hannelore Ernst KOENIGER
v.
Erich Andreas KOENIGER.
No. 2008-CA-1054.
Court of Appeal of Louisiana, Fourth Circuit.
March 4, 2009.
Marc D. Winsberg, Schonekas Winsberg Evans & McGoey, L.L.C., Fred L. Herman, Thomas J. Barbera, Law Offices Of Fred L. Herman, New Orleans, LA, for Plaintiff/Appellee.
William F. Wessel, Wessel & Associates, a Law Corporation, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
*272 EDWIN A. LOMBARD, Judge.
On April 24, 2008, the Motion for a New Trial filed by the defendant, Erich Koeniger, was granted, reducing his interim spousal support obligation to $3452.00 per month. The defendant appeals this judgment, arguing that his wife has sufficient income to cover her expenses pending the divorce settlement. After review of the record in light of the applicable law and arguments of the parties, we vacate the judgment and remand this matter back to the trial court for further proceedings.
Relevant Facts and Procedural History
The defendant married Hannelore Ernst (Mrs. Koeniger) in New Orleans, Louisiana, on October 12, 1997. The couple moved to the Republic of Panama in 2006 but Mrs. Koeniger returned to New Orleans and filed a Petition for Divorce in Orleans Parish on June 21, 2007, which included a request for interim spousal support. The defendant's Exception for Lack of Jurisdiction was denied and, after a hearing, the trial court entered an order on March 6, 2008, awarding interim spousal support to Mrs. Koeniger in the amount of $4552.00 per month, retroactive to June 21, 2007. The trial court granted the defendant's Motion for a New Trial and, after another hearing, vacated the judgment and entered a new judgment on April 24, 2008, awarding Mrs. Koeniger monthly interim spousal support payments in the amount of $3452.00. The defendant appeals this judgment, arguing that the trial court failed to consider Mrs. Koeniger's own income in calculating his interim spousal support obligation.
Applicable Law
In a divorce proceeding, the court "may award a party an interim spousal support allowance based on the needs of the party, the ability of the other party to pay, and the standard of living of the parties during the marriage." La. Civ. Code art. 113.[1] Thus, "[i]f a spouse has not sufficient income for maintenance pending suit for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse's support, proportioned to the needs of the claimant spouse and the means of the other spouse." Pellerin v. Pellerin, 97-2085, p. 10 (La.App. 4 Cir. 6/17/98), 715 So. 2d 617, 622, writ denied, 98-1940 (La.10/30/98), 727 So. 2d 1167. "To demonstrate need, a claimant spouse bears the burden of proving that she lacks sufficient income to maintain the standard of living that she enjoyed while residing with the other spouse during the marriage. Id.; see also Kirkpatrick v. Kirkpatrick, 41,851, pp. 3-4 (La. 2 Cir.App. 1/24/07), 948 So. 2d 390, 393 (the burden is on the claimant spouse to prove that "he or she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the marriage") "Interim spousal support is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce." Lambert v. Lambert, 06-2399, p. 10 (La.App. 1 Cir. 3/23/07), 960 So. 2d 921, 928 (citing Derouen v. Derouen, 04-1137, p. 3 (La.App. 3 Cir. 2/2/05), 893 So. 2d 981, 984) (emphasis added). "A spouse's right to claim interim periodic support `is grounded in the statutorily imposed duty on spouses to support each other during marriage, and thus, provides for the spouse who does not have sufficient income for his or her maintenance *273 during the period of separation.'" Derouen at p. 4, 893 So.2d at 984 (citation omitted; emphasis added).
Discussion
Accordingly, we review the record to determine if Mrs. Koeniger met her "burden of proving that she lacks sufficient income to maintain the standard of living she enjoyed while residing with the other spouse during the marriage." Pellerin at p. 10, 715 So.2d at 622. The record indicates that after their marriage in October 1997, the couple resided in New Orleans until they moved to the Republic of Panama in 2006 and that, shortly thereafter, Mrs. Koeniger returned to New Orleans to file a petition for divorce in June 2007. Mrs. Koeniger's residence in the spring of 2007 is unclear but, after spending several months in her native Germany, she returned to the couple's condominium[2] at 232 Lake Marina Boulevard in New Orleans and has been paying the monthly condominium fees ($950.00), as well as utility bills for electricity, land and cellular telephone lines. Because the 2004 Hyundai she used during her marriage had been shipped to Panama, Mrs. Koeniger purchased a $10,000.00 pre-owned Dodge vehicle for her personal use in New Orleans. Mrs. Koeniger submits that her clothing and personal expenses were paid for out of her own funds and, accordingly, are not included in her request for interim spousal support.
Our review of the record indicates that Mrs. Koeniger receives Medicare benefits and a monthly Social Security payment of $560.00 derived from her husband's Social Security benefits. In May 2007, she received approximately $150,000.00 which she asserts was a return on her $100,000.00 investment in Erikon, L.L.C., a Puerto Rico real estate project, and that she deposited $149,588.77 into her separate Fidelity Homestead Savings Account. In December 2007, she received an additional $7117.00 from her investment in Erikon and a $8900.00 income distribution from a trust created by the defendant. In addition, Mrs. Koeniger also received $16,000.00 from the sale of Erikon real estate units which she combined with her own funds to purchase a $20,000.00 certificate of deposit with a 3.28% interest rate. Further, Mrs. Koeniger has interest in bank accounts in Germany and Austria, although it is unclear whether these accounts are jointly held with her daughter and to what extent she has access to the funds.
Nothing in the record indicates that the trial judge made a specific finding as to Mrs. Koeniger's income or a determination as to whether Mrs. Koeniger met her burden in proving that she lacked sufficient income to maintain the standard of living she enjoyed with the defendant. Rather, it appears that the trial judge agreed with the argument of Mrs. Koeniger's counsel that, as the defendant had ample means to pay support, "[t]he only real issue is what Ms. Koeniger's needs are." According to the hearing transcript, the trial judge accepted Mrs. Koeniger's argument, telling the defendant's counsel "what I'm going to allow you to do is to present to me an opposition well, a motion stating your position on Mr. Koeniger's ability to pay."
*274 On appeal, the defendant concedes his ability to pay but contends that the initial question in determining whether interim spousal support is appropriate is whether Mrs. Koeniger has sufficient income to maintain the marital standard of living during the period of litigation pending their divorce. Interim spousal support is specifically designed to maintain the status quo during litigation and, as such, the burden is on the claimant to prove her entitlement to such support. In this case, it is undisputed that Mrs. Koeniger received more than $150,000.00 in 2007 from investments and trust distributions and that she resides in the couple's condominium responsible only for condo association fees and utilities. Nothing in the record suggests that Mrs. Koeniger's expenses exceed her income or that her standard of living is below that which she enjoyed during the marriage. Although her actual income is problematic, even accepting arguendo that $100,000.00 of the funds she received in 2007 was the return of her initial investment and, thus, an asset rather than income, it is difficult to conceive why the substantial return on her investment should not be considered as income. The extent to which the defendant has control over the disbursement of the returns on Mrs. Koeniger's investment is neither in the record nor a factor in determining Mrs. Koeniger's income for purposes of interim spousal support.
Thus, although the trial court made no determination as to Mrs. Koeniger's income or assets, the record indicates that (at the time of the hearing in 2008) the funds received by Mrs. Koeniger in 2007 were sufficient to preserve parity during the period of separation. See Lambert, 06-2399 at p. 11, 960 So.2d at 928 (claimant demonstrates the need for interim spousal support if she establishes that she lacks sufficient income or the ability to earn a sufficient income to sustain the style or standard of living that she enjoyed while residing with the other spouse). The trial judge's failure to make a determination as to whether Mrs. Koeniger met her burden in establishing a need for interim spousal support and awarding interim spousal support solely on the basis of the defendant's ability to pay was clear error. Accordingly, we vacate the judgment and remand the matter back to the trial court.
Conclusion
The judgment of the trial court is vacated and the matter is remanded back to the trial court for further proceedings.
VACATED AND REMANDED.
NOTES
[1] Article 113 was enacted in 1997, replacing the term alimony pendent lite with interim spousal support.
[2] Testimony indicates that in 2002 when they purchased the property, Mrs. Koeniger contributed approximately $140,000.00 from her bank accounts in Austria and Germany towards the purchase of the condominium and Mr. Koeniger contributed approximately $480,000.00. The extent to which Mrs. Koeniger maintains these accounts in Germany and Austria and whether they are joint accounts with her daughter is unclear from her testimony. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568611/ | 10 So. 3d 346 (2009)
Sherman CAMPBELL, Melissa Gabriel and Victor Manuel
v.
Kevin ROBINSON and Entergy Louisiana, Inc.
No. 2008-CA-1429.
Court of Appeal of Louisiana, Fourth Circuit.
April 8, 2009.
*347 Darleen M. Jacobs, Al A. Sarrat, Rene' D. Lovelace, Jacobs, Sarrat & Lovelace, New Orleans, LA, for Plaintiffs/Appellees.
Darryl Harrison, Berryl F. Thompson, II, Law Office of Bernard L. Charbonnet, Jr., New Orleans, LA, for Defendants/Appellants.
(Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
MAX N. TOBIAS, JR., Judge.
The defendants, Entergy Louisiana, L.L.C. ("Entergy") and Kevin Robinson ("Robinson"), appeal from the trial court judgment rendered in favor of the plaintiffs, Sherman Campbell ("Campbell"), Melissa Gabriel ("Gabriel"), and Victor Manuel ("Manuel"), finding Entergy vicariously liable for all fault for an accident and reducing the general damages awarded to the plaintiffs by 10% for failure to mitigate their respective damages. The defendants aver the trial court erred by failing to allocate fault to the owner of the cable wire that caused injury to the plaintiffs and by failing to reduce the plaintiffs' awards by at least 15% for failure to mitigate their damages. After a review of the record, we affirm the trial court's judgment.
I. Factual Background and Procedural History
On 10 February 2004, the plaintiffs, Campbell, Gabriel, and Manuel, were standing in front of Gabriel's residence located at 2900 Daniel Drive in Violet, *348 Louisiana, when Robinson, an Entergy employee, was operating one of Entergy's service unit trucks with a bucket and boom apparatus on the back of it, proceeding down Daniel Drive. As Robinson drove past Gabriel's residence, the bucket on the Entergy truck snagged a cable wire extending from a utility pole to the home situated at 2904 Daniel Drive causing the wire to snap and "whip" back, striking and injuring each of the plaintiffs. Campbell was struck by the cable wire in the mouth. Gabriel was struck on the back of her neck. Manuel was struck in his lower back and buttocks.
The plaintiffs filed a petition for damages on 10 September 2004 against Robinson and Entergy. The matter originally came for trial on 17 January 2008, but was continued without date to allow the parties to obtain additional testimony from recently discovered witnesses. The matter resumed on 3 April 2008, and again, the court continued the matter to allow the parties to obtain information from a potential fact witness. Because this particular fact witness was unresponsive to efforts made by both parties, this matter was concluded on 6 June 2008, following submission of post-trial memoranda.
On 31 July 2008, the trial court rendered judgment in favor of the plaintiffs and against the defendants, finding that Robinson acted within the course and scope of his employment with Entergy at the time of the accident. Consequently, Entergy was held to be vicariously liable for the damages resulting from Robinson's negligent actions. The trial court found Entergy to be 100% at fault for the accident and resulting injuries sustained to the plaintiffs, reducing the general damages awarded to the plaintiffs, Gabriel and Manuel, by 10% for failure to mitigate their respective damages, and by awarding a reduced damage award to Campbell for failing to seek medical attention for an obvious injury.
Robinson and Entergy timely filed the instant appeal.
II. Legal Argument
Robinson and Entergy assign two errors on appeal: the trial court (1) failed to allocate fault to the owner of the cable wire, and (2) failed to reduce the plaintiffs' general damage awards by at least 15% for failure to mitigate their respective damages.
A. Allocation of Fault
The trier of fact has the duty to assess the credibility of witnesses, and that determination of fact may not be disturbed unless the record establishes that the finding is clearly wrong or manifestly erroneous. Williams v. Hotel Dieu Hosp., 593 So. 2d 783, 787 (La.App. 4th Cir.1992). When the trier of fact's determination is based on a decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So. 2d 840, 845 (La.1989). Moreover, a trier of fact is owed great deference in its allocation of fault and its determination may not be reversed unless clearly wrong. Lederer v. Famous Entertainment, Inc., 98-2274, p. 18 (La.App. 4 Cir. 5/12/99), 732 So. 2d 1277, 1286. The trier of fact, unlike the appellate court, has had the benefit of witnessing the entire trial and reviewing first hand all the evidence. Id., p. 19, 732 So.2d at 1287.
La. C.C. art. 2323 A provides, in pertinent part:
In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a *349 party to the action or a nonparty ... or that the other person's identity is not known or reasonably ascertainable.
In the instant case, based upon the evidence presented at trial and finding the testimony of the plaintiffs to be credible, the court determined that Robinson was solely at fault for the accident. Specifically, the court found that Robinson was negligent in failing to maintain a proper lookout and seeing what he should have seen, i.e., the low hanging cable wire, and failing to take the necessary precautions to lower the bucket and boom of the Entergy truck in order to avoid snagging and breaking the cable wire causing injury to the plaintiffs. Gabriel testified that she had lived on Daniel Drive for seven to eight years and the cable wire at issue had remained at the same low height during that entire time. Robinson testified that he was regularly assigned by Entergy to the Violet area and had traversed Daniel Drive at least three times per week on an ongoing basis prior to this incident and was familiar with the low-hanging cable wires on the street. Based upon our review of the record as a whole, we find the record is devoid of any evidence that the cable wire itself presented any unreasonable risk of harm or was defective in any way that caused or contributed to the subject accident. Contrary to the assertions of Entergy, we hold that the ownership (or who had custody and/or control) of the cable wire at issue is of no relevance to the subject accident or injuries sustained by the plaintiffs.
Accordingly, we find no error in the trial court's findings of fact and affirm its allocation of 100% of the fault to Robinson. As the accident occurred within the course and scope of Robinson's employment with Entergy, we find the trial court correctly determined that Entergy was vicariously liable for the damages resulting from Robinson's negligent act. This assignment of error is without merit.
B. Mitigation of Damages
In their second assignment of error, Entergy and Robinson aver the trial court erred in failing to reduce the plaintiffs' general damage awards by at least 15% for failure to mitigate their respective damages. We disagree.
La. C.C. art.2002 provides that "[a]n obligee must make reasonable efforts to mitigate the damage caused by the obligor's failure to perform," and when he does not, "the obligor may demand that the damages be accordingly reduced." A tort victim has an affirmative duty to make every reasonable effort to mitigate his or her damages, but the care and diligence required of him or her is the same as that which would be used by a person of ordinary prudence under like circumstances. Sepulvado v. Turner, 37,912, p. 10 (La. App. 2 Cir. 2/10/03), 862 So. 2d 457, 463. This duty requires that the injured party take reasonable steps to minimize the consequences of the injury. Dixie Services, L.L.C. v. R & B Falcon Drilling USA, Inc., 05-1212, 06-1209, p. 6 (La.App. 4 Cir. 3/21/07), 955 So. 2d 214, 219.
It is clear that the trial court both considered and applied the correct legal principles to the evidence presented based upon its reduction of the damage awards made to Gabriel and Manuel.[1] The trial *350 court reduced their general damage awards by 10% each for their failure to attend physical therapy based on their treating physician's testimony that physical therapy would have hastened their recovery. Regarding Gabriel and Manuel, the trial court was best positioned to make credibility determinations, and it found the weight of the evidenced tipped in favor of the plaintiffs such that 10% was the highest percentage it could reduce their respective awards. On review, we find the trial court's conclusions grounded largely in credibility determinations and, accordingly, neither manifestly erroneous nor clearly wrong.
Regarding Campbell, despite his pre-existing chronic periodontal disease, the trial court found that he sustained an injury to his mouth as a result of the accident, causing him pain and suffering that would have continued and required treatment. The trial court, however, specifically stated that it did not reduce his general damage award by any percentage for failure to mitigate his damages, but rather, awarded a reduced amount of general damages ($3,000.00) based on the fact that Campbell produced no evidence that he sought treatment for an obvious injury. We find that the trial court did not abuse its vast discretion in making this award based on the evidence and testimony presented.
CONCLUSION
The trial court found that Robinson was solely at fault for causing the accident and resulting damages to the plaintiffs. This finding is amply supported by a reasonable factual analysis of the record on appeal. As Robinson was in the course and scope of his employment with Entergy at the time of the accident, the trial court correctly determined that Entergy was vicariously liable for Robinson's negligent acts. Additionally, the record supports the conclusion that the trial court was within its discretion to reduce the general damage awards of Gabriel and Manuel by 10% each for failure to mitigate their respective damages and by making a reduced general damage award to Campbell. Based upon the assigned errors and our review thereof, we affirm the trial court's judgment.
AFFIRMED.
NOTES
[1] The trial court awarded $14,000.00 in general damages to Gabriel and Manuel, respectively, for having each sustained an 11-month soft-tissue injury. (Gabriel was treated for injuries to her neck for 11 months, and Manuel received 11 months of treatment for injuries to his back.) Both awards were reduced by 10% for the plaintiffs' failure to attend physical therapy as recommended by their treating physician, Daniel Seltzer, M.D., thereby reducing their general damage awards to $12,600.00 each. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568623/ | 41 F.2d 60 (1930)
EQUITABLE TRUST CO. et al.
v.
A. C. WHITE LUMBER CO.
No. 1106.
District Court, D. Idaho, N. D.
May 3, 1930.
*61 A. B. Ridgway, of Portland, Or., and E. W. Wheelan and Allen P. Asher, both of Sandpoint, Idaho, for objectors.
I. N. Smith, of Portland, Or., for petitioner Western Lumber Warehousing Co.
W. C. Bristol, of Portland, Or., for petitioner Federal Securities Co.
CAVANAH, District Judge.
The Equitable Trust Company, an Oregon corporation, and Earl C. Bronaugh, as trustee, on October 30, 1929, instituted this suit to foreclose a mortgage upon all of the property of the defendant A. C. White Lumber Company, an Idaho corporation, and on November 2, 1929, Lauritz S. Franck was appointed receiver. Thereafter, on December 9, 1929, upon petition of certain resident and foreign creditors having claims against the lumber company, and after the lumber company admitted their validity and consented to the appointment of a general receiver, the powers of the receiver were enlarged to a general receiver. Upon a report of the receiver, made on November 2, 1929, attention was called to the existence of certain warehouse certificates, executed by the Western Lumber Warehousing Company, covering lumber stored in the yard of the lumber company at Dover, Idaho, securing a balance due on indebtedness evidenced by promissory notes of the lumber company, and authority was then requested and granted to permit the receiver to issue receiver's certificates to pay the prior incumbrances against the lumber. There appeared then to be approximately $34,000 in notes of the lumber company outstanding, secured by warehouse receipts, and of which more than one-half were paid by the receiver out of funds received from the receiver's certificates, leaving a balance unpaid of $14,966.62. Some time in January, 1930, counsel for the lumber company protested to the receiver making any further payments on the balance of the indebtedness secured by the warehouse certificates, on the ground that the transactions out of which the indebtedness evidenced by the notes arose are usurious, and the warehouse receipts hypothecated by the lumber company to secure the payment of the loans are invalid. After such protest, the receiver applied for an order of the court, which was granted on January 25, 1930, directing him to deposit in the clerk's office the balance of $14,966.62 and interest, pending the determination of the protest, and directing all creditors and parties claiming any interest therein to appear in court on February 10, 1930, and show cause why said sum so deposited should not be paid to the warehousing company.
At the hearing on the order to show cause, the warehousing company and the Federal Securities Company filed their petitions, praying for an order requiring the clerk of the court to pay to them the said balance of $14,966.62, on the ground that the court did not have jurisdiction to appoint the general receiver, and that the warehouse receipts covering the fund involved are valid, and the holders thereof have a preferred lien upon the fund now in the custody of the clerk. Considerable testimony was taken, in which it appears that, after negotiations between the warehousing company and the defendant lumber company, a plan of financing the lumber operations of the lumber company was developed, in which the warehousing company was granted permission to occupy a portion of the lumber yard of the lumber company for the purpose of storage of finished lumber, owned by the lumber company. No compensation was paid as rental by the warehousing company. The lumber company agreed to pay to the warehousing company for the lumber piled in its yard 15 cents per thousand feet per month for the first million feet of lumber so piled, and 7½ cents per thousand feet per month on any stock of lumber in storage over one million feet, said compensation to be computed not only on lumber actually covered by warehouse receipts, but also all lumber piled in the yard. In addition to these charges, the lumber company paid to the warehousing company 6 per cent. per annum on the principal of each of the seven loans made, and one-half of 1 per cent. of the loans every ninety days, and in addition thereto paid a monthly salary of $200 during a portion of said period, and thereafter a monthly salary of $150, for a *62 man kept at the yard, all of which payments aggregated $10,638.16 during the period in which the loans were made. There was a further sum paid by the lumber company of $438.75 as premium on a policy of life insurance issued on the life of E. R. McCory, president and treasurer of the lumber company, in favor of the securities company as additional security for loans made by it. Based upon these facts, the receiver and intervening creditors contend that the loans and the entire transaction is tainted with usury, and that the warehouse receipts are invalid and insufficient to create a lien entitling the holder thereof to any rights as lien claimants on the lumber therein described in preference to unsecured creditors, in that the lenders of the funds receive as interest thereon a sum in excess of 10 per cent. per annum allowed under section 2552 of the Idaho Compiled Statutes.
Before considering the question as to the validity of the warehouse receipts, it becomes necessary to first ascertain whether or not the court has jurisdiction to determine the issue concerning the validity of the receipts, for both the securities company and the warehousing company challenge the jurisdiction of the court, upon the ground that the order of the court of December 9, 1929, appointing Franck a general receiver, is invalid, because the appointment was made on petitions of simple contract creditors who had not reduced their claims to judgment, and therefore neither he nor intervening creditors have any right to appear and contest the title of the securities company or the warehousing company in the fund deposited. It will be observed from the record that petitions were filed by resident and nonresident creditors of the defendant, requesting the appointment of the general receiver, and the defendant lumber company not only admitted the validity of the mortgage indebtedness, but consented to the appointment of the receiver originally upon the bill to foreclose the mortgage, and also on December 6, 1929, to the appointment of the general receiver, and thereafter, when the order for the appointment of the general receiver was made, it again consented in writing to the entering of the same.
The general rule that a receiver cannot be appointed on a bill filed by an unsecured creditor who has not reduced his claim to judgment is inapplicable where the debtor answers and expressly consents to the appointment of the receiver, admits the indebtedness and its insolvency, and fails to object seasonably, and the objection by others under such circumstances to the jurisdiction of the court will be treated as waived. This principle applies with equal force to a creditor of a defendant corporation when brought in, for, if not, a most absurd result would ensue if, when a debtor corporation has submitted itself to the jurisdiction of the court, a creditor could come in, or, when brought in, might reopen the matter of jurisdiction over the debtor corporation. Here we have the securities company and the warehousing company, without objection, permitting the general receiver to go into possession of all of the property of the defendant, transact large business, dispose of the assets of the corporation, assume obligations, and pay to them more than one-half of their claims without intimation of lack of authority or any objection to the proceedings. Acting as such, they cannot now be heard to say that they did not have knowledge of the appointment of a general receiver, because the record shows that they did, as they had dealings with him for some time in regard to their claims and accepted payments thereon made by him until the protest was made to the receiver to discontinue doing so. Under such circumstances, and without the necessity of invoking the principle thus stated, good faith, fair dealings, and an early assertion of their objection, being essential upon their part, would now preclude them from objecting to a continuation of the receiver. The principle here announced is supported generally by the federal courts, and as logically stated by the court in the case of Horn v. Pere Marquette R. Co. (C. C.) 151 F. 626, 633:
"Next it is said that the bill under which the receiver was appointed was filed by a single unsecured creditor, who had no judgment, and who claimed no lien. But the defendant debtor appeared, and, by a sworn answer, confessed the debt and its utter insolvency, and joined in the prayer for the appointment of a receiver. The objection, if tenable in view of the confession of the debt and of insolvency, was one which, in a case where the court had jurisdiction of the parties and is of general equitable cognizance, may be waived `and, when waived, stands as though no such objection ever existed.' Tompkins [Co.] v. Catawba Mills (C. C.) 82 F. 780; Sage v. Memphis, etc., Ry. Co., 125 U.S. 361, 8 S. Ct. 887, 31 L. Ed. 694; Mellen v. Moline, etc., Iron Works, 131 U.S. 352, 9 S. Ct. 781, 33 L. Ed. 178; Hollins v. Brierfield Coal, etc., Co., 150 U.S. 371, 380, 14 S. Ct. 127, 37 L. Ed. 1113. In the case last cited, the court expressly held that such *63 an objection must be made in limine or it is waived, citing Reynes v. Dumont, 130 U.S. 354, 9 S. Ct. 486, 32 L. Ed. 934, and other cases. * * * A most absurd result would ensue if, when the corporation has submitted to the jurisdiction of the court * * * a creditor could come in, or when brought in, might reopen the matter of jurisdiction over the debtor corporation. If such an objection is not waived once for all, so as to close the question as to stockholders and creditors, what number of creditors would conclude the rest? In Grand Trunk Ry. Co. v. Central Vermont Ry. Co. (C. C.) 85 F. 87, it was very logically ruled by Judge Wheeler that a mortgagee subsequently intervening and being made a defendant could not demur to the bill because the complainant who filed the bill was not a judgment creditor, being bound by the waiver of that objection by the railroad company which had answered, and consented to the appointment of a receiver."
See, also, Brown B. & Co. v. Lake Superior Iron Co., 134 U.S. 530, 10 S. Ct. 604, 33 L. Ed. 1021; The Central Trust Co. of N. Y. v. McGeorge, 151 U.S. 129, 14 S. Ct. 286, 38 L. Ed. 98; Citizens' Bank & Trust Co. v. Union Mining & Gold Co. (C. C.) 106 F. 97; Kessler v. William Necker (D. C.) 258 F. 654; McAtamney v. Commonwealth Hotel Const. Corp. (D. C.) 296 F. 500; Cincinnati Equipment Co. v. Degnan (C. C. A.) 184 F. 834; Walker v. United States Light & Heating Co. (D. C.) 220 F. 393; Beet Growers' Sugar Co. v. Columbia Trust Co. (C. C. A. 9) 3 F.(2d) 755.
It will be remembered that the mortgage which is being foreclosed here covers all of the property of the defendant corporation, admittedly insolvent, and, after such admission and the consent to the appointment of a general receiver by it, the court was required to regard the suit as one against an insolvent corporation, wherein a general receiver was sought to conserve all of the assets, whether included in the mortgage or not, because the administration of the assets of the insolvent corporation is within the functions of a court of equity, and, the parties being before it, the court had power to proceed and administer the property of the insolvent corporation. Hoover v. Mortgage Co. for America, 290 F. 891 (C. C. A. 9). So where, as here, the receiver having been appointed on consent of the debtor defendant, and under orders of the court has entered upon the administration of the property of the defendant, incurring obligations, and making large expenditures, it is too late, even if objectors could do so, to urge that the court had no jurisdiction to appoint the general receiver. Yaryan Naval Stores Co. v. B. Borchardt Co. et al. (C. C. A.) 217 F. 758.
The mere fact of the lumber company having first submitted itself to the original jurisdiction in equity to foreclose the mortgage does not thereafter deprive it of the right of consenting to the appointment of a general receiver, for the general receivership recognizes the power of the court to foreclose the mortgage, and in no way conflicts with, or takes away, any of the court's power. The mortgage is foreclosed just the same under the general receivership as before, and such position does not run counter to equity rule No. 37 (28 USCA § 723) or the cases of King v. Barr (C. C. A.) 262 F. 56, or Pusey & Jones v. Hanssen, 261 U.S. 491, 43 S. Ct. 454, 457, 67 L. Ed. 763, relied upon by the securities company and the warehousing company. Jurisdiction of the court is not lost because the securities company and the warehousing company have come in and asserted rights to the property of the defendant, because their presence is not essential to a decision of the controversy between the original parties to the suit (Wichita Railroad & Light Co. v. Public Utilities Commission, 260 U.S. 48, 54, 43 S. Ct. 51, 67 L. Ed. 124), and therefore they cannot challenge the court's jurisdiction. King v. Barr, supra. All that the court held in the case of King v. Barr, supra, was that an intervener coming in six months after the entry of a final decree, and after all of the property in question had been disposed of under the decree, cannot challenge the jurisdiction of the court. Nor are the facts in the case of Pusey & Jones v. Hanssen, supra, similar to those in the present case, as we find that the bill upon which the receiver was appointed in that case was prosecuted by Hanssen, who was an unsecured simple contract creditor, and who did not consent to the appointment of the receiver, as was done here by the debtor corporation. The case is clearly distinguishable from the case we are considering, and may be considered as sustaining the jurisdiction of the court, as it is there said:
"The case at bar is also unlike In re Metropolitan Railway Receivership, 208 U.S. 90, 109, 110, 28 S. Ct. 219, 52 L. Ed. 403, and many others, in which there was express consent by the corporation to the appointment of the receiver, or where the indebtedness to plaintiff and the corporation's insolvency were admitted, or the lack of jurisdiction in equity was waived. The objection that the bill does not make a case properly cognizable in a court of equity does not go to its jurisdiction *64 as a federal court. Smith v. McKay, 161 U.S. 355, 16 S. Ct. 490, 40 L. Ed. 731; Blythe v. Hinckley, 173 U.S. 501, 19 S. Ct. 497, 43 L. Ed. 783. The objection may, as pointed out in Reynes v. Dumont, 130 U.S. 354, 395, 9 S. Ct. 486, 32 L. Ed. 934, be taken by the court of its own motion. But, unlike lack of jurisdiction as a federal court, Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S. Ct. 510, 28 L. Ed. 462, lack of equity jurisdiction (if not objected to by a defendant) may be ignored by the court, in cases where the subject-matter of the suit is of a class of which a court of equity has jurisdiction. And where the defendant has expressly consented to action by the court, or has failed to object seasonably, the objection will be treated as waived. Brown v. Lake Superior Iron Co., 134 U.S. 530, 535, 536, 10 S. Ct. 604, 33 L. Ed. 1021; Southern Pacific R. R. Co. v. United States (No. 1), 200 U.S. 341, 349, 26 S. Ct. 296, 50 L. Ed. 507. In cases relied upon by respondent there was such waiver. But, here, the company strenuously insisted throughout upon the absence of jurisdiction and denied every material allegation on which it is sought to support the bill."
The principal contention of the receiver that the loans made by the different finance concerns to the lumber company and the warehouse receipts issued to secure the same were usurious and invalid requires a consideration of the facts relating to the transactions out of which the loans were made. The lumber company, desiring financial assistance, at different times made arrangements with the warehousing company to secure for it loans on lumber stock held in the yard of the lumber company, and a system known as a "field warehousing system" was worked out. The warehousing company was licensed to use and occupy the lumber yard of the lumber company at Dover, where the lumber was stacked in separate piles and numbered and tagged, and a sign was placed on each pile, where the lumber was piled, and on which was plainly printed in black letters words sufficient to inform the public that the lumber was held by the warehousing company. The lease entered into between the lumber company and the warehousing company provides that the warehousing company had the right to possess and use the part of the yard where the lumber was so piled, and it is clear from it that it was not the intention of the warehousing company to exclude the lumber company from the yard, and the possession of the yard by the lumber company was not exclusive. An employee was at the yard looking after the lumber so tagged, and assisted in the releasing of it. After the arrangements, the warehouse receipts were issued and indorsed by the lumber company and delivered to those who made the loans to secure their payment. The lumber was easily identified, and a description of the place of storage was clear. There would be no difficulty on the part of an attaching creditor or intending purchaser to identify the actual lumber covered by the warehouse receipts, for notice was posted upon each pile. The intention of the owners is made clear by thus identifying and segregating the piles of lumber, which was for the purpose of giving control over it. Ward v. First National Bank (C. C. A. 6) 202 F. 613; Boise v. Talcott (C. C. A.) 264 F. 61; Atherton v. Beaman (C. C. A.) 264 F. 878, 881. It was understood that, when the lumber was sold, the money derived therefrom was to be used in taking up the warehouse receipts, which was done. The lumber company, securities company, warehousing company, and plaintiff all had knowledge of the manner in which the lumber covered by the warehouse receipts was handled and disposed of. During the time plaintiff consented to surrender its prior liens and relinquished all claim of prior control and possession to the warehousing company of all claims under its mortgage before the warehousing company issued its receipts to any one from whom the securities company acquired a receipt as bona fide purchasers for value. The situation was known by plaintiff and defendant, and recognized to exist when in applying for an order of the court protecting rights of those who held the receipts. We find a similar case as the present one in the matter of Taylor Log & Lumber Co., Bankrupt, 41 F.(2d) 249, decided by Judge Cushman, where the court upheld the validity of warehouse receipts. In view of the present facts, it cannot fairly be said that, because in the plan adopted the warehousing company was not required to pay any taxes or rent for the use of the yard or expense in handling the lumber, the bona fide purchasers for value of the warehouse receipts lost their lien, and that the transaction was not a valid warehousing of property. In re Pine Tree Lumber Co. (C. C. A.) 269 F. 516, 519.
The plan was one where the warehousing company bona fidely took open and exclusive possession of the stored lumber, and continued doing so with its own keeper in charge, and marked each pile of lumber so *65 that the public knew how it was being held. Such a plan should not be condemned as not being a valid "field storage warehouse plan."
This takes us to the last objection as to whether the warehouse receipts are negotiable and the transaction usurious. Objectors urge that the receipts are not negotiable and are usurious, for the reason that the charge for the use of the money loaned to the lumber company was for more than is allowed under the statutes of Idaho, where the rate of interest shall not exceed 10 per cent. per annum. As to their negotiability, it is asserted that, while each receipt contained a blank space for such charges, and in some instances they show that the charges were to be 15 cents per thousand for the first million feet and 7½ cents per thousand for the excess, it cannot be ascertained whether the charge on the particular lumber described therein was to be at the higher or the lesser rate, and therefore the failure to insert the rate of storage charge makes them nonnegotiable under section 6120 of the Idaho Uniform Warehouse Receipts Law.
When in determining the effect of the statute requiring the rate for storage charges to be embodied in the receipts, we are confronted with another provision of the Idaho statutes providing that "a receipt in which it is stated that the goods received will be delivered to the bearer, or to the order of any person named in such receipt is a negotiable receipt. No provision shall be inserted in a negotiable receipt that it is nonnegotiable. Such provision, if inserted, shall be void." Idaho C. S. § 6123. It seems clear from this provision of the statute that the only requirements for a negotiable warehouse receipt are that the receipt shall state "that the goods received will be delivered to the bearer, or to the order of any person named in such receipt." We must read section 6120, providing that the receipt must contain "the rate of storage charges," with sections 6123, 6145, and 6148 of the statutes, in order to determine whether the failure to recite any of the terms provided for in section 6120 in a warehouse receipt renders it nonnegotiable.
Section 6148 provides:
"If a negotiable receipt is issued for goods, the warehouseman shall have no lien thereon, except for charges for storage of those goods subsequent to the date of the receipt, unless the receipt expressly enumerates other charges for which a lien is claimed. In such case there shall be a lien for the charges enumerated so far as they are within the terms of section 6145, although the amount of charges so enumerated is not stated in the receipt."
And section 6145, C. S. Idaho, provides:
"Subject to the provisions of section 6148, a warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering and other charges and expenses in relation to such goods; also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale of the goods where default has been made in satisfying the warehouseman's lien."
In interpreting these four sections of the statute in pari materia, the deductions are that the only requirements under them which are necessary to make the receipt negotiable are those specified in section 6123, "that the goods received will be delivered to the bearer, or to the order of any person named in such receipt," and therefore the terms specified in section 6120 do not of themselves make the receipt negotiable, unless the receipt contains the provision set forth in section 6123. The only purpose of embodying in the receipt the rate of storage charges, or liabilities incurred by the warehouseman, is to preserve the lien and secure the payment to the warehouseman of such charges. Smith Bros. Co. v. Richheimer & Co., 145 La. 1066, 83 So. 255, 258; Manufacturers' Co. v. Monarch Co., 266 Ill. 584, 107 N.E. 885. So the proper construction of the statute, when applied to the receipts in question, is that the receipts are not rendered invalid or nonnegotiable by the omission of the rate of storage charges, if such appears therein.
The further assertion of objectors that the warehousing plan and the loans made by the different finance concerns to which the warehouse receipts were assigned were usurious, for the reason that it consisted of contracting for and receiving a greater rate of interest on the principal sum than is allowed by section 2552 of the Idaho Compiled Statutes, wherein parties agreeing in writing for the payment of interest on money loaned are limited to 10 per cent. per annum, is not tenable when we consider the facts relating to the loans here made by the securities company, who did not receive as interest a rate exceeding 10 per cent., although there were warehouse charges made by the warehousing company and commissions paid by it to the agent of the lenders. *66 These warehouse charges were separate and apart from the security company's charges of interest. It loaned its service and credit, which consisted of taking possession of the stored lumber, inspecting, grading, piling, and separating, and issued its negotiable warehouse receipts in favor of the lumber company, and guaranteed the truth of the recitals therein. The lumber company was financially embarrassed, and called the warehousing company in, and adopted a modern business plan to meet the necessities for a quick financial transaction, and agreed to pay it separate and apart from the rate of interest charged for the principal sum for such service and credit. To secure such service and credit, the lumber company had to pay the warehouse charges and commissions. The warehousing company had the right to sell its credit at whatever price it could get for it, and, if the transaction is in good faith, a greater discount may be charged than the prescribed rate of interest without violating the usury laws. A corrupt purpose must exist to loan money at an illegal rate of interest before it will contravene the usury laws. Philadelphia Warehouse Co. v. Seeman (C. C. A.) 7 F.(2d) 999. It will be remembered that the warehousing company took possession of the stored lumber, assumed all responsibility therefor as between it and the lumber company, and issued its negotiable instrument to the owner of the lumber so stored with the knowledge of the lumber company that the instrument be indorsed to innocent third persons, and by so doing the warehousing company loaned its credit to the lumber company. This plan did not contravene the usury laws, and is upheld in the case of Coast Finance Corp. v. Powers Furniture Co., 105 Or. 339, 209 P. 614, 24 A. L. R. 855. The evidence does not show that the lumber company participated in any agreement with the warehousing company, whereby the warehousing company was required to pay a discount rate to the securities company; while the warehousing company when in renewing the lumber company's paper stood a loss, and did so without the consent of or any additional charges to the lumber company. A corrupt intent and knowledge on the part of the lender, securities company, must exist at the inception of the contract before penalties of usury would be enforced. Idaho C. S. § 2554; Olson v. Caufield, 32 Idaho, 308, 182 P. 527; Anderson v. Creamery Co., 8 Idaho, 200, 67 P. 493, 56 L. R. A. 554, 101 Am. St. Rep. 188; Coast Finance Corp. v. Powers Furniture Co., supra. The evidence would not warrant the conclusion that the parties were not acting under an honest belief that the rate of interest was less than the maximum provided for by the statute.
There was ample evidence that the securities company is engaged in the business of loaning money, purchasing and discounting paper for value in the ordinary course of business, and purchased in good faith for value the warehouse receipts negotiated to it, and, after the money was loaned by it, which was secured by the receipts, it was taken and used by the lumber company for its benefit as a going concern. Good conscience and fair dealings under the evidence require a court of equity to recognize and protect its rights in the enforcement of the warehouse receipts lien on the lumber, and therefore the petitions of it and the warehousing company, as bona fide holders of securities, are granted, and an order will be entered requiring the clerk of the court to pay out of the funds deposited with him under order of the court the amount covered by the receipts. As to the prayer of the warehousing company for allowance of attorney's fees and expenses, it is thought that under the record, where the contest was over the application of the fund in the custody of the clerk, the court would not be justified in allowing the same, but petitioners, warehousing company and securities company, are allowed their usual costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568656/ | 772 S.W.2d 507 (1989)
Bruce BARKER, and Joanna Hope Barker, Appellants,
v.
Vernon BROWN, Karmalene Brown, General Shopping Centers, Inc. and Pine Hollow Plaza, Ltd., Appellees.
No. 09-88-092 CV.
Court of Appeals of Texas, Beaumont.
May 18, 1989.
*509 Stephen J. Mass, Conroe, for appellants.
Larry L. Foerster, Conroe, for appellees.
OPINION
BURGESS, Justice.
Bruce and Joanna Barker entered into an agreement and stock pledge with Vernon and Karmalene Brown to form a Texas corporation for the purpose of opening and operating a Mexican food restaurant. The restaurant closed after 22 days of operation, and the Barkers filed suit against the Browns, General Shopping Centers, Inc. (General) and Pinehollow Plaza, Ltd. (Pinehollow) for breach of the agreement and stock pledge. The trial court entered a directed verdict for the defendants at the close of the plaintiffs' case. Plaintiffs appeal, maintaining, in nine points of error, that they raised fact issues on each element of their claims.
An instructed verdict is properly granted at the close of a plaintiff's case if the plaintiff has failed to raise controverted fact issues and the defendant is thereby entitled to judgment as a matter of law. Shelton v. Swift Motors, Inc., 674 S.W.2d 337, 340 (Tex.App.San Antonio 1984, writ ref'd n.r.e.); Watts v. St. Mary's Hall, Inc., 662 S.W.2d 55, 59 (Tex.App.San Antonio 1983, writ ref'd n.r.e.). If reasonable minds may differ as to the truth of the controlling facts, a jury issue is present, Najera v. Great Atl. & Pac. Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948), and an instructed verdict is, thus, improper.
Points of error one, two and three assert that appellants raised a fact issue on (1) whether appellees breached the agreement and stock pledge, (2) whether appellees were personally obligated to pay appellant Bruce Barker a salary of $5,000 per month for six months, and (3) whether appellees were obligated to finance the restaurant for at least six months. The contract provided in pertinent part:
3. SIX MONTH OPTION: At the end of six months following the opening of the Mexican restaurant and cantina in Pine Hollow Plaza in Conroe, Texas, a review shall be made of the books and records of the restaurant to determine if the restaurant is at that time operating on a profitable basis.... In the event *510 that the restaurant is not operating on a profitable basis at that time, [appellees] shall have the right to call upon the escrow agent for the delivery of the assignment of all of [appellant's] stock in Conroe Restaurant, Inc. as well as any and all of the right, title and interest of [appellant] in said restaurant....
4. CAPITAL CONTRIBUTIONS: ...
[Appellees] agree to jointly contribute up to Twenty Thousand and No/100 Dollars ($20,000.00) as their capital contribution to the operation of the restaurant.
The contract also provided: "[Appellant] shall receive a guaranteed salary of [$5,000] per month...." and "As soon as possible, the [$5,000] per month will be paid from the gross revenues of the operation of the Mexican restaurant...."
The contract did not obligate appellees to contribute unlimited capital to keep the restaurant open for six months as appellants argue. Instead, appellees were required to contribute up to $20,000 which the undisputed evidence showed they did. In fact, appellees contributed far more than $20,000. The six-month provision dealt with another form of appellant's compensation, i.e., an ownership interest in the restaurant. In addition, appellants argue that "guaranteed salary" means that appellees were to personally guarantee his salary for the six-month period, whether the restaurant was open and he was managing it or not. We disagree. By the plain language of the agreement and read in the proper context, appellant's salary was to be paid from gross revenues of the restaurant and was "guaranteed" because it was not dependent upon the restaurant making a profit, as was his other compensation, i.e., receiving an ownership interest in the business. Points of error one, two and three are, thus, overruled.
In point of error nine, appellants assert that the trial court erred in not applying the doctrine of promissory estoppel to the case. The law is well settled that the doctrine of promissory estoppel is not applicable where there exists a legally valid contract between the parties. Stewart & Stevenson Serv., Inc. v. Enserve, Inc., 719 S.W.2d 337, 344 (Tex.App.Houston [14th Dist.] 1986, writ ref'd n.r.e.). The validity of the agreement and stock pledge in this case was never brought into issue. Accordingly, the trial court correctly concluded that appellants were not entitled to recover under a theory of promissory estoppel as a matter of law. Point of error nine is overruled.
In point of error eight, appellants assert that a directed verdict was improperly granted because it produced some evidence that General Shopping Center, Inc. and Pinehollow Plaza, Ltd. were obligated to appellants under the agreement and stock pledge. The contract unambiguously states, "THIS AGREEMENT ... is by and between Bruce D. Barker [appellant] ... and Vernon D. Brown and Karmalene K. Brown [appellees]...." They signed in their individual capacities and not as agents of either entity appellants claim are obligated under the agreement. Point of error eight is accordingly overruled.
In points of error four through six, appellants argue that a directed verdict was not proper since they produced some evidence (1) that appellees interfered with the performance of the agreement and stock pledge, (2) that appellees were negligent in assisting appellants in the formation and operation of the restaurant, and (3) that appellees acted "with willful, wanton and malicious conduct and in bad faith against appellants." Appellants contend that appellees wrongfully failed to finance any advertising for the restaurant or a grand opening. These contentions, however, fail as a matter of law.
A defendant's breach of his own contract with a plaintiff is not a basis for the tort of interference with contractual rights. See Gulf Atl. Life Ins. Co. v. Hurlbut, 696 S.W.2d 83, 101 (Tex.App. Dallas 1985), rev'd on other grounds, 749 S.W.2d 762 (Tex.1987). His proper recourse is an action for breach of contract. Point of error four is overruled. In addition, an action in tort for negligence cannot be maintained unless a defendant's conduct constituted the breach of a duty imposed by law, apart from it being an obligation *511 created by agreement of the parties, either express or implied. Rodriguez v. Dipp, 546 S.W.2d 655, 658 (Tex.Civ.App.El Paso 1977, writ ref'd n.r.e.). Appellants have failed to point out what duty, aside from any contractual obligation, appellees were under to approve the advertising and grand opening plans proferred by appellants. Point of error five is, thus, overruled. Last, exemplary or punitive damages are not recoverable for breach of contract. In a proper case, punitive damages are recoverable when the action is one in tort, but as a predicate to recovery, the plaintiff must show that he suffered actual damages. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 745 (Tex. 1986). Absent such actual damages in tort in this case, punitive damages were not recoverable. Point of error six is accordingly overruled.
Appellants argue in point of error seven, that they raised a fact issue on whether appellees interfered with appellants' contract negotiations with Polly's Restaurant. An action for interference with business relations has as its basis a person's right to be free from malicious interference while conducting negotiations which have a reasonable probability of resulting in a contract. Light v. Transport Ins. Co., 469 S.W.2d 433, 439 (Tex.Civ.App. Tyler 1971, writ ref'd n.r.e.). To prove a prima facie case of interference with business relations, a plaintiff must prove that:
(1) there was a reasonable probability that the plaintiff would have entered into a contractual relationship,
(2) defendant acted maliciously by intentionally preventing the relationship from occurring with the purpose of harming plaintiff,
(3) the defendant was not privileged or justified, and
(4) actual harm or damage occurred as a result.
Levine v. First Nat'l Bank of Eagle Pass, 706 S.W.2d 749, 751 (Tex.App.San Antonio), rev'd on other grounds, 721 S.W.2d 287 (Tex.1986). Actual malice need not be shown, i.e., ill will, spite, evil motive or purposing the injury of another. Rather, the interfering party must merely have acted unlawfully, intentionally and knowingly, without just cause or excuse. See Clements v. Withers, 437 S.W.2d 818, 822 (Tex. 1969); Light, 469 S.W.2d at 440.
Appellant Bruce Barker testified that he started working with Polly's Restaurant in September toward the end that appellants would take over the management of that restaurant. He testified that he had negotiated an agreement with Polly's where he would lease the restaurant for four years with a right of first refusal after that four-year period ran out. Appellant was to manage the restaurant and pay the owner rent. Appellant had actually done quite a bit of work preparing the restaurant for the transition which was to be consummated October 4, 1985, by the signing of the lease. Appellant testified he cleaned the kitchen, posted a sign at Polly's stating the restaurant was under new management, and opened a new account with a local supplier of food. According to appellant, when first approached about the possibility of managing the Mexican restaurant for the Browns, appellant stated he was not interested in another restaurant but was planning to take over Polly's. Vernon Brown contacted Barker October 2 by telephone explaining his proposition for a Mexican food restaurant and asking Barker if he would meet with him next week. According to Barker, he repeatedly refused to meet with Brown, explaining that he had already decided to sign the lease with Polly's in two days. Barker testified that Brown then told him not to sign anything until Brown could fly him to Tennessee to talk with him, which according to Barker he reluctantly agreed to do since Brown had shown such great interest. Barker also testified that he refrained from entering into the contract with Polly's out of reliance on Brown's statements. Barker testified he estimated a $200 per day profit in running Polly's Restaurant.
To be liable for wrongful interference, a defendant must have committed acts "calculated to cause damage" to a plaintiff's business, without right or justifiable excuse. C F & I Steel Corp. v. Pete *512 Sublett & Co., 623 S.W.2d 709, 713 (Tex. App.Houston [1st Dist.] 1981, writ ref'd n.r.e.). "Interference" does not include as here the bona fide exercise of one's own rights in a transaction. Id. at 715. Point of error seven is overruled.
The trial court judgment is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568698/ | 772 S.W.2d 276 (1989)
Mark Todd SIMPSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 07-88-0308-CR.
Court of Appeals of Texas, Amarillo.
May 31, 1989.
*277 Jeff Blackburn, Kay Davis, Amarillo, for appellant.
Barry E. Blackwell, Dist. Atty., Dumas, for appellee.
Before REYNOLDS, C.J., and BOYD and POFF, JJ.
BOYD, Justice.
In this appeal, appellant attacks the validity of probationary conditions imposed by the trial court after a jury verdict recommending his probation. It arises from appellant's plea of guilty to the offense of sexual assault. The punishment, by a jury, was set at five years confinement in the Department of Corrections and a fine of $5,000. The jury recommended that the confinement portion of the sentence be probated.
In seven points, appellant says the trial court erred in requiring as a condition of probation that he (1) serve thirty days in the Dallam County Jail; (2) serve ninety days in the Moore County Residential Work Release Center; (3) meet with an alcoholic evaluation counselor to determine whether he is in need of an alcoholic rehabilitation center; (4) pay for psychological counseling and all medical expenses for the victim; (5) not change marital status without written permission of the probation officer; (6) carry an identification card and show it to *278 any law enforcement officer who stopped him; and (7) maintain his hair in a neat and orderly manner, with any mustache or beard neatly trimmed. Appellant requests that the trial court judgment be reformed to delete these conditions. We reform the judgment as hereinafter provided and, as reformed, affirm it; the condition as to restitution is set aside and the cause remanded for proper assessment of that condition.
The authority of trial judges to suspend imposition or execution of sentences and place defendants on probation stems from Texas Constitution article IV, section 11A. That provision states:
The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe. (emphasis added)
This article represents a limited grant of clemency to the courts by the people. McNew v. State, 608 S.W.2d 166, 170 (Tex. Crim.App. [Panel Op.] 1978). It is not self-enacting and Texas Code Criminal Procedure Annotated article 42.12 (Vernon Supp. 1989) is one of the enabling acts. Burson v. State, 511 S.W.2d 948, 950 (Tex.Crim. App.1974). Article 42.12 is, of course, the statute under which appellant's probation was granted.
Since 1981, even in a case such as this where the probation is the result of a jury recommendation, the trial court is not limited to, but is rather guided by, the terms and conditions of probation enumerated in article 42.12, section 6, Texas Code Criminal Procedure Annotated (Vernon Supp.1989). Ellis v. State, 723 S.W.2d 671, 672-73 (Tex.Crim.App.1986); Armijo v. State, 751 S.W.2d 950, 953 (Tex.App. Amarillo 1988, no pet.). That general authority is, however, limited by the requirement that the permissible conditions should have a reasonable relationship to the treatment of the accused and the protection of the public. Armijo v. State, 751 S.W.2d at 953.
Moreover, because the court and the probationer have a contractual relationship, the violation of which could result in the loss of the probationer's freedom, the conditions of probation should be clear, explicit and unambiguous so that the probationer knows what is expected of him and the authorities may know with certainty the parameters of that probationer's prescribed and permitted activities. Johnson v. State, 672 S.W.2d 621, 623 (Tex.App.Corpus Christi 1984, no pet.); Franklin v. State, 632 S.W.2d 839, 841 (Tex.App.Houston [14th Dist.] 1982, no pet.).
Indeed, due process requires that specificity and adequate notice of the terms of probation be contained in the court's written order granting probation. Rains v. State, 678 S.W.2d 308, 310 (Tex.App.Fort Worth 1984, pet. ref'd). It is in the light of these explications that we examine the challenged conditions of probation.
Reiterated, the condition challenged by appellant's first point of error is condition nineteen which requires appellant to serve thirty days in the Dallam County Jail. In Custard v. State, 746 S.W.2d 4, 7 (Tex. App.Dallas 1987, pet. ref'd), in a case wherein felony probation was granted pursuant to jury recommendation, that appellant mounted a like attack upon a condition of probation requiring Custard to spend a thirty day sentence in the Dallas County jail. The Custard Court held: "This statute clearly grants discretion in the trial court to determine whether or not to require a period of penal confinement." Id. By its refusal of a petition for discretionary review, the Court of Criminal Appeals approved that result. Accordingly, we adopt that holding and overrule appellant's first point.
In his second point, appellant challenges the condition of probation that appellant serve ninety days in the Moore County Residential Work Release Center after serving thirty days in the Dallam County Jail. In argument under this point, appellant first invites us to reexamine our holding in Armijo v. State, 751 S.W.2d at 950, that the Moore County Residential *279 Work Release Center is, within the purview of the statute (Texas Code Criminal Procedure Annotated article 42.12, section 6(a)(12) (Vernon Supp.1989)), a "community based facility" to which probationers may be referred. We decline that invitation and reiterate that the center in question is such a facility within the purview of the statute.
Pointing out our holding in Armijo that the Moore County Work Release Center would also be included within the statutory definition of a "community rehabilitation center," appellant additionally argues his placement in the center was improper because of the lack of a requisite jury finding. Supporting that premise, he points out that section 6e(a)(3) provides that a defendant may be required to serve a term in a "community rehabilitation center" if:
the trier of facts determines that the defendant did not cause the bodily injury, serious bodily injury, or death of another as a result of the commission of the offense or use a deadly weapon during the commission of or flight from the offense.
Tex.Code Crim.Proc.Ann. art. 42.12, section 6e(a)(3) (Vernon Supp.1989). Continuing, he says that since the jury as the trier of fact made no such finding and such a finding cannot be inferred from the instant indictment and the plea of guilty, the requirement contravenes the direction of the statute and is, therefore, improper. We disagree with this ingenious contention.
At the punishment hearing, the jury was charged that it might recommend probation. In that charge, the jury was told that the trial court in granting probation might require any reasonable term of probationary conditions including the requirement to remain under supervision in a community based facility. Appellant did not object to any failure to charge that the fingdings mentioned in section 6e(a)(3) must be made before supervision in a community based facility could be ordered. Absent objection on that basis, even if such a specific finding by the jury was required, a holding we do not make, no reversible error is shown. Smith v. State, 513 S.W.2d 823, 828-29 (Tex.Crim.App.1974).
Continuing, appellant also contends that inasmuch as appellant was convicted in Dallam County and the center is located in Moore County, it could not be a "community" based center within the purview of the statute. Again, we disagree. Article 42.12, section 6e(a)(1), Texas Code Criminal Procedure Annotated (Vernon Supp.1989), provides that a community rehabilitation center may be utilized if the district is served by a community rehabilitation center. This court may judicially note that both Dallam and Moore Counties are located within the same judicial district. Tex.R. Crim.Evid. 201. That being the case, under the statute the use of the Moore County center for a Dallam County probationer is permissible. Appellant's second point is overruled.
In his third point, appellant argues that the trial court was without authority to require that appellant meet with an alcoholic evaluation counselor to determine if he was in need of an alcoholic rehabilitation center. A trial court's discretion in requiring conditions of probation is broad and, generally, only circumscribed by the requirement that the conditions not contravene direction of a statute and that they have a reasonable relationship to the treatment of the accused and the protection of the public. Tamez v. State, 534 S.W.2d 686, 691 (Tex.Crim.App.1976). Viewed in that light, we cannot say that this requirement is so unrelated to proper supervision of a probationer and the protection of the public as to exceed the parameters of the trial court's discretion. Appellant's third point is overruled.
In his fourth point, appellant challenges the condition of his probation that he "pay for psycological [sic] counseling and all medical expense for the victim T______ S______, for up to two years." Appellant says the condition is invalid because there is no fixed dollar amount, it is not limited to restitution owed as a direct result of the offense, the two year period is in excess of the statutory limit of one year on psychological counseling restitution, and, although *280 the statute does allow for future psychological restitution for a period of up to one year from the date of the order, there is no statutory provision for future medical expenses.
Article 42.12, section 6(a)(14), Texas Code Criminal Procedure Annotated (Vernon Supp.1989), provides that a probationer may be ordered to:
Pay a percentage of his income to the victim of the offense, if any, to compensate the victim for any property damage or medical expenses sustained by the victim as a direct result of the commission of the offense; ....
Section 6(f) allows a trial court, in a case such as this, to order probationers to:
[P]lay all or a part of the reasonable and necessary costs incurred by the victim for psychological counseling made necessary by the offense, upon a finding that the probationer is financially able to make payment. Any payments ordered under this subsection may not extend past one year from the date of the order.
The trial court's discretion to require a probationer to make restitution is a broad one. However, in Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. [Panel Op.] 1980), the Court of Criminal Appeals pointed out that there are limits upon that discretion. The Court wrote: "Due process considerations ... require that there must be evidence in the record to show that the amount set by the court has a factual basis." See also Thompson v. State, 557 S.W.2d 521, 525-26 (Tex.Crim. App.1977); Collins v. State, 701 S.W.2d 275, 276-77 (Tex.App.Dallas 1985, no pet.).
Since the burden is upon an appellant to see that a sufficient record showing error is before this Court, Texas Rule of Appellate Procedure 50(e), and no statement of facts is included in the record, we might presume that the trial court determined that psychological counseling was made necessary by the attack and that appellant was financially able to make payment of such counseling. However, that does not overcome the fact that the probation order does not specify any definite amount appellant must pay, nor does it define any mechanics by which such an amount may be determined to be paid by him for counseling made necessary by the attack. Furthermore, it does not specify the manner in which any such amount due would be paid, i.e., installments, as the bills become due, or any other manner. All of these are matters which must be determined and supported by a factual basis. In sum, the requirement does not meet due process requirements. Moreover, the provision for payment of future medical expenses is uncertain in amount, is not limited to such expense sustained as a direct result of the offense and is for a period in excess of that permitted by the statute. Appellant's fourth point is sustained.
In his fifth, sixth and seventh points, appellant challenges the conditions of probation that he not change his marital status without written permission of the probation officer, that he carry an identification card and show it to any law enforcement officer having lawfully stopped him for questioning or other legal action, and that he maintain his hair in a neat and orderly manner, with any mustache or beard neatly trimmed. Since appellant briefs and argues these points together, we will consider them together.
It is axiomatic that a probationer is subject to limitations from which ordinary citizens are free. Macias v. State, 649 S.W.2d 150, 152 (Tex.App.El Paso 1983, no pet.). However, even so, a probationer continues to enjoy a significant degree of privacy, Tamez v. State, 534 S.W.2d at 692, and any restriction upon a probationer's otherwise inviolable constitutional rights can be justified only to the extent actually necessitated by the legitimate demands of the probation process. Macias v. State, 649 S.W.2d at 152. Thus, proper probationary conditions are those that contribute significantly both to the rehabilitation of the convicted person and to the protection of society. Tamez v. State, 534 S.W.2d at 692. Thus, a condition which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself *281 criminal, and (3) requires or forbids conduct which is not reasonably related to the future criminality of the offender or does not serve the statutory ends of probation, is invalid.
Viewed in this light, we conclude that the conditions that appellant not change his marital status without permission of his probation officer and that he maintain his hair in a neat manner are not supportable. The requirement that appellant not change his marital status relates to conduct that is not of itself criminal, is closely and intimately connected with an individual's personal and private life, is not related to the crime for which appellant was convicted, and is not reasonably related to the future criminality of appellant. Moreover, and most seriously, it relegates to a non-judicial officer, without any judicial guidelines, the unrestricted right to make the decision about such an important and private right as an individual's marital status. That being the case, we cannot conclude that it is reasonably calculated to contribute significantly to the rehabilitation of appellant and to the protection of society in general. As such, it exceeds the limitation upon a judge's discretion in setting probation conditions articulated in such cases as Tamez v. State, 534 S.W.2d at 692.
Moreover, the condition that appellant maintain his hair in a "neat and orderly manner" is a condition that depends upon a subjective decision as to what is "neat and orderly." That subjective judgment is one which would vary from mind to mind and person to person. As such, it falls short of the requirement that probation conditions be clear, explicit and unambiguous so that the probationer and the authorities know exactly what is expected of him. Appellant's fifth and seventh points are sustained.
In his sixth point, appellant attacks the condition that he carry an identification card and show it to any law enforcement officer who might lawfully stop appellant. While the question is close, we conclude that the condition, when related to a lawful stop, is one which does not exceed the diminished expectation of privacy justifiably to be expected of a probationer being allowed to remain at conditional liberty after conviction of a crime. Appellant's sixth point is overruled.
In summary then, appellant's first, second, third and sixth points are overruled. Appellant's fourth, fifth and seventh points are sustained. Citing Ex parte Pena, 739 S.W.2d 50 (Tex.Crim.App.1987), appellant suggests that the trial court's judgment be reformed by deleting the conditions which we have found to be improper. The basis of the holding in Pena is that where a trial judge imposes an invalid condition of probation, the proper remedy is to reform the judgment of conviction by deleting the condition. Id. at 51. However, where the condition pertains to restitution, a lawful condition, but which is improperly expressed, the proper procedure is to remand the cause for a hearing to determine the proper amount of restitution to be ordered. Cartwright v. State, 605 S.W.2d at 289; Thompson v. State, 557 S.W.2d at 526.
Accordingly, the judgment of conviction is reformed to delete conditions 5(d) and 14 and, as reformed, is affirmed; the condition as to restitution is set aside and the cause is remanded for a hearing to determine the amount and procedure for payment of restitution in accordance with the terms of the statute. Thompson v. State, 557 S.W.2d at 526. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568721/ | 48 F.2d 378 (1930)
UNITED STATES
v.
NINETY-FOUR DOZEN, MORE OR LESS, HALF-GALLON BOTTLES CAPON SPRINGS WATER.
No. 22.
District Court, E. D. Pennsylvania.
December 8, 1930.
*379 Howard Benton Lewis, Asst. U. S. Atty., of Philadelphia, Pa., and John B. O'Donnell, Asst. to Solicitor, Department of Agriculture, of Washington, D. C.
Benjamin M. Golder, of Philadelphia, Pa., for defendant.
DICKINSON, District Judge.
This record will be found to be in a more or less confused state. This is due to the fact that the libel proceedings are directed against a few bottles of no special value in themselves either commercially or with respect to the public interest. The issue in the case is what the condition of the contents of these few bottles was at the time of shipment in interstate commerce. If, for illustration, the wholesomeness of Capon Springs water is not questioned, the fact that a particular shipment of a few bottles of water might be questioned would be of little concern to any one, especially in view of the fact that, even if the shipment was open to complaint at the time it was made, the lapse of time would have a correcting effect, so that the shipment would be wholesome at the time of hearing and indeed before the time the shipment would reach the market. The trial judge in consequence suggested that the issue be broadened so that the question of what we will call the wholesomeness of Capon Springs water as it came from the Springs and reached the market might be determined instead of the narrow issue of the wholesomeness of the particular shipment. This suggestion was tentatively accepted and the trial proceeded for a time upon this broader issue, but the tentative acceptance of the suggestion was afterwards withdrawn, and the issue confined to the narrow one indicated. The result of it has been that there is in this record evidence bearing upon what we will call the general issue of the wholesomeness of Capon Springs water, with which issue we have in strictness nothing to do. There is an unavoidable embarrassment in dealing with a narrow issue, such as that indicated, because of the indirect consequences and effects of a finding.
The grown or manufactured product of a dealer in a food, for illustration, might be wholesome and nutritious and yet a particular shipment have become unfit for food through what might be called accidental circumstances. The condemnation of the particular shipment might none the less have the effect of the inference drawn by consumers that the consumption of any of the product was harmful and the whole trade of the dealer be thus ruined. There might be no justification for the inference, and yet every one knows that to condemn any part of what a dealer is shipping causes the inference to be drawn by the consuming public, the prospective purchasers of the product, that it is all bad.
The Food and Drug Act (21 USCA § 1 et seq.) has a very beneficent purpose, and it is without doubt the duty of the courts to lend their aid to its efficient enforcement. At the same time it would be an unfortunate and unjustified consequence to have the value of the trade in a product wholly destroyed because a small shipment of that product had in some way become contaminated. We are all more or less finicky about the things we take into our stomachs. The slightest suspicion of careless or unsanitary methods in production or distribution might absolutely destroy the value of a large and important trade. The moral to be drawn from this is that a court should declare no condemnations without careful thought being given to the consequences which we have indicated. The wholesomeness of a food or drink cannot even be made the subject of a discussion without the possibility of consequences which would be deplored.
There is one part of the complaint made against this particular shipment which may, however, be freely discussed. The claimant here deals in a drinking or bottled water, which is also possibly bought with the thought that it has likewise some medicinal qualities. The water is known as Capon Springs water, which is taken from a spring in West Virginia. It is charged that the water as put upon the market is misbranded, evidenced by the labels on the bottles in which the water is marketed.
Section 8 of the act (21 USCA §§ 9, 10) defines the meaning of the term "misbranded." *380 The "article" is misbranded if "the package or label which shall bear any statement, design, or device regarding such article, or the ingredients or substances therein which shall be false or misleading in any particular."
It is charged that Capon Springs water is marketed under a label which describes it to be "Healing Water," thereby implying that the drinking of it will have curative and therapeutic results, when in fact the water is more accurately described as drinking water, having only the properties of what might be called ordinary spring water.
There is no meaner or more despicable fraud than that of persuading those afflicted with a disease to buy something on the promise that it will cure them or help them when the hope aroused is wholly delusive and the statements made fraudulently misleading. Any one would feel the call to aid in the suppression of frauds of this character. There is nothing in this case which would justify the finding that Capon Springs water is medicinal in the sense indicated. When one is speaking of a drinking water, it is difficult to draw the line between an effect which is merely beneficial and one which is medicinal. Any one may have a prejudice in favor of the water from some favorite well or spring and believe they are benefited by drinking it. So believing, they would not be condemned for recommending it to others, nor do we think the commercial exploitation of it would come within the condemnation of this act of Congress so long as the line of fraud was not crossed. One has only need to recur to the literature of his youth to recall the incident of the visit of Leather Stocking to the spring from which the famous Saratoga water is now taken, and to the tribute which is paid in "Westward Ho!" to tobacco. There is scarcely any locality in the country in which there is not a spring about the waters of which there are traditions more or less well authenticated that the waters of the spring were a favorite drink of the Indians. The languages of the different tribes of American Indians had this in common that they were figurative and abounded in metaphors. The names given to individuals ascribed to them high-sounding qualities. There is said to be such a tradition connected with the Capon Springs. This water was so highly valued by the Indians that it was given the name Capon, which, in the language of the particular tribe which inhabited the surrounding country, is said to have had the meaning of healing or healing water. There is an advertising value in such a tradition, the benefit of which the claimants have undoubtedly sought to get. For some reason, which is inscrutable, many people attach a value to Indian medical lore. Any one who has a nostrum, for which he desires to create a commercial demand, can do so successfully by panoplying some one in red paint and feathers and proclaiming the nostrum to be a favorite medicine among the Indians. This may be done in such a way as that it is clearly a fraudulent imposition and denounced as an offense against this act of Congress. On the other hand, it may be taken in such a way as to negative the thought of a real fraud and be nothing more than an advertising device to call attention to the thing which is offered for sale.
We see nothing in the label in this case which would justify a finding that it was fraudulent. The form of the label is
"Capon Springs Water known to the Catauaba Indians as `Ca-Ca-Paon' Healing Water.
"2 Quarts Net Bottled at the Springs. (Then follows an analysis in type too small to be conveniently read.)
"Natural Mineral Spring Water Famous for Two Centuries. Capon Water Co. Capon Springs, W. Va."
There is doubtless an advertising value in the stuttering orthography given to the words Catawba and Capon, but this label is as close an adherence to the truth as is customary in commercial labels, and speaks the truth as nearly as would be expected of any advertiser of a commercial product. We would not find as a fact in what measure of esteem the Capon Springs water was held by the Indians, but there is that in the record of this case which would support the statement that the word Ca-Ca-Paon means in the Indian dialect healing water. Whether it does or not we would not find from the evidence, but we do find that there is evidence that the word is said to have this meaning.
The count in the libel of misbranding is not sustained.
Some of the literature put out by the claimants may be characterized as not only florid, but is almost laughable in its over statements. Every one has heard, however, of extravagant claims made by the advocates of a liberal use of ordinary drinking water. This is epitomized in the slogan "flood your kidneys." This has no reference to any particular drinking water, but applies to any *381 water. All the extravagant claims made for drinking Capon Springs water are made for the liberal use of any drinking water. There is no reason to doubt that those who advocate the liberal use of drinking water honestly believe the practice to be beneficial. We are not prepared to make any finding that it is not, and we are far from finding that all the benefits claimed will be conferred. The point we have in mind to make is that the act of Congress does not interdict any one from advocating the liberal use of drinking water nor from enforcing the advocacy of it by extravagant predictions of the benefits which will follow. If this can be done in the case of water as water, we do not see how the claimants can be interdicted from saying the same thing about Capon Springs water.
The next count in the libel is based upon the sixth clause of section 7 of the act (21 USCA § 8). As before stated, this feature of the libel cannot even be discussed without consequences which, although unintended, might none the less be very harmful to the trade of the claimants. As before also stated, we are restricted in any findings which we may make to the few bottles of water which were seized.
We make the finding that this water at the time of the trial was free from the criticisms made of it and will continue to be free. We make this finding because the claimants have introduced evidence through the testimony of experts to this effect, which is uncontradicted, and also because the offer was made by the claimants to submit the water to analysis and microscopical examination for the government. This offer was declined and the testimony itself objected to because the question is asserted to be not what the condition of the water now is, but what it was at the time of seizure, and it would seem to be an admitted truth that the water would clear itself after a comparatively short time. The claimants assert that, in order to assure the wholesomeness of the water, it was their practice to keep it in storage for such a length of time as would leave no doubt of its wholesomeness before it was put upon the market. Whether this practice was in all cases followed it would not clear the claimants of the charge of shipping unwholesome water, if it was at the time of shipment unwholesome, even if the unwholesomeness were afterwards removed. Congress evidently had in mind the injustice which might be done through a charge of unwholesomeness of a particular shipment by being extended in the public mind to a condemnation of the entire product. The regulations are also mindful of this. It is because of this provided that, before any proceedings of condemnation are instituted, the interested persons shall be notified and given the opportunity "to show cause why the matter should not be referred for a prosecution as a violation of the Federal Food and Drug Act." The purpose of this procedure is manifest. It was, however, for reasons which, in the opinion of the officers of the Bureau justified the omission, not followed in the instant case. We think this should have been done, and, because of the omission to do it, that this count of the libel cannot be sustained. The purpose of the regulation in consonance with the intent of Congress is that the reputation of a food product shall not be blasted by the institution of proceedings without a full opportunity afforded to the parties concerned to convince the Department, if they can, that such proceedings should not be instituted. If the product be one, the shipment, of which in interstate commerce, should be interdicted, proceedings may be instituted and the shipment stopped, but, if the condemnation of the product is due to something which may be corrected, and the product itself does not call for condemnation, the proceedings need not be instituted.
This leads to a comment, in the making of which we may be going beyond our judicial duty, but which nevertheless we feel impelled to make. The comment is that the difficulties in which the claimants find themselves are largely of their own making. Apparently they have failed to appreciate the gravity and importance of the duties which the officials of this Bureau are called upon to perform. Instead of recognizing that the activities of the officials are not only justified but demanded of them in furtherance of the protection of the public health, the claimants seem to have resented the intervention of the officials as an unwarranted intrusion into the private business of the claimants. Realizing, as of course the claimants did, how much harm to their trade a charge of unwholesomeness against the Capon Springs water would have, whether the charge was well founded or ill founded, they resented the acts of the officials as if this injury was intended. This attitude on their part was wholly unjustified.
The Department needs no vindication at the hands of this court, but we feel free to express our absolute confidence in the good faith of the action taken and that it was done solely in the performance of duty and for the protection of the public health.
*382 The resentment of the claimants against the intervention of the Department and the general attitude of the claimants was interpreted as meaning a defiance of the Department and a challenge to them "to do their worst." Because of this, the authorities felt justified in proceeding without any preliminary hearing. This feeling is natural enough and excusable in itself, but so far forth from justifying any refusal or failure to give the claimants the preliminary hearing called for by the regulations should have induced a careful regard to all the rights of the claimants. The Department doubtless viewed the provision for a preliminary hearing as applying only to criminal prosecutions, but there is the same reason for extending it to proceedings in rem.
Another comment is, we think, likewise within our province to make. It is that many of the claims made of benefit from the drinking of Capon Springs water are so extravagant as to justify the characterization of being ridiculous. No trial judge is in a position to pit his judgment of the benefit to the seller of certain commercial practices against the judgment of commercial men. We venture, however, the statement that those who buy Capon Springs water or other spring water do so because they wish a water to drink which is what is called "pure" and which is palatable. Very few, if any, users of any of the spring waters would be induced to buy them in the hope that they will prove to be the panacea which, in the literature put out by the claimant company, this water is claimed to be.
We are not prepared to say that the tradition that this water was highly regarded by an extinct tribe of Indians in the far distant past may not have some real advertising value, and, as we have already observed, we think the claimants can avail themselves of the statement of what some Indian, now dead for many generations, may have thought of the water from this particular spring, but extravagant claims to a panacea should be dropped.
A final comment is that the parties to this cause, as if upon the preliminary hearing provided by the regulations, should meet and reach a working agreement such as would assure to the authorities a compliance with the law and leave the claimants free to conduct their business undisturbed by any complaints from the Department. We see no difficulty in reaching such a working agreement. The claimants are bound to comply with all the requirements of the law, and we know that all the authorities wish is assurance that there will be such compliance. What is called for is a get-together attitude.
The conclusion reached is that the libel should be dismissed, and a form of decree in accordance herewith may be submitted.
We make the following specific findings of fact and conclusions of law:
Findings of Fact.
1. The Capon Springs water is a natural water obtained from springs near Capon Springs, W. Va.
2. There is evidence, sufficient to justify the claimants in making reference to it of a tradition in the neighborhood of the springs that the word "Capon" is a corruption of the word "Ca-Ca-Paon," meaning, in the dialect of the Catawba Tribe of Indians, "Healing Water." There is no evidence, however, that the word ever had this meaning in spite of the tradition to that effect.
3. No hearing in the nature of a rule to show cause called for by the regulations was given to the claimants, but, on the contrary, they were refused all information and opportunity to correct the information upon which the libelant had based its libel.
Conclusions of Law.
1. The label used in this case by the claimants is not a misbranding within the meaning of the act of Congress on the subject.
2. The count in the libel based upon clause 6, section 7, of the act of Congress, is dismissed because of the failure to grant the claimants the preliminary hearing allowed by the regulations.
3. The libel should be dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568708/ | 10 So. 3d 31 (2008)
Ex parte MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES and Alabama Department of Human Resources.
In re the Matter of D.R.S., a minor child.
2070163.
Court of Civil Appeals of Alabama.
May 23, 2008.
*32 Troy King, atty. gen., and Sharon E. Ficquette, chief legal counsel, and James E. Long, deputy atty. gen., for petitioner Department of Human Resources.
Courtney W. Tarver, deputy atty. gen. and gen. counsel, and Tamara R. Pharrams, asst. atty. gen., for petitioner Alabama Department of Mental Health and Mental Retardation.
Patricia D. Warner, circuit court judge.
Beverly J. Howard, Montgomery, guardian ad litem.
PER CURIAM.
The Montgomery County Department of Human Resources ("the County DHR") and the Alabama Department of Human *33 Resources ("the State DHR")[1] petition this court to issue a writ of mandamus ordering the Montgomery Juvenile Court to vacate two orders one entered on November 13, 2007, and one entered on November 27, 2007. The petitioners seek to have the November 13 order vacated insofar as it directed (1) that D.R.S., a 17-year-old girl who is in the legal custody of the County DHR, be placed in the National Deaf Academy ("the NDA") in Mt. Dora, Florida, or an equivalent facility, (2) that the State of Alabama pay the expenses of D.R.S. at the NDA, and (3) that Liz Hill, an employee of the Alabama Department of Mental Health and Mental Retardation ("the Department"), be reinstated as the therapist for D.R.S. The petitioners seek to have the November 27 order, which denied them a transcript of an evidentiary hearing, vacated. We grant the petition in part and deny the petition in part.
D.R.S. is deaf and mentally retarded. She also suffers from diabetes, mental illness, and alopecia. The record indicates that the juvenile court has exercised jurisdiction over D.R.S. for a number of years. During some of those years, D.R.S. was in the legal custody of various relatives. The most recent proceedings involving D.R.S. began on May 23, 2007, when the County DHR petitioned the juvenile court to find that D.R.S., who was then in the legal custody of her paternal aunt, was dependent and to award custody of D.R.S. to the County DHR. Upon the filing of the County DHR's petition, the juvenile court appointed an attorney to serve as D.R.S.'s guardian ad litem. On May 30, 2007, following an expedited hearing, the juvenile court found that D.R.S. was dependent and granted the County DHR legal custody of D.R.S.
The County DHR made arrangements for D.R.S. to reside temporarily at the NDA while it sought joint-agency funding from the "State Multiple Needs Team" for a long-term placement for D.R.S. On June 15, 2007, the juvenile court entered an order requiring the County DHR to give the juvenile court 30 days' written notice of any proposed change in D.R.S.'s placement.
On June 22, 2007, the State DHR, acting on behalf of the County DHR (hereinafter sometimes collectively referred to as "DHR"), notified the juvenile court in writing of the County DHR's intent to change D.R.S.'s placement from the NDA to Baypointe Children's Residential Services ("Baypointe") in Mobile, Alabama, and moved the juvenile court to amend its June 15, 2007, order to allow the change in placement immediately. As grounds for seeking the immediate change in placement, DHR alleged that Baypointe could provide services that were equivalent to the NDA; that the State Multiple Needs Team had approved joint-agency funding for residential placement of D.R.S. at Baypointe at a cost not to exceed $435 per day from the date of admission through September 30, 2007; and that Baypointe then had a space available for D.R.S. but that it might not have space available at a later date. The motion was accompanied by a brief asserting that the juvenile court lacked authority to condition placement of *34 D.R.S. on the juvenile court's prior approval; that the constitutional doctrine of separation of powers prohibited the juvenile court from preventing the placement of D.R.S. at Baypointe; that the juvenile court lacked the authority to control the expenditure of State funds by directing that State agencies place D.R.S. at a particular facility; that the juvenile court lacked authority to require State agencies to incur the cost of providing care for a child at a private facility; and that the counties of the State are statutorily responsible for the care of indigent children directed by a juvenile court.
An entry made by the juvenile court on the case-action summary on June 26, 2007, indicates that on that date the juvenile court held a hearing on DHR's motion to amend the juvenile court's June 15, 2007, order and made a finding that it was not in the best interest of D.R.S. to be moved from the NDA.
On July 27, 2007, the guardian ad litem moved the juvenile court to find the County DHR in contempt. As grounds, the guardian ad litem alleged, among other things, (1) that the County DHR had moved D.R.S. to Baypointe on July 25, 2007; (2) that, contrary to DHR's representations to the juvenile court, Baypointe did not provide services that were equivalent to those provided by the NDA; and (3) that Baypointe was an unsuitable placement for D.R.S. The County DHR denied the allegations in the guardian ad litem's motion.
Following an evidentiary hearing, the juvenile court entered the November 13 order. That order found that D.R.S. had thrived while she was at the NDA and that she had been mistreated while she was at Baypointe. Based on those findings, the juvenile court in its November 13 order concluded, in pertinent part:
"1. That the Court specifically finds that the Alabama Department of Human Resources has not made reasonable efforts to assure the health, safety and educational and medical needs of [D.R.S.] by placing her at Baypointe. Despite DHR's assertion that this Court cannot tell DHR where to place a child, the Court believes that when DHR fails or refuses to protect a child from harm or mistreatment, the Circuit Court must step in to stop the continued medical maltreatment, over-medication and personal violations of [D.R.S.]
"2. That [D.R.S.] shall be immediately transported to Mt. Dora, Florida to the National Deaf Academy (or other facility equivalent to the National Deaf Academy) where she shall remain at the expense of the State of Alabama until such time as she is able to function and communicate independently. It is undisputed that presently Alabama has no such facility within its borders.
"....
"7. That the Court orders that Mrs. Liz Hill be reinstated as therapist for [D.R.S.] by [the Department], so as to allow her to continue her work with this multi-needs child. Ms. Hill has clearly made progress and has achieved a level of trust which cannot be duplicated quickly. It cannot be in this child's best interest to have Ms. Hill summarily removed from interaction with [D.R.S.]"
(Emphasis added.)
DHR then requested that the court reporter who recorded the evidentiary hearing provide it with a transcript of the evidentiary hearing; however, the court reporter informed DHR that it would have to obtain a court order authorizing the court reporter to provide it with a transcript. Accordingly, DHR moved the juvenile court to authorize the court reporter to provide it with a transcript. The juvenile *35 court denied that motion. DHR then petitioned this court to issue a writ of mandamus.
Standard of Review
The Alabama Supreme Court stated the standard for the issuance of a writ of mandamus in Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala.1995):
"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."
A petition for the writ of mandamus is a proper method for challenging a juvenile court's order requiring a State agency to pay the expense of placing a child committed to its custody in a private facility. See, e.g., In re D.M., 738 So. 2d 898, 902 (Ala. Civ.App.1999).
I. The Entity Responsible for Paying for the Child's Care
The petitioners first argue that they have a clear legal right to a writ of mandamus directing the juvenile court to vacate its November 13 order insofar as that order required the State of Alabama to pay the expenses of D.R.S. at the NDA. The petitioners assert that § 12-15-10, Ala.Code 1975, and the separation-of-powers provisions of the Alabama Constitution mandate that Montgomery County rather than the State of Alabama is the entity responsible for the cost of D.R.S.'s care. We agree.
Section 12-15-10, a part of the Alabama Juvenile Justice Act, which deals with proceedings in the juvenile court, provides, in pertinent part:
"All expenses necessary or appropriate to the carrying out of the purposes and intent of this chapter and all expenses of maintenance and care of children that may be incurred by order of the court in carrying out the provisions and intent of this chapter, except costs paid by parents, guardians, or trustees, court costs as provided by law and attorney fees shall be valid charges and preferred claims against the county and shall be paid by the county treasurer when itemized and sworn to by the creditor or other persons knowing the facts in the case and approved by the court."
(Emphasis added.)
In Ex parte Department of Mental Health, 511 So. 2d 181 (Ala.1987), the Alabama Supreme Court held that an order of the Houston Juvenile Court directing the Department to place a child at Charter Woods Hospital, a private facility, for a psychiatric evaluation to be paid for by the Department violated § 12-15-10 and the separation-of-powers provisions of the Alabama Constitution. The court stated:
"[In § 12-15-10], the Legislature expressly designates the county as the entity responsible for maintenance and care. Therefore, according to our statutory scheme, the county, not the State or a department thereof, is responsible for any monies due Charter Woods Hospital.
"The Court of Civil Appeals' judgment ordering [the Department] to pay for the child's care and treatment not only runs afoul of § 12-15-10, but also violates §§ 42 and 43 of the Constitution of Alabama of 1901, which sections deal with the doctrine of separation of powers.
"Although the Legislature granted authority to the juvenile courts to commit children to the custody of [the Department] and authority to avail themselves of the facilities and personnel of [the *36 Department], the Legislature did not confer upon the juvenile courts the authority to commit a child to the custody of [the Department] and then order that the child be placed in a private psychiatric facility. See Code of Alabama 1975, § 12-15-90. Had the Legislature intended to grant authority to juvenile courts to commit a child to the custody of [the Department] and then order that the child be placed in a private psychiatric facility at the expense of [the Department], it would have been a simple matter for the Legislature to so provide. The Legislature's power to determine the appropriations for each state agency cannot be usurped by either of the other branches of government. [The Department] is mandated by the Legislature to act, through its commissioner, `in any prudent way to provide mental health services ... for the people of Alabama.' Code of Alabama 1975, § 22-50-1, et seq. [The Department] is therefore charged by the Legislature to accept minors alleged to be mentally ill and treat them by means of its various programs and facilities. Nowhere in any of these statutes does the Legislature state that anyone other than [the Department] is authorized to care for and treat these children.
"Furthermore, in In re McCain, 348 So. 2d 780 (Ala.1977), this Court was presented with a situation substantially similar to the one sub judice. There, the trial court had made McCain a ward of the court, placed him in an out-of-state mental health center, and required [the Department] to pay for McCain's care and treatment. In striking down the court's order, this Court stated:
"`To allow this provision of Judge Davis's order to stand would allow the unrecoverable expenditure of State funds from an appropriation not intended for child care and from which Judge Davis has no authority to direct expenditure of funds for child care.'
"348 So.2d at 782. The rationale behind this Court's decision in McCain is equally sound in this case. We find no merit in the argument that the case before us is distinguishable from McCain because of the fact that in McCain, the Court labeled as `court costs' the amount to be paid by [the Department]. Whatever their designation, costs for care and treatment of a minor placed in a private institution cannot be charged to [the Department]. Therefore, that portion of the Court of Civil Appeals' opinion that held [the Department] responsible for the child's expenses while he was in Charter Woods Hospital is erroneous and it is hereby reversed."
511 So.2d at 183-84. See also In re N.D.M., 837 So. 2d 316 (Ala.Civ.App.2002) (holding that the county must pay the expenses of an indigent minor committed to the custody of the Department); In re D.M., 738 So.2d at 901 (plurality opinion) (stating that "[o]ur supreme court has held that neither § 12-15-71(c)(4) nor § 12-15-70 authorizes the juvenile court to require a department of the state, as opposed to its counties, to pay for mental health treatment of the child when the parents or other persons legally obligated to care for the child cannot"); Alabama Dep't of Mental Health & Mental Retardation v. State, 718 So. 2d 74, 76 (Ala.Civ.App.1998) (stating that "Ala.Code 1975, § 12-15-10, requires the appropriate county to bear the expense for care and treatment of indigent juveniles"); Ex parte State Dep't of Human Res., 716 So. 2d 717, 718 (Ala.Civ.App. 1998) (stating that "if the child's parents, guardians, or trustees are unable to pay the medical expenses, the county is obligated to do so"); Ex parte State Dep't of Mental Health & Mental Retardation, 555 So. 2d 1132, 1133 (Ala.Civ.App.1989) (stating *37 that "if the child's parents or others legally obligated are financially unable to pay such expenses, the county is statutorily obligated to do so"); and In re T.L.H., 607 So. 2d 295 (Ala.Civ.App.1992) (same).
The petitioners have established their right to a writ of mandamus directing the juvenile court to vacate its November 13 order insofar as that order required the State of Alabama to pay the expense of placing D.R.S. at the NDA.
II. The Child's Placement and Therapist
Next, the petitioners contend that they are entitled to a writ of mandamus directing the juvenile court to vacate its November 13 order insofar as that order required that D.R.S. be placed at the NDA and that Liz Hill be reinstated as her therapist. Citing In re Morris, 491 So. 2d 244 (Ala.Civ.App.1986), the petitioners argue that the juvenile court overstepped the bounds of Article III, §§ 42 and 43, of the Alabama Constitution of 1901 (the separation-of-powers provisions) when it specified the facility and the therapist that were to provide care for D.R.S., thereby interfering, they say, with DHR's discretion in caring for a child placed in its custody.
In Morris, the juvenile court ordered that a child in need of supervision be placed in the Eufaula Adolescent Adjustment Center, a facility operated by the Department. The juvenile court further ordered that, under no circumstances, was the child (1) to be sent to another facility, (2) to be placed for a visit, or (3) to be released without the express written consent of the court. The Department appealed to this court, arguing that the juvenile court had overstepped its constitutional authority by adding the three conditions to the placement order. This court stated:
"[T]he Department has been empowered with discretion to deal with ... troubled children in a professional manner. Moreover, by authorizing the juvenile court to commit mentally disturbed children to the care and custody of the Department, the legislature obviously intended to allow the juvenile court to avail itself of the Department's facilities and personnel in dealing with mentally disturbed children. See § 12-15-90, Code 1975. However, in so doing, the legislature did not authorize the juvenile court to tell the Department how to exercise the discretion reposed in it. (The allegation before us does not suggest that the Department has abused, neglected, or improperly treated a child committed to its care.)
"`Great care must be exercised by the courts not to usurp the functions of other departments of government. § 43, Constitution 1901. No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary. Accordingly ... courts cannot and will not interfere with the discretion vested in other units or branches of government.'
"Finch v. State, 271 Ala. 499, 124 So. 2d 825 (1960).
"In the present case the juvenile court instructed the Department that it could not take any action with regard to Morris without its prior written approval. Such a restriction placed on the Department by the court effectively invaded and interfered with the Department's exercise of its discretion in trying to treat and care for Morris after he had been committed to its custody. In other words, the juvenile court did not allow the Department to do its job according to the mandate of the legislature but, instead, proceeded to tell the Department how to deal with Morris. Such action is not within the power of the *38 juvenile court at this stage of the proceedings. We are not to be understood as holding that the juvenile court cannot review actions taken by the Department in the treatment and care of mentally disturbed children committed to its care. All we are saying is that the Department must be given an opportunity to carry out its legislative mandate."
491 So.2d at 246 (emphasis added). The instant case is distinguishable from Morris because in this case the juvenile court did not dictate to DHR how it was to care for D.R.S. without first giving DHR the opportunity to carry out its legislative mandate. As this court noted in Morris, a juvenile court has the authority to review a State agency's care of a child committed to its custody and to direct the agency to change the child's care if the court determines that the care that the child is receiving is not in the child's best interest.
The conclusion of the dissent in this case that the juvenile court violated the separation-of-powers provisions of the Alabama Constitution when it specified the facility and the therapist that were to provide care for D.R.S. is wrong for two reasons. First, the juvenile court's order does not specify that the child be returned to the NDA. Instead, the order states that the child shall be "immediately transported to Mt. Dora, Florida to the National Deaf Academy (or other facility equivalent to the National Deaf Academy)." (Emphasis added.) Second, Ex parte James, 836 So. 2d 813 (Ala.2002), cited by the dissent, is not authority for the separation-of-powers issue presented in this case.
In James, the Montgomery Circuit Court held that Alabama's method of funding its public-education system was unconstitutional and ordered the legislature to formulate a constitutionally adequate system of school financing. The Alabama Supreme Court held that the circuit court's judgment violated the constitutional separation-of-powers provisions because "the duty to fund Alabama's public schools is a duty that for over 125 years the people of this State have rested squarely upon the shoulders of the Legislature." 836 So.2d at 815 (footnote omitted; emphasis added). See Article XIV, § 260, Ala. Const.1901.
In contrast, the duty of the juvenile court to determine whether a minor child's best interests are being protected overlaps with the duty of a State agency to care for and treat juveniles who have been committed to its custody. See Alabama Dep't of Mental Health & Mental Retardation v. Andres, 515 So. 2d 9 (Ala.Civ.App.1987). In Andres, this court stated:
"We hardly need to state that the polestar in cases involving the custody of juveniles is the best interests of the child. Section 12-15-90(m) [, Ala.Code 1975,] gives the committing court continuing jurisdiction over those minors `for so long as the minor or child is in the custody of the department of mental health and mental retardation.' This continuing responsibility of the court to the child's best interests overlaps the Department's legislative authority to care for and treat minors in its custody. The difficulty posed by this case is thus seen to be one involving a conflict between two separate branches of state government on a matter whose outcome, at least in some degree, is entrusted to the authority of both of them."
515 So.2d at 11 (internal citation omitted). In Andres, this court was required to determine whether the juvenile court had "exceeded its authority in directing treatment of [a] child after she was committed but prior to her being placed in the actual custody of the Department" or, as the court phrased the question, "[D]id the court, under the facts of this case, give the *39 Department an opportunity to carry out its legislative mandate as required by In re Morris, supra?" Id. We ultimately held that the juvenile court had exceeded its authority by rejecting the Department's treatment plan for the child before the plan was ever implemented.
That is not the case here. The State Multiple Needs Team, with the approval of DHR, initially recommended that D.R.S. be placed at the NDA. The juvenile court specifically found that D.R.S had been thriving at the NDA but that, after DHR's plan to transfer D.R.S. to Baypointe was implemented, the child had been mistreated and had regressed. In contrast to Morris, the juvenile court's order in this case "does ... suggest that [DHR] has abused, neglected, or improperly treated a child committed to its care."
The juvenile court's November 13 order did not fail to allow DHR to "carry out its legislative mandate." Instead, the juvenile court reviewed D.R.S.'s progress under the transfer plan that had been implemented, determined that the transfer plan was not serving D.R.S.'s best interests, and returned the parties to the previous plan that, all parties acknowledged, had been working. In essence, the juvenile court fashioned an equitable remedy the rescission of DHR's transfer plan and the restoration of the parties to the status quo ante, see, e.g., Leonard v. Terminix Int'l Co., 854 So. 2d 529 (Ala.2002), and Brindley v. Brindley, 197 Ala. 221, 72 So. 497 (1916) an action that fell within the juvenile court's authority to review the service plan for a multiple-needs child pursuant to § 12-15-71(h)(1), Ala.Code 1975, and did not encroach on the discretion of the State agency that had, initially, developed that very plan.
Accordingly, we hold that the petitioners have not established their right to a writ of mandamus directing the juvenile court to vacate its November 13 order insofar as that order required that D.R.S. be placed at the NDA and that Liz Hill be reinstated as her therapist.
III. The Transcript of the Evidentiary Hearing
Finally, the petitioners argue that they are entitled to a writ of mandamus ordering the juvenile court to vacate its November 27 order denying them a transcript of the evidentiary hearing because, they say, as parties to the proceeding, they are entitled to a transcript under Rule 20(B), Ala. R. Juv. P., upon requesting one and paying for it. In pertinent part, Rule 20(B) provides:
"(B) Testimony shall be transcribed by the person designated by the juvenile court judge; it shall be transcribed only upon order of the court or upon the request of any party at the party's own expense. ..."
(Emphasis added.)
Rule 20(B) clearly provides that any party to a proceeding in juvenile court is entitled to a transcript of an evidentiary hearing upon requesting it and paying for it. The petitioners were parties to this proceeding in the juvenile court. Therefore, the juvenile court did not have the authority under Rule 20(B) to deny the petitioners a transcript of the evidentiary hearing. Their motion seeking a transcript states: "According to ... Alabama Rule[ ] of Juvenile Procedure 20(B) ... `Testimony shall be transcribed by the person designated by the juvenile court judge; it shall be transcribed only upon order of the court or upon the request of any part at the party's own expense."' This language implied that the petitioners were ready, willing, and able to comply with Rule 20(B), which requires that a party pay for the transcript. Moreover, nothing in Rule 20(B) requires that a party must expressly offer to pay for the transcript *40 when the party requests it; it merely requires that the party indeed pay for it. Given the language in the petitioners' motion implying that they were willing to comply with Rule 20(B), the absence from their motion of an express offer to pay for the transcript did not justify the juvenile court's denying their motion. Accordingly, we hold that the petitioners have established their right to a writ of mandamus directing the juvenile court to vacate its order denying them a transcript of the evidentiary hearing.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.
MOORE, J., concurs in the result, without writing.
BRYAN, J., concurs in part and dissents in part, with writing.
BRYAN, Judge, concurring in part and dissenting in part.
I concur in the main opinion insofar as it grants the petition for a writ of mandamus; however, I respectfully dissent from the main opinion insofar as it denies the petition. I agree that a juvenile court has authority to review a State agency's care of a child committed to its custody in order to determine whether that care is in the best interest of the child. Moreover, I agree that, if the juvenile court determines that the care the State agency is providing is not in the child's best interest, the juvenile court has the authority to order the State agency to change that care. Furthermore, I agree that the juvenile court, in ordering the State agency to change the care it is providing the child, can dictate, with some degree of specificity, the changes that must be made. For example, if the State agency has ceased providing a certain kind of therapy and the juvenile court determines that the best interest of the child requires the resumption of that kind of therapy, the juvenile court has the authority to order the State agency to resume providing that kind of therapy. However, in my opinion, the separation-of-powers doctrine prohibits the juvenile court from dictating the specific therapist who must provide that kind of therapy. Cf. Ex parte James, 836 So. 2d 813, 817 (Ala.2002) ("[T]he pronouncement of a specific remedy `from the bench' [in the Equity Funding case] would necessarily represent an exercise of the power of that branch of government charged by the people of the State of Alabama with the sole duty to administer state funds to public schools: the Alabama Legislature."). Thus, I agree with the main opinion that there is some overlap of the powers of the executive and the judicial branches of government with respect to the treatment of children committed to the custody of State agencies, see Alabama Dep't of Mental Health & Mental Retardation v. Andres, 515 So. 2d 9, 11 (Ala.Civ.App.1987), but I disagree with the main opinion regarding the extent of that overlap I do not view the overlap as extending so far as permitting the juvenile court to name the specific treatment facilities or the specific therapists, whereas the main opinion does. Accordingly, I would grant the petition insofar as it seeks a writ of mandamus directing the juvenile court to vacate the portion of its November 13, 2007, order directing that D.R.S. be placed at the National Deaf Academy or an equivalent facility and that Liz Hill be reinstated as D.R.S.'s therapist.
NOTES
[1] The County DHR is a State agency. See Ex parte Department of Human Res., 716 So. 2d 717, 718 (Ala.Civ.App.1998).
"The county departments of human resources serve as agents of the State Department of Human Resources; the State Department is empowered to designate the county as its agent and to assist the counties in their various duties when necessary. See § 38-6-2, Ala.Code 1975; Admin. Rules 660-1-2-.01(g) and 660-1-2-.02."
State Dep't of Human Res. v. Estate of Harris, 857 So. 2d 818, 819 n. 1 (Ala.Civ.App.2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568713/ | 10 So. 3d 1014 (2007)
CHADWICK TIMBER COMPANY
v.
Charles PHILON.
2050697.
Court of Civil Appeals of Alabama.
March 16, 2007.
Rehearing Denied May 11, 2007.
*1016 William E. Pipkin, Jr., of Austill, Lewis, Pipkin & Moore, P.C., Mobile, for appellant.
C. Robert Montgomery, Chatom, for appellee.
THOMPSON, Presiding Judge.
In April 2002, Charles Philon sued his employer, Chadwick Timber Company ("Chadwick Timber"), seeking workers' compensation benefits. In his complaint, Philon alleged that on March 8, 2001, he was involved in an on-the-job accident that caused him to suffer injuries to his left leg. In his complaint, Philon also alleged that "[s]ubsequent to said injury ... [he] now suffers a permanent total disability of his person." Chadwick Timber answered and denied liability.
The trial court scheduled a trial of the matter for May 15, 2003, but that trial date was postponed and rescheduled several times. The trial court conducted a hearing and received ore tenus evidence on September 15, 2005. On April 13, 2006, the trial court entered a judgment finding Philon to be permanently and totally disabled and awarding benefits accordingly. Chadwick Timber timely appealed.
When this court reviews a trial court's judgment in a workers' compensation case, that judgment will not be reversed if it is based on factual findings that are supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. Our supreme court has defined substantial evidence as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Further, this court reviews the facts "in the light most favorable to the findings of the trial court." Whitsett v. BAMSI, Inc., 652 So. 2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So. 2d 262 (Ala.1996). This court has also concluded: "The [1992 Workers' Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court." Edwards v. Jesse Stutts, Inc., 655 So. 2d 1012, 1014 (Ala.Civ. App.1995).
The record indicates that on March 8, 2001, Philon was involved in an on-the-job accident in which he broke his left leg. Philon testified at the trial of this matter that he also injured his lower back in the March 8, 2001, on-the-job accident. Philon was first taken to Gilbertown Family Medical Clinic and then to the hospital at the University of South Alabama ("USA"). Philon testified that he informed people at both medical facilities that he visited immediately following the accident that he had back pain. However, the medical records from those facilities document only the leg injury, and USA's records state that Philon did not complain of any injury other than the one to his left leg.
On March 9, 2001, Dr. Albert Pearsall performed surgery on Philon's leg and inserted three screws into the broken bone. Later, in July 2001, Dr. Pearsall performed another surgery on Philon's leg to remove two of those screws. Dr. Pearsall testified that because of the leg injury, on November 26, 2001, he determined Philon to have reached maximum medical improvement and assigned Philon a 10% medical-impairment rating. Dr. Pearsall testified that because X-rays indicated that Philon's leg injury appeared to have healed perfectly, he based the medical-impairment *1017 rating on Philon's continued complaints of pain. Dr. Pearsall testified that because Philon first complained of back pain shortly before he determined the medical-impairment rating, Philon's back-pain complaints did not have any bearing on his determination of Philon's medical-impairment rating.
Dr. Pearsall testified that his first notation that Philon had complained of suffering from back pain was dated September 28, 2001. Dr. Pearsall testified that at the time Philon first mentioned his pack pain, Dr. Pearsall decided to schedule a functional capabilities evaluation ("FCE") to determine whether, and at what level, Philon could resume his employment. The next notation indicating that Philon had complained of back pain was dated October 30, 2001, approximately one week before the scheduled FCE. At the hearing, Philon testified that he had informed Dr. Pearsall several times that he was having back pain; Philon acknowledged, however, that he "might have" told Dr. Pearsall that that back pain was mild. Dr. Pearsall testified that he could have failed to document one complaint of back pain before September 2001 but that he would "find it almost impossible to believe that [Philon] would have mentioned [his claim of back pain] to me on multiple occasions and I would have ignored him on every occasion."
During Dr. Pearsall's deposition, the parties' attorneys questioned Dr. Pearsall regarding whether a change in Philon's gait due to his leg injury could cause Philon's back pain. Dr. Pearsall responded that it was possible that a change in Philon's gait due to the leg injury could contribute to cause some back pain. Dr. Pearsall stated that he believed it was "possible, but not likely," that the injury to Philon's leg caused Philon's back pain.
The record indicates only one instance in which Philon sought treatment for back pain. On April 23, 2002, Philon visited Wayne General Hospital in Waynesboro, Mississippi, with complaints of lower-back pain. On that occasion, the doctor's report for that hospital visit indicates that the doctor diagnosed Philon as having "low back pain" after a "negative lumbar spine exam." Philon acknowledged that he did not discuss that treatment with the workers' compensation provider and that he obtained coverage for that hospital visit through his wife's health-insurance provider.
At the hearing, Philon presented the testimony of Bill Vinson, a vocational-rehabilitation consultant, as an expert witness. Chadwick Timber objected to the admission of Vinson's testimony, arguing that Philon's leg injury was a scheduled injury and, therefore, that evidence pertaining to a vocational disability was not admissible. Kohler Co. v. Miller, 921 So. 2d 436, 444 (Ala.Civ.App.2005) ("Compensation for a permanent partial disability arising from an injury to a scheduled member is governed exclusively by § 25-5-57(a)(3), Ala. Code 1975; thus, `evidence of vocational disability cannot serve to further any recovery' and is irrelevant."). Vinson testified that, based on Philon's complaints of leg and back pain and on other factors, including Philon's illiteracy and lack of transferable job skills, he believed Philon was permanently and totally disabled as a result of the March 8, 2001, on-the-job accident.
In its judgment, the trial court made several factual findings, including the following:
"1. That on March 8, 2001, [Philon] was employed by Defendant, Chadwick Timber Company and that all parties were subject to and operating under the Alabama Workers' Compensation Act.
*1018 "2. That on March 8, 2001, while employed with Chadwick Timber Company as a chainsaw hand, [Philon] sustained injuries while performing his job and said injuries arose out of and in the course of his employment. [Philon] received an injury to his left leg and lower back in the course of performing his work as a chainsaw hand. [Philon] was treated by Dr. Albert Pearsall and Dr. Arthur Wood for the injuries. The Court is satisfied that [Philon] proved causation in the present case.
"3. That [Chadwick Timber] received timely notice of the injury.
"....
"7. That the medical testimony provided by Dr. Albert Pearsall concluded that [Philon] can no longer perform his work as a chainsaw hand. Dr. Pearsall, relying on the functional capacities evaluation performed at his request, testified that due to Philon's injuries his condition would not tolerate that type of work. [Philon's] performance on the functional capacities evaluation was limited by left knee pain and low back pain, both of which are the result of [Philon's] injury. Dr. Pearsall further testified that [Philon] could perform no job in the heavy category. The Court finds that these restrictions effectively preclude [Philon] from performing any job which he has held in the past, namely, chainsaw hand.
"8. That all of [Philon's] previous employment consisted of heavy strength category jobs. [Philon] was a fifty-two year old male with a 9th grade education at the time of the hearing. He is also functionally illiterate and has never had a driver's license. Further, the Court finds that as a result of [Philon's] injury he suffers significant pain on a constant basis.
"[Philon] testified and was a very believable witness. While in court, sitting and testifying [Philon] appeared to be in pain and to have difficulty remaining in one position for any length of time. He testified that the pain is constant and becomes worse with exertion. The pain is in his left knee and lower back. Bill Vinson, a licensed professional counselor, who testified as [Philon's] vocational expert, stated on direct examination that [Philon] is unemployable due to 1) pain, 2) mental retardation (he testified that [Philon's] IQ is 53), 3) illiteracy, 4) his physical limitations resulting from the injury, and 5) [Philon] has no transferrable skills. The Court finds that the medical evidence substantiates [Philon's] testimony about the significant pain he suffers and that his testimony is completely credible...."
On appeal, Chadwick Timber argues that the trial court erred in fashioning its award of benefits to Philon. In so arguing, Chadwick Timber asserts, among other things, that it did not receive adequate or timely notice of Philon's claim that he had suffered a back injury. Chadwick Timber also argues that Philon did not, in his complaint, indicate that he might be asserting that his back pain constitutes an exception that would remove his claim for benefits for the injury to his leg from the schedule set forth in § 25-5-57.
The record does not indicate at what point Philon notified Chadwick Timber, or at what point Chadwick Timber became aware, that Philon was seeking benefits based on either injury to his leg and back or for back pain allegedly caused by his leg injury. Further, the parties' questions to Dr. Pearsall at his September 26, 2003, deposition indicate that the issue of back pain might have been tried by the *1019 implied consent of the parties. See Rule 15(b), Ala. R. Civ. P.
"`This court cannot assume error, nor can it presume the existence of facts to which the record is silent. Dais v. Davis, 420 So. 2d 278 (Ala.Civ.App.1982). The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal. Matter of Coleman, 469 So. 2d 638 (Ala.Civ.App. 1985).'"
Leeth v. Jim Walter Homes, Inc., 789 So. 2d 243, 247 (Ala.Civ.App.2000) (quoting Newman v. State, 623 So. 2d 1171, 1172 (Ala.Civ.App.1993)). The record on appeal is not sufficient for this court to analyze the arguments pertaining to notice. See Goree v. Shirley, 765 So. 2d 661, 662-63 (Ala.Civ.App.2000) (this court could not review the issue whether a Rule of Civil Procedure was unconstitutional when no copy of the motion asking the trial court to declare the rule unconstitutional was contained in the record on appeal). Further, because we find other issues to be dispositive of this appeal, we need not address the notice issue.
Chadwick Timber also argues that Philon's recovery of workers' compensation benefits should be limited to the compensation set forth in § 25-5-57(a)(3), Ala. Code 1975, for a "scheduled injury." Specifically, Chadwick Timber contends that, given the facts of this case, Philon could recover benefits only for the injury to his leg. In its April 13, 2006, judgment, the trial court determined that on March 8, 2001, Philon had "received an injury to his left leg and lower back in the course of performing his work" and that those injuries caused him to be permanently and totally disabled.
We first address Chadwick Timber's argument that the evidence in the record does not support a conclusion that the March 8, 2001, on-the-job accident caused an injury to Philon's back.[1]
"[F]or an injury to be compensable under the Workers' Compensation Act, the employee must establish both legal and medical causation.... Once legal causation has been established, i.e., once it has been established that an accident arose out of and in the course of employment, medical causation must be established, i.e., that the accident caused the injury for which recovery is sought. Hammons [v. Roses Stores, Inc., 547 So. 2d 883 (Ala.Civ.App.1989)]."
Ex parte Moncrief, 627 So. 2d 385, 388 (Ala.1993). Chadwick Timber contends that Philon failed to present substantial evidence of medical causation with regard to his claim that he injured his back as a result of the March 8, 2001, on-the-job accident.
In addressing the requirement that a workers' compensation claimant establish medical causation, our supreme court has stated:
"In Ex parte Price, 555 So. 2d 1060, 1061 (Ala.1989), this Court held that expert medical testimony is not required to prove medical causation by substantial evidence. Thus, it was not necessary for [the plaintiff] to present testimony from a medical expert tying her injury to her workplace accident. However, the Court also stated in Price that `[i]t is in the overall substance and effect *1020 of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness's use of any magical words or phrases, that the test finds its application.' Price, 555 So.2d at 1063 (citing Odell v. Myers, 52 Ala.App. 558, 295 So. 2d 413 (1974)) (emphasis omitted; emphasis added)."
Ex parte Southern Energy Homes, Inc., 873 So. 2d 1116, 1121-22 (Ala.2003).
In Ex parte Southern Energy Homes, Inc., supra, the plaintiff presented evidence indicating only that her claimed injury could be related to her employment. The court summarized the evidence by stating that "the testimony of the[] doctors at best established a possibility that [the plaintiff's] back condition was caused by her alleged on-the-job injury." Ex parte Southern Energy Homes, Inc., 873 So.2d at 1122. The only direct evidence of medical causation regarding the back injury was the plaintiff's own testimony. The court stated that it was not holding that a plaintiff's testimony could never constitute substantial evidence of medical causation. However, it concluded that the "overall substance" of the evidence did not support a finding that the plaintiff was permanently and totally disabled as a result of her on-the-job injury. Id. In so holding, the court reiterated that "`[i]t is a well established principle that evidence presented by a [workers'] compensation claimant must be more than evidence of mere possibilities that would only serve to "guess" the employer into liability.'" Ex parte Southern Energy Homes, Inc., 873 So.2d at 1122 (quoting Hammons v. Roses Stores, Inc., 547 So. 2d 883, 885 (Ala.Civ.App.1989)).
In Jackson Landscaping, Inc. v. Hooks, 844 So. 2d 1267 (Ala.Civ.App.2002), the worker testified that his back pain was caused by an on-the-job accident. The worker's doctor testified that "there was a `probability [that the worker's back injury] could have been'" caused by the work-related accident. 844 So.2d at 1272. The trial court found the employer liable for the costs of treating the worker's back injury. However, this court reversed the trial court's judgment, concluding that the worker did not present substantial evidence to demonstrate his claimed back injury was caused by his on-the-job injury.
In Valtex, Inc. v. Brown, 897 So. 2d 332 (Ala.Civ.App.2004), the worker testified that her cumulative-stress injuries were caused by her employment. Her doctor testified only that it was medically possible that the worker's employment caused her symptoms. The standard of proof for establishing medical causation in an action seeking workers' compensation benefits for a cumulative-stress injury is clear and convincing evidence. Valtex, Inc. v. Brown, 897 So.2d at 337. Although this court applied the appropriate standard in Valtex, supra, in reaching its decision this court noted that "[t]here [was] not even substantial evidence of medical causation in [the] case." Valtex, Inc. v. Brown, 897 So.2d at 337.
In this case, Philon testified that he had suffered an injury to his back when he fell and hit his back on a tree limb during the March 8, 2001, on-the-job accident. None of Philon's medical records indicate that he ever told a treating physician that he had suffered a back injury. In the fall of 2001, Philon began telling his physical therapist that he had some back pain, and in September and October 2001, Philon complained to Dr. Pearsall that he had back pain. However, Philon did not relate his complaints of back pain to any specific source. Philon received no treatment for a back injury. Other than his own testimony that he fell and hit his back on a tree limb, Philon failed to present any evidence tending to indicate that he had suffered a *1021 back injury as a result of his March 8, 2001, on-the-job accident. Given the evidence in the record, we must hold that the "overall substance" of the evidence in the record does not support a conclusion that Philon suffered a back injury on March 8, 2001. See Ex parte Southern Energy Homes, Inc., supra; Jackson Landscaping, Inc. v. Hooks, supra.
Our inquiry does not end with our holding that the evidence does not support a conclusion that Philon suffered an injury to his back on March 8, 2001. This court may affirm a correct judgment for any reason, even if the trial court did not rely on that reason in reaching its judgment. Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238 (Ala.1992); Cove Props., Inc. v. Walter Trent Marina, Inc., 702 So. 2d 472, 474 (Ala.Civ.App.1997). Our supreme court has held that injuries to a scheduled member may be compensated outside the compensation schedule set forth in § 25-5-57(a) when the injury "`extend[s] to other parts of the body and interfere[s] with their efficiency.'" Ex parte Drummond Co., 837 So. 2d 831, 834 (Ala.2002) (quoting Lex K. Larson, Larson's Workers' Compensation Law § 87.02 (2001)). Before the trial court and in his brief submitted to this court, Philon argued that changes in his gait caused by his leg injury affected his back, causing him to suffer back pain and contributing to what he claims is his permanent total disability. If properly supported by the evidence, such a claim could support the trial court's judgment. Therefore, we next address Chadwick Timber's argument that the evidence does not support a conclusion that any purported change in Philon's gait resulting from his leg injury caused Philon to suffer back pain such that his injury should be deemed to be compensable outside the compensation schedule set forth in § 25-5-57(a).
We must conclude, as we did in addressing the previous issue, that Philon failed to present substantial evidence of medical causation with regard to his claim that his leg injury extended to other parts of his body so as to cause a permanent and total disability. Philon testified that his leg injury caused him to suffer back pain. However, the only other evidence in the record pertaining to whether Philon's leg injury caused his back pain was the testimony of Dr. Pearsall. Dr. Pearsall could state only that it was possible, but not likely, that the back pain was caused by a change in Philon's gait. We cannot hold that the foregoing amounts to "`more than evidence of mere possibilities'" that Philon's back injury was related to the injury to his leg suffered on March 8, 2001. Ex parte Southern Energy Homes, Inc., 873 So.2d at 1122. Given the facts of this case, to find Chadwick Timber responsible for workers' compensation benefits outside the schedule set forth in § 25-5-57(a) based on the foregoing evidence "`would only serve to "guess" [it] into liability.'" Id.
Chadwick Timber also contends that because Philon's recovery was limited to the schedule set forth in § 25-5-57(a), the trial court erred in admitting and relying on the testimony of Vinson, the vocational expert. The trial court admitted that testimony into evidence after it determined that Philon's injuries fell outside the compensation schedule in § 25-5-57(a). However, this court has reversed the trial court's determination that Philon's recovery fell outside the schedule in § 25-5-57. Accordingly, we agree with Chadwick Timber that because Philon's recovery was limited to that set forth in § 25-5-57, the evidence pertaining to a vocational disability was irrelevant. Kohler Co. v. Miller, supra. (evidence of vocational disability arising from an injury to a scheduled member is irrelevant). "Evidence which is *1022 not relevant is not admissible." Rule 402, Ala. R. Evid.
Chadwick Timber also maintains that the trial court erred in awarding Philon benefits because, it contends, Philon refused or failed to attend physical-therapy sessions. Section 25-5-77, Ala.Code 1975, provides that the injured employee's right to compensation is suspended when the employee refuses to accept medical services or physical rehabilitation. The evidence in the record indicates that Dr. Pearsall testified that he usually prescribes physical therapy within a few weeks of surgery; however, he did not testify whether he had asked Philon to attend physical-therapy sessions after each of his two surgeries. Dr. Pearsall testified that his notes did not indicate whether Philon attended physical therapy after the March 2001 surgery but that Philon had attended physical therapy after the July 2001 surgery. Dr. Pearsall explained that in September 2001 Philon informed him that he was having pain and that Philon had not, at that point, gone to physical therapy. Dr. Pearsall instructed Philon to attend physical therapy and then return to see him. The evidence does not indicate that Dr. Pearsall requested that Philon attend physical therapy after the March 2001 surgery. The record does indicate that Philon consistently attended physical-therapy sessions in the fall of 2001. The record also indicates that even if Philon failed to go to physical therapy immediately after the July 2001 surgery, he did comply with Dr. Pearsall's September 2001 recommendation that he attend physical-therapy sessions. We cannot say that Chadwick Timber has demonstrated error as to this issue.
The trial court's judgment is reversed. On remand, the trial court is to enter a judgment in compliance with this opinion.
REVERSED AND REMANDED.
PITTMAN, BRYAN, and THOMAS, JJ., concur.
MOORE, J., recuses himself.
NOTES
[1] We note that in his brief submitted to this court Philon maintains that he did not seek to establish in the trial court that he had suffered an injury to his lower back on March 8, 2001, when he injured his leg in the on-the-job accident. However, given Philon's own testimony that he injured his back on March 8, 2001, and the trial court's specific determination that he had, in fact, suffered an injury to his back as a result of the on-the-job accident, we address Chadwick Timber's argument on this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568727/ | 10 So. 3d 331 (2009)
Ella BRADSTREET
v.
Vernetta KINCHEN, Escroserv., Inc., Escrow Services, Inc. Richard D. Tiemann, Jr., Crescent City Title WB, L.L.C., and Commonwealth Land Title Insurance Company.
No. 2008-CA-0126.
Court of Appeal of Louisiana, Fourth Circuit.
April 1, 2009.
*333 Clement F. Perschall, Jr., Clement F. Perschall, Jr. APLC, Metairie, LA, for Ella Bradstreet.
Magdalen B. Bickford, Philippe J. Langlois, Anna E. Flynt, Milling Benson Woodward, LLP, New Orleans, LA, for Escrow Services, Inc.
Court Composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU.
MOON LANDRIEU, Judge Pro Tempore.
The plaintiff, Ella Bradstreet ("Ms. Bradstreet"), appeals the October 26, 2007 judgment of the trial court in favor of the defendant, Escrow Services, Inc. ("ESI"), sustaining an exception of prematurity, dismissing her suit against ESI and ordering the matter to arbitration.[1] We affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On July 5, 2005, Ms. Bradstreet and Vernetta Kinchen ("Ms. Kinchen"), the owner of a house located at 2621 Gallinghouse Street in New Orleans, Louisiana, executed a written contract entitled "Installment Option Agreement" ("the Agreement") regarding the sale and purchase of the property. The actual written contract consisted of several pre-printed forms and three schedules (Schedules "A," "B" and "C") provided by EscroServ, Inc.[2] and prepared by Crescent City Title WB, L.L.C. ("Crescent City Title"), the title company handling the transaction. Schedule C of the Agreement indicated the property was encumbered by a mortgage held by AMC Mortgage Services, Inc., as a result of a loan made by Ms. Kinchen on March 27, 2003. Ms. Kinchen, a resident of Texas, authorized Chip Julien ("Mr. Julien") to act as her agent and to sign the Agreement on her behalf.
The Agreement expressly provided:
It is clearly understood and agreed that this Agreement is not a sale, transfer or conveyance but only a written Agreement to sell, transfer, and convey property in the future; provided all terms, conditions, payments and obligations are fully completely and timely met by Purchaser.
In paragraphs 4 and 5 of the pre-printed form, the Agreement is specifically described as "an option."
Pursuant to the terms of the Agreement, EscroServ, Inc., was designated to serve as the administrator, whose principal responsibility was to accept and disburse the payments required under the Agreement and to discharge associated duties as set forth in the Agreement. The Agreement further allowed EscroServ, Inc., as the administrator, to assign the servicing of the Agreement "... to any person, firm, or corporation."[3]
*334 Among other terms and conditions, the Agreement gave Ms. Bradstreet (the purchaser) possession and a usufruct of the immovable property during the term of the option. Ms. Bradstreet was responsible for the payment of the taxes, insurance, and maintenance applicable to the immovable property and compensation to Ms. Kinchen for the usufruct and the option.[4] The Agreement also contained an arbitration clause, which provided:
All controversies between Owner, Purchaser and/or Administrator, or rights of parties hereto, shall be submitted to binding arbitration. All parties hereby waive their rights to a jury trial or other judicial determination. Tort damages, reimbursement rights, deposits, rights to occupancy, attorney's fees, costs or expenses as a result of this Agreement, may only be asserted in binding arbitration. The parties further waive their right to any claims or counter claims except those asserted within said arbitration proceedings.
Pursuant to the Agreement, beginning July 15, 2005, and on the same day of each succeeding month, Ms. Bradstreet sent a payment of $1292.99 to EscroServ, Inc./ ESI.[5] In turn, EscroServ, Inc./ ESI deducted its fee and sent the remainder to AMC Mortgage Services, Inc., as payment on the loan made by Ms. Kinchen. On April 5, 2006, ESI notified Ms. Bradstreet that the amount of the monthly payment was being increased to $1,679.02 due to an increase in the adjustable interest rate on the underlying mortgage. Despite the increase, Ms. Bradstreet continued to make the monthly payments from April 2006 through September 2006, which, by that time, had increased to $1,795.29.[6]
However, in October, November and December 2006 and January 2007, Ms. Bradstreet defaulted on the payments. ESI, on behalf of Ms. Kinchen, sent Ms. Bradstreet a notice of default dated January 10, 2007, demanding that she remit a payment of $6,372.43 to make her account current as required by the Agreement.
In response, Ms. Bradstreet made a payment of $6,400.00, which satisfied only the October, November, and December 2006 payments. On February 22, 2007, Ms. Kinchen advised ESI that Ms. Bradstreet had breached the Agreement, and instructed it to stop accepting any further payments from her or face legal action.
On February 25, 2007, ESI notified Ms. Kinchen and Ms. Bradstreet that it was resigning as the Administrator for the Agreement at the request of Ms. Kinchen. On March 19, 2007, Ms. Bradstreet's attorney advised Ms. Kinchen and, ESI, by certified letter, of "defects" he claimed infected the Agreement and demanded compensation for Ms. Bradstreet's damages. The letter read, in pertinent part:
*335 It appears that there are numerous defects in the preparation, execution and recording of [the Agreement] and the administration of the transaction thereafter, which call into question its legal efficacy. Since [the Agreement] fulfills the definition of a bond for deed under Louisiana law, La. R.S. 9:2941, it is legally defective, including but not limited to the following reasons:
1. it was not registered in conveyance records of Orleans Parish, La. R.S. 9:2945; and/or
2. EscroServ, Inc. was not a licensed escrow agent at the time of the execution of [the Agreement] or since that time as required by La. R.S. 6:414(B)... and/or
3. there is no filing of the written guaranty of the mortgage holder required by La. R.S. 9:2942 in the mortgage record of Orleans Parish; and/or
4. [the Agreement] did not disclose that the mortgage had an adjustable rate; and/or
5. [the Agreement] did not disclose the true mortgagee but only disclosed the apparent servicing agent ... and/or
6. there exists the possibility that there were outstanding real estate tax obligations which had been paid by the mortgagee and/or the servicing company at the time of the closing which had not been paid by Ms. Kinchen, which would impact the purchase price, just as does the adjustable rate interest provision... and/or
7. notwithstanding [ESI's] undertaking of the obligations of the Administrator under [the Agreement], Ms. Bradstreet has not been provided a copy of any assignment of the rights of EscroServ, Inc. to [ESI] nor has there been any release of EscroServ, Inc. of its obligations under [the Agreement]; and/or
8. [the Agreement] provides no basis for the resignation and/or discharge of the Administrator, therefore, no resignation or discharge appears possible without the consent of all parties; and/or
9. [Crescent City Title] through [its attorney] and/or [its attorney], failed to disclose the aforesaid defects in [the Agreement] and/or failed to properly obtain the requisite documentation and/or failed to properly record the necessary documentation to make the transaction lawful and/or failed to properly account for the transaction on the HUD closing statement involved.
Having received no response to the letter, Ms. Bradstreet filed a petition for damages, naming as defendants Ms. Kinchen; EscroServ, Inc.; ESI; Crescent City Title; the attorney who handled the transaction; and Commonwealth Land Title Insurance Company, the title insurer. She alleged numerous causes of action, including rescission of contract, breach of contract, and negligence in failing to disclose material information and in failing to comply with state law.
ESI filed dilatory exceptions of prematurity and vagueness of the petition and a peremptory exception of no cause of action, invoking the Agreement's arbitration clause. The trial court maintained the exception of prematurity and ordered the parties to submit the matter to arbitration. Ms. Bradstreet appealed.
DISCUSSION
In the first of two assignments of error, Mrs. Bradstreet contends that the trial court erred in maintaining the exception of prematurity, as ESI presented no evidence that the Agreement was a valid contract. Specifically, she contends that, notwithstanding the Agreement was entitled "Installment Option," it was actually a "bond *336 for deed" contract, as defined in La. R.S. 9:2941, and the defendants' failure to comply with La. R.S. 9:2942, 9:2943 and 6:414(B) rendered the contract invalid.[7]
The Louisiana Civil Code provides that the interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. "Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole." La. C.C. art. 2050. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La. C.C. art. 2046. Considering the written contract executed by the parties, we find no merit to Ms. Bradstreet's claim that the Agreement was not an option but rather a bond for deed contract pursuant to Louisiana law.
La. C.C. art. 2620 defines an option as:
An option to buy, or an option to sell, is a contract whereby, a party gives to another the right to accept an offer to sell, or to buy, a thing within a stipulated time.
An option must set forth the thing and the price, and meet the formal requirements of the sale it contemplates.
The Agreement at issue specifically identifies the thing to be sold and the sale price. Characterizing the Agreement as an option contract is consistent with the language providing that it is not a sale, but only "a written agreement to sell, transfer, and convey property in the future," as clearly stated in paragraph 2 of the Agreement, as well as its description as "an option" in paragraphs 4 and 5.
Furthermore, unlike an option, a bond for deed absolutely obligates the seller to deliver title to the buyer after payment of a specific sum. See Upton v. Whitehead, 41,131 (La.App. 2 Cir. 6/28/06), 935 So. 2d 746, 751; see also Gray v. James, 503 So. 2d 598 (La.App. 4 Cir. 2/12/87). In this case, Ms. Kinchen was not automatically obligated to transfer title to the property after the required payments. In fact, Condition 4 of the contract, stated:
Purchaser shall have the right to acquire ownership of Property during the term of the Agreement. Should Purchaser comply with all obligations herein, such compliance shall constitute election to *337 exercise this option and Owner may require Purchaser to take title within thirty (30) days of written notice to Purchaser. Failure of Purchaser to do so shall cause option to lapse without further obligation to transfer property. Purchaser may also cancel this option by giving thirty (30) days notice to the Administrator.
(Emphasis added). Because there is no automatic transfer of title, but only an option to be exercised, the Agreement is clearly an option contract as opposed to a bond for deed contract.
Alternatively, Ms. Bradstreet argues that if the Agreement is an option, then the trial court erred in allowing ESI to enforce its provisions, i.e., the arbitration clause, because ESI was not a party to the Agreement. We disagree.
As previously mentioned, paragraph 26 of the Agreement specified that the transfer and the other terms and conditions of the contract were to be administered by an administrator, and the "administrator [could] assign the servicing to any person, firm or corporation." The record indicates that the parties to the agreement initially appointed EscroServ Inc. as the initial administrator, and EscroServ, Inc. assigned the servicing of the Agreement to ESI. Ms. Bradstreet does not dispute that she continued to make payments to ESI as the Administrator, as called for by the Agreement. Thus, by her own conduct, Ms. Bradstreet acknowledged that ESI was properly serving as the Administrator. Moreover, the exhibits documenting the Agreement after the closing clearly refer to ESI as the Administrator.
Ms. Bradstreet also asserts that the option contract is invalid because the mandate given by Ms. Kinchen to Mr. Julien to act as her agent and sign the agreement on her behalf was signed six days after the signing of the Agreement. Again, we disagree.
The authority to alienate, acquire, encumber or lease immovable property must be given expressly. La. C.C. art. 2996. Furthermore, "when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form." La. C.C. art. 2993. "A promise to sell immovable property must be vested with the same formalities as prescribed for sales of immovable property." See Alley v. New Homes Promotion, Inc., 247 So. 2d 218 (La.App. 4th Cir.1971). "A sale or promise of sale of an immovable must be made by authentic act or by act under private signature...." La. C.C. art. 2440.
Furthermore, La. C.C. art. 2031 provides, in part, "A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed." Although Mr. Julien lacked the requisite authority to act as Ms. Kinchen's agent when he signed the option agreement on July 5, 2005, because the mandate was not in effect, Ms. Kinchen ratified the Agreement once she executed the mandate on July 11, 2005. If Ms. Bradstreet wanted to challenge the validity of the Agreement for want of the required mandate, she should have done so prior to July 11, 2005. This argument is without merit.
In her second assignment of error, Ms. Bradstreet argues that the trial court erred in enforcing the arbitration clause because the clause was adhesionary. She emphasizes that the arbitration clause in this case was a minor clause in a standard pre-printed form used by the mortgage industry, which was supplied by EscroServ, Inc. and prepared by Crescent City Title.
*338 The Louisiana Supreme Court, considering whether an arbitration provision similar to the one at issue here was a contract of adhesion, stated:
"Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms. See LSA-C.C. Arts. 1766, 1811; S. Litvinoff, 6 Louisiana Civil Law Treatise-Obligations (Book 1), § 194, pp. 346-349 (1969)." Golz v. Children's Bureau of New Orleans, 326 So. 2d 865, 869 (La.1976), appeal dismissed, 426 U.S. 901, 96 S. Ct. 2220, 48 L. Ed. 2d 827 (1976).
Aguillard v. Auction Management Corp., 2004-2804, p. 9 (La.6/29/05), 908 So. 2d 1, 8-9. Aguillard involved the sale of real estate at a public auction. Prior to bidding on the property, all potential buyers, including Mr. Aguillard, were compelled to sign a document entitled, "Auction Terms & Conditions," which included the following arbitration clause: "Any controversy or claim arising from or relating to this agreement ... shall be settled by arbitration." Id. at 3, 908 So.2d at 4. When a dispute arose over Mr. Aguillard's bid, he filed suit. The defendants filed a motion to stay the proceedings pending arbitration, contending the arbitration clause contained in the Auction Terms & Conditions document governed the dispute. The trial court denied the stay, finding the arbitration clause was adhesionary. The court of appeal affirmed. The Supreme Court reversed, holding that the arbitration clause, even if it was a minor sentence in a section of a preprinted form, was not a contract of adhesion. Id. at 12, 908 So. 2d 11. The Court acknowledged that "the real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms." Id. at 12, 908 So.2d at 10, citing Litvinoff, supra, at 758. "[I]f [the standard form contract] does not call into question the non-drafting party's consent and if it is not demonstrated that the non-drafting party did not consent or his consent is vitiated by error, the contract is not a contract of adhesion." Id. at 12, 908 So.2d at 11.
In this case, the arbitration clause consisted of a full paragraph under the section of the pre-printed form bearing the heading "BINDING ARBITRATION." The clause is legible and unambiguous. Ms. Bradstreet does not dispute that she signed the Agreement and, in compliance therewith, made payments for more than a year before defaulting. Thus, no doubt exists as to whether she consented to its terms, including the arbitration clause.
Furthermore, addressing the determination of the enforceability of arbitration agreements under a contract of adhesion analysis, the Louisiana Supreme Court held that a presumption of arbitrability does exist. The Court stated:
Due to the strong and substantial similarities between our state arbitration provisions and the federal arbitration law as seen through a comparison of La.Rev.Stat. §§ 9:4201 and 9:4202 and 9 U.S.C. §§ 2 and 3, the federal jurisprudence provides guidance in the interpretation of our provisions. We, therefore, adopt the United States Supreme Court's interpretation of the federal arbitration law.
Accordingly, even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this *339 presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Therefore, even if some legitimate doubt could be hypothesized, this Court, in conjunction with the Supreme Court, requires resolution of the doubt in favor of arbitration.
Aguillard, 2004-2804, p. 24-25, 908 So.2d at 18.
Considering the Supreme Court's liberal policy favoring arbitration and the foregoing conclusion that the Agreement entered into by Ms. Bradstreet and Ms. Kinchen constituted an option contract with a provision requiring arbitration in the event disputes arose among the parties and/or administrator, we find the trial court correctly sustained the exception of prematurity and ordered the matter to be submitted to arbitration.
DECREE
Accordingly, for the aforementioned reasons, the judgment of the trial court is affirmed.
AFFIRMED.
NOTES
[1] The trial court designated the October 26, 2007 judgment as a final appealable judgment on November 27, 2007.
[2] As further discussed infra, EscroServ, Inc. and ESI were separate and distinct entities. EscroServ, Inc. was the initial administrator of the Agreement at issue and pursuant thereto later assigned servicing of the Agreement to ESI. At the time Ms. Bradstreet defaulted on her obligation under the Agreement, ESI was serving as the administrator.
[3] EscroServ, Inc. and ESI were affiliated companies at the time the parties executed the Agreement. On May 1, 2006, ESI was purchased by an entity separate from EscroServ, Inc. However, shortly before that date, EscroServ, Inc. had assigned the servicing of the Agreement to ESI.
[4] Schedule A of the Agreement listed the "Contract Price" as $151,500.00 and deducted $8,885.43, the initial down payment made by Ms. Bradstreet, leaving a "Balance Due" of $142,614.57. It listed the "Interest Rate" as 9.500 percent, per annum on the unpaid balance and the "Initial Monthly Payment" as $1,292.99. It further provided, "[t]he `Payment Due Date' was July 15, 2005, and on the same day of each succeeding month until the `Final Payment Date' of July 15, 2006, by which the outstanding Balance Due must be paid in full."
[5] The $1,292.99 payment included the principal and interest ($1,215.64), insurance ($52.35) and the Administrator's fee ($25.00).
[6] From July 15, 2005 to September 15, 2006, the interest rate on the underlying mortgage rose from 9.500% to 11.375% per annum.
[7] La. R.S. 9:2941 provides, "[a] bond for deed is a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer." La. R.S. 9:2942 provides that it is unlawful for the vendor to sell, by bond for deed, immovable property encumbered by a mortgage or privilege without first obtaining from the mortgagee or privilege holder a written guarantee to release the property upon payment by the buyer of a stipulated mortgage release price. The statute also provides that the written guarantee shall be recorded in the mortgage records of the parish where the property is situated before any part of the property is offered for sale under a bond for deed contract. Furthermore, La. R.S. 9:2943 provides that all payments toward the purchase of property burdened by a mortgage or privilege under bond for deed contracts shall be made to a bank which has been designated as an escrow agent by the parties. And, La. R.S. 6:414(B) requires a bond for deed escrow agent to be licensed.
Ms. Bradstreet submitted to the trial court documentary proof that the mortgage holder in this case failed to record in the mortgage office of Orleans Parish a written guarantee to release the property upon payment. She also submitted evidence from the Louisiana Office of Financial Institutions that indicated EscroServ, Inc. was not a licensed bond for deed escrow agent. Because ESI offered no evidence to the contrary, Ms. Bradstreet argues the bond for deed contract executed by the parties was not valid. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569313/ | 985 F. Supp. 1284 (1997)
UNITED STATES of America, Plaintiff,
v.
Brian L. MILLER, Defendant.
Nos. 97-3224-DES, 94-10058-02-DES.
United States District Court, D. Kansas.
November 13, 1997.
*1285 Brian L. Miller, Terminal Island, CA, pro se.
F.G. Manzanares, Topeka, KS, for Brian Miller.
MEMORANDUM AND ORDER
SAFFELS, Senior District Judge.
This matter is before the court on defendant's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 172).
On July 13, 1994, a federal grand jury returned a five-count superseding indictment against Brian L. Miller. The case proceeded to trial and a jury convicted defendant Miller of one count of possession with intent to distribute methamphetamine (18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1)); one count of possession with intent to distribute marijuana (18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1)); one count of using or carrying a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)); and one count of being a felon in possession of a firearm (18 U.S.C. §§ 922(g) and 924(a)(2)). The jury acquitted Miller of interstate transportation of a stolen vehicle (18 U.S.C. § 2313).
Miller appealed his convictions and sentence to the United States Court of Appeals. In United States v. Miller, 84 F.3d 1244 (10th Cir.1996), the Tenth Circuit vacated Miller's convictions for sing or carrying a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)) and being a felon in possession of a firearm (18 U.S.C. §§ 922(g) and 924(a)(2)) and remanded the case for resentencing in light of its vacation of two of Miller's convictions. The district court resentenced the defendant on November 1, 1996.
Miller advances several claims in support of his motion pursuant to 28 U.S.C. § 2255. He first claims that he was denied the right to a fair trial because the court improperly admitted handwriting analysis concerning a phonebook and ledger which appeared to contain notes written by the same person. Defendant also claims violation of his right to a fair trial by the introduction of his prior drug offense convictions. Finally, defendant claims that he was denied the effective assistance of counsel.
As an initial matter, the court notes that defendant failed to raise his violation of due process claims on direct appeal. Failure to present an issue on direct appeal bars a defendant from raising the issue in his 28 U.S.C. § 2255 motion "unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or he can show that a fundamental miscarriage of justice will occur if his claim is not addressed." United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584, 1593-94, 71 L. Ed. 2d 816 (1982)). Defendant, however, also frames these issues as claims for ineffective assistance of counsel. The court will thus construe the defendant's due process claims as additional support for his ineffective assistance of counsel claim. Defendant must nevertheless establish actual prejudice resulting from the alleged due process violations of which he complains in order to establish cause excusing his procedural default.
To establish a claim of ineffective assistance of counsel, defendant must show: (1) that petitioner did not receive the counsel guaranteed by the Sixth Amendment; and (2) that counsel's performance was so deficient that the defendant did not receive a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Defendant bears the burden to establish both incompetence and prejudice. There is a presumption that the attorney's conduct comes within "the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065.
The court will first examine the defendant's claim that he was denied the right to a fair trial because the court improperly *1286 admitted handwriting analysis concerning a phonebook and ledger which appeared to contain notes written by the same person. Defendant makes several arguments in support of this claim. He first argues that the handwriting contained in the phonebook, which the government used to compare with writing contained in the ledger, was not properly authenticated as required under the Federal Rules of evidence. Defendant cites Fed.R.Evid. 901(a), which provides that authentication as a condition precedent to admissibility may be satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims." The court disagrees with defendant's argument. The phonebook, which was taken from the defendant during a search, had the words "Brian Miller's Phone Book" written inside. As such, it was properly admitted under Fed.R.Evid. 901(b)(4), which provides for authentication by use of distinctive characteristics taken in conjunction with the circumstances. The court can think of few examples to which Fed.R.Evid. 901(b)(4) could more suitably apply.
The defendant next argues the jury was unfairly influenced by the government's characterization of its handwriting expert as an expert in the field of psycholinguistics. According to the defendant, such characterization implied that the expert's field was a "science," rather than merely an "art," thus lending excessive credibility to the expert's testimony. This problem was aggravated, the defendant argues, by the court's failure to properly instruct the jury as to their role as the trier of fact. At trial the court included the following instruction to the jury:
You should consider any expert opinion received in evidence in this case, and give it such weight as you may think it deserves.... If you should decide that the opinion of an expert witness is not based upon sufficient education or experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, you may disregard the opinion entirely.
The following instruction was also given:
You are the exclusive judges of the facts proved, the weight of the evidence, and the credibility of the witnesses. In weighing the testimony of the witnesses you have a right to consider their appearance and manner while testifying, their means of knowledge, apparent intelligence or ignorance, interest or want of interest in the outcome of the case, and all other facts and circumstances appearing in the trial which will aid you in arriving at the truth. If you believe any witness has willfully testified falsely as to any material fact, you may disregard the whole or any part of his testimony; but you are not bound to believe or disbelieve all the testimony of any witness.
These instructions, in conjunction with each other and with the rest of the court's instructions to the jury, more than adequately informed the jury regarding the weight to be given the expert's testimony and the jury's role as trier fact. Moreover, and contrary to the defendant's assertion, his attorney did object as to the foundation and authentication of the handwriting evidence as well as to the expert's qualifications as an expert. This objection was brought to the court's attention, outside the hearing of the jury, and was overruled.
The court will next examine the defendant's claim that his right to fair trial was violated by the admission of his prior conviction for possession of cocaine with the intent to sell. According to the defendant, the introduction at trial of the nature of his prior conviction unfairly prejudiced the jury. In support of his argument, defendant cites U.S. v. Wacker, 72 F.3d 1453 (10th Cir.1995). In that case, the Tenth Circuit held that if a defendant offers to stipulate to his prior conviction as proof of an essential element in felon-in-possession case, the government must accept this stipulation and no further mention of the prior conviction or nature of the circumstances surrounding the conviction may be introduced. In this case, the defendant did not offer to stipulate to his prior conviction. The element of a prior felony conviction was at issue and the government had to prove this element beyond a reasonable doubt. United States v. Hill, 60 F.3d 672, 676 (10th Cir.1995). The government *1287 therefore presented a certified copy of the charging documents, a Judgment and Commitment Order, and called a witness to connect the defendant to the prior conviction. Under the circumstances, the evidence was properly admitted. The court also notes that it instructed the jury concerning the limited purpose for which the evidence was to be considered.
Defendant further argues that his attorney's failure to stipulate to his prior conviction as proof of an essential element under the felon-in-possession count evidences ineffective assistance of counsel. The court disagrees. In light of the inculpatory evidence presented against the defendant, admission of the specific nature of his prior conviction did not have a "substantial influence" on the outcome of this case. See United States v. Flanagan, 34 F.3d 949, 955 (10th Cir.1994). Nor does the court have a "grave doubt" about such an effect. See Id. Defense counsel's failure to stipulate, therefore, did not affect the fairness of the trial.
Finally, defendant claims he was denied effective assistance of counsel because his attorney failed to seek bifurcation "of the order of proof of the charges and the evidence which would be presented to the jury." Defendant argues that bifurcation of the drug charges from the weapons charges would have prevented any unfair prejudice resulting from admission of the evidence of his prior conviction. The court is not persuaded. At trial the court included the following instruction to the jury:
During the course of this trial you have heard evidence that defendant Brian L. Miller previously committed an act similar to some of those charged in this case. You may not use the evidence to decide whether he carried out the acts involved in the crimes charged in Counts 1,2,3, or 4. You may consider this evidence as to Count 5 only insofar as it relates to the first element.
This instruction, in combination with the rest of the court's instructions to the jury, sufficiently advised the jury regarding the defendant's concerns about the potential for unfair prejudice resulting from failure to bifurcate. Accordingly, failure to modify the order of the presentation of evidence did not have a "substantial influence" on the outcome of this case and court has no "grave doubt" about such an effect. Defense attorney's decision to litigate the counts together did not, therefore, prejudice his right to a fair trial. Furthermore, the court finds that the defendant has not shown that his attorney's representation "fell below an objective standard of reasonableness" as required to establish a claims for ineffective assistance of counsel. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65.
Pursuant to 28 U.S.C. § 2253(c) and Rule 22(b) of the Federal Rules of Appellate Procedure, no movant may appeal a district court's decision denying a 28 U.S.C. § 2255 motion without a certificate of appealability issued by a district judge or circuit judge. The certificate of appealability may issue only if the defendant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In Lennox v. Evans, 87 F.3d 431, 433 (10th Cir.1996), overruled on other grounds by United States v. Kunzman, 125 F.3d 1363, 1997 WL 602507 (10th Cir.1997), the Tenth Circuit Court of Appeals held that the standard established for the issuance of a certificate of appealability is the same as that governing the issuance of a certificate of probable cause as set forth in Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394, 77 L. Ed. 2d 1090 (1983), i.e., the defendant must make "a substantial showing of the denial of a federal right."
In this case, the defendant does not make a substantial showing of the denial of a any federal right. Therefore, he will be denied a certificate of appealability.
IT IS THEREFORE BY THE COURT ORDERED that the defendant's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 172) is denied.
IT IS FURTHER ORDERED that defendant is denied a certificate of appealability. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569379/ | 985 F. Supp. 1251 (1997)
Donna M. DAVIS, Plaintiff,
v.
PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.
Civil Action No. 95-4190-DES.
United States District Court, D. Kansas.
October 29, 1997.
*1252 Edward G. Collister, Jr., Collister & Kampschroeder, Lawrence, KS, Gordon M. Penny, Lawrence, KS, for Donna Davis.
Paul P. Hasty, Jr., Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for Prudential Property and Cas. Ins. Co.
MEMORANDUM AND ORDER
SAFFELS, Senior District Judge.
This matter is before the court on plaintiff's Motion for Attorney's Fees (Doc. 35).
I. BACKGROUND
Donna Davis, formerly known as Donna Warren, was injured in an automobile collision on August 3, 1990. Robert Bryant drove the vehicle that collided with Ms. Davis's vehicle. Mr. Bryant was insured, but with minimum coverage. Ms. Davis was insured by Prudential Property & Casualty Insurance Company ("Prudential"). Prudential paid $11,947.17 in personal injury protection ("PIP") benefits to Ms. Davis as a result of the accident.
On July 21, 1992, Ms. Davis filed a petition in the District Court of Douglas County, Kansas, against Mr. Bryant alleging that as a result of Mr. Bryant's negligence, she was injured in an automobile collision. The case was assigned to Judge Michael J. Malone. Shortly after filing suit, Ms. Davis's attorney provided notice of the suit and a copy of the Petition to Prudential. On July 31, 1993, Prudential filed a subrogation lien in the tort action between Davis and Bryant and informed Ms. Davis's counsel that there was no need for Prudential to intervene in the lawsuit.
Following discovery and settlement negotiations, Davis and Bryant reached a tentative settlement agreement in the spring of 1993. On May 21, 1993, counsel for Ms. Davis mailed a certified letter to Dan Berg, a representative of Prudential, with whom Ms. Davis's counsel had earlier corresponded. The certified mail return receipt indicates the letter was received May 24, 1993. The letter advised Prudential of the terms of the tentative settlement agreement, to-wit: that Mr. Bryant would confess judgment in the amount of $120,000 and his insurance carrier would pay into court its policy limits of $25,000. The letter also invited Prudential to respond, pursuant to Kan. Stat. Ann. § 40-484(f), at its option. On May 26, 1993, a copy of the same letter was mailed to Michael Schenk, the attorney who had filed the PIP subrogation lien earlier in the litigation.
Attorneys for Davis and Bryant prepared a proposed order incorporating the settlement agreement and sent it to Judge Malone pending a hearing on outstanding motions. Judge Malone mistakenly signed the order and filed it May 27, 1993. However, none of the parties were aware of this premature filing until on or after August 25, 1993.
On June 17, 1993, Judge Malone held a conference call between counsel for Ms. Davis, counsel for Mr. Bryant, and Kevin Bennett, counsel for Prudential. The result of the call was that matters set on June 17, 1993, were continued for hearing until August 25, 1993. On June 18, 1993, counsel for Mr. Bryant and Prudential were notified that Ms. Davis's motion to approve the settlement and confession of judgment, and motion to *1253 pay $25,000 settlement proceeds to Davis (asserting settlement proceeds were not duplicative of PIP payments) would also be heard by Judge Malone on August 25, 1995.
On the afternoon of July 23, 1993, the sixtieth day following receipt of the certified letter advising Prudential of the tentative settlement agreement, Prudential delivered to Ms. Davis's attorney a check in the amount of $25,000 made jointly payable to Donna Warren and Prudential Casualty and Insurance Company. Ms. Davis's attorney concluded that such a tender did not comply with the statutory requirements of substitution by the insurance carrier and, on the next business day, he returned the check to Prudential's attorney at his office in Overland Park, Kansas. Prudential also filed a motion to intervene in the litigation between Davis and Bryant on July 23, 1993. Attached to Prudential's motion was a proposed answer denying liability and damage.
The trial court conducted a motions hearing on August 25, 1993, at which all parties, including Prudential, were represented. The court issued an order resolving the contested issues in Ms. Davis's favor, and denying Prudential's motion to intervene as untimely made. Prudential appealed the trial court's decision, but the Kansas Court of Appeals affirmed the lower court's decision and the Kansas Supreme Court denied a petition for review.
On November 29, 1995, Ms. Davis filed suit against Prudential in the United States District Court for the District of Kansas to recover the $75,000 representing the difference between her underinsured motorist coverage of $100,000 and the $25,000 payment she received from Mr. Bryant. Both parties moved for summary judgment and on April 30, 1997, this court granted summary judgment in favor of Ms. Davis and against Prudential.
II. DISCUSSION
Ms. Davis presently seeks recovery of $15,000 in attorney's fees pursuant to Kan. Stat. Ann. § 40-256, which provides in relevant part:
That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201, ... if it appear [sic] from the evidence that such company ... has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney's fee for services in such action, including proceeding upon appeal, to be recovered and collected as part of the costs.
Kan. Stat. Ann. § 40-256. The determination of whether an insurance company has refused to pay a claim without just cause or excuse turns on the facts and circumstances of a particular case. Allied Mut. Ins. Co. v. Gordon, 248 Kan. 715, 811 P.2d 1112, 1125 (1991). If a good faith legal controversy over liability exists, attorney's fees must be denied. Id. Likewise, if an insurer has a bona fide and reasonable factual basis for refusing to pay a claim, no attorney's fees are available. Id. (citations omitted). "Denial of payment that is not arbitrary, capricious, or in bad faith will not give rise to an award of attorney fees." Id. (citation omitted). An insurer's denial of a policy claim is considered "bona fide" if the insurer's explanation "is not frivolous or patently without reasonable foundation." Glickman v. Home Ins. Co., 86 F.3d 997 (10th Cir.1996) (citing Clark Equip. Co. v. Hartford Accident & Indem. Co., 227 Kan. 489, 608 P.2d 903, 907 (1980)). "The existence of a good faith legal controversy has been held to constitute just cause or excuse for an insurer's denial of coverage." Glickman, Inc. v. Home Ins. Co., 887 F. Supp. 259 (D.Kan.1995) (citing Farm Bureau Mut. Ins. Co. v. Carr, 215 Kan. 591, 528 P.2d 134 (1974)). Therefore, an award of attorney fees is not required under Kan. Stat. Ann. § 40-256 where there exists a division of authority on the validity of the legal defense asserted by the insurer. Id. (citing Forrester v. State Farm Mut. Automobile Ins., 213 Kan. 442, 517 P.2d 173 (1973)).
Prudential contends that attorney's fees are not owed in this case because there was room for reasonable disagreement over the issue decided by this court. Prudential characterizes the issue decided by this court as whether an underinsured motorist carrier *1254 is bound by a settlement between the insured and the alleged tort-feasor where the carrier was not given sixty days to substitute payment before the settlement was effected and finalized. Prudential then points out that this court "obviously came to a different conclusion" than the decision in Dalke v. Allstate Ins. Co., 23 Kan. App. 2d 742, 935 P.2d 1067 (1997), in which the Kansas appeals court held that an insured forfeited her right to recovery from her insurer by failing to provide notice of her settlement. Prudential's plain implication is that the court's decision was clearly contrary to Kansas law, thus evidencing a division of authority on the issue. Prudential is mistaken and misstates the issue decided in this case.
It was not necessary for the court to rule on the issue as it has been framed by Prudential. In response to Ms. Davis' summary judgment motion, Prudential argued that it only had three days, rather than the statutorily allowed sixty days, to substitute its payment to Ms. Davis because Ms. Davis and Mr. Bryant entered into an agreement shortly after it received notice on May 24, 1993, and Judge Malone approved the agreement and entered judgment on May 27, 1993. The court, in its April 30, 1997 order, addressed this argument and found it rather disingenuous. The court stated:
Although Judge Malone did in fact enter the May 27 judgment, Prudential fails to articulate how it was misled by the entry of that order. It is uncontested that Prudential was unaware of the order until at least August 25, 1993 long after the statutorily allowed sixty days had expired. Judge Malone's May 27 judgment, therefore, would not have affected Prudential's decision regarding its rights under Kan. Stat. Ann. § 40-284(f). Moreover, Prudential's attempt to substitute on the last day allowed by statute, and its failure to contest the May 27 order until well after the statutory deadline, are both inconsistent with its claim that its right to substitute payment was frustrated.
The court also found that Prudential did not tender "the amount of the tentative tort settlement" as Kan. Stat. Ann. § 40-284(f) clearly seems to require, thus forfeiting its subrogation right by failing to pay Ms. Davis the amount of the tentative tort settlement within sixty days. Accordingly, there was no need to address the question of an underinsured motorist carrier's rights and obligations where it is not given sixty days to substitute payment before a settlement between its insured and a tort-feasor is finalized.
This was not an action regarding a good faith legal controversy over liability, but rather an attempt by Prudential to avoid the consequences of its own tactical miscalculation. Accordingly, the court finds that attorney's fees are owed.
Plaintiff submits statements of services documenting 163.5 attorney hours and 88.2 law clerk hours. These totals appear somewhat excessive for this case, particularly in light of the numerous vague entries. Nevertheless, it is clear that plaintiff's request for $15,000 is significantly below what the lodestar calculation would produce at the number of hours submitted. The court finds it reasonable to award fees for 120 attorney hours rather than the requested 163.5 attorney hours and 88.2 law clerk hours. At an hourly rate of $125.00, that still results in an award of $15,000.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff's Motion for Attorney's Fees (Doc. 35) is granted and plaintiff is awarded $15,000 in attorney's fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568740/ | 29 So. 3d 1125 (2010)
CABRAL
v.
ROSEWATER.
No. 2D09-2133.
District Court of Appeal of Florida, Second District.
March 8, 2010.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568801/ | 29 So. 3d 305 (2010)
VAZQUEZ
v.
STATE.
No. 2D08-4064.
District Court of Appeal of Florida, Second District.
February 19, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568818/ | 308 F. Supp. 192 (1970)
Francisco Rosado TOLEDO
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE.
Civ. No. 747-68.
United States District Court D. Puerto Rico.
January 29, 1970.
*193 Carlos Santos Correa, Santurce, P. R., for plaintiff.
Candita R. Orlandi, Asst. U. S. Atty., San Juan, P. R., for defendant.
ORDER AND MEMORANDUM OPINION
FERNANDEZ-BADILLO, District Judge.
Francisco Rosado Toledo commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final adverse decision of the Secretary of Health, Education and Welfare by which disability insurance benefits and the establishment of a period of disability had been denied. His claim of disability is based on an arthritic condition which he described at the hearing as a "church without a priest * * * [in] that there is no hope for it." In his application for disability insurance benefits he alleged the year 1957 as date of onset or that in which he became unable to work due to this condition. The insured status requirement was last met on December 31, 1960 but his application was not made until September 8, 1967. Claimant gave as reasons for this considerable delay in filing an application the fact that he did not want to quit working and from 1957 on he "kept on trying and struggling until close to 1960" when he "had to quit and go to bed." He took no steps at that time to further his claim because he "was very ill * * * and didn't know for sure whether [he] had rights or not" (Tr. pp. 22-23)
The hearing examiner's decision[1] was essentially based on the insufficiency of medical evidence[2] which would establish a qualifying disability by reason of a physical impairment on or before the last day of applicant's insurance coverage. The situation now before the Court was accurately described in Wylie v. Secretary of Health, Education and Welfare, 296 F. Supp. 738, at page 741 (D.Conn., 1968):
"* * * This case is unlike the normal case, in which there is direct medical evidence obtained during the time when the applicant was in an insured status, the evidence is conflicting, and the hearing examiner weighs the evidence on each side. Here, the examiner's recommendation was based not on a weighing of conflicting evidence but on a lack of sufficient evidence of a medical impairment for the relevant period.
"The applicant has the burden of proving disability * * * Furthermore, the applicant must show that the disability occurred prior to the time the insured status ended * * * and where there is no evidence of the alleged impairment for the prior period, that impairment cannot be considered in determining disability."
Although noting that medical evidence from the period after the insured status expired might possibly aid in determining the condition before, the Court found that a medical report on the supposedly *194 disabling condition made thirteen years after the insured status expired was "purely speculative." See also: Bailey v. Finch, 300 F. Supp. 232 (W.D.Ark., 1969).
In the present case the only medical report submitted by plaintiff is dated September 14, 1967, seven years after the insured status ended and approximately ten years after the disability allegedly set in. The examining physician, Dr. José A. Martínez, made no finding or comment in this report other than indicating that claimant was treated with various prescriptions for pain in the right leg and diagnosed arthritis of the right lower extremity. Both at the hearing and during the disability interview held on September 8, 1967 plaintiff stated that he had never sought medical attention. Questioned by the hearing examiner he declared that before being treated by Dr. Martínez "the treatment * * * was these home remedies and different types of homemade things" (Tr. p. 29). Although having testified that he was never hospitalized before 1960, upon further questioning Mr. Rosado answered that he had been treated as an out-patient at the Arecibo District Hospital during the relevant period by a Dr. Eddie García whom he thought was in Viet Nam at the time. Fruitless efforts were made by the Social Security Administration to locate claimant's records both at the Arecibo District Hospital and the Arecibo Municipal Hospital.
There were no witnesses presented. Aside from the 1967 medical report the only other evidence introduced was plaintiff's testimony at the hearing concerning the painful condition resulting from the arthritis. Plaintiff argues in his brief in support of the complaint that the examiner's recommended decision, based on his failure to furnish medical evidence, ignored the subjective proof of pain and "incorrectly adhered to the rule that an impairment must be objectively measured by medical standards when disability can be established, as plaintiff did establish, with his uncontroverted testimony about his physical crippling impairments, which the Hearing Examiner includes in his decision, but gives no weight to the same." The contention advanced by plaintiff was considered by the Court of Appeals for the Fourth Circuit in Mounts v. Finch, 304 F. Supp. 910, 917 (S.D.W.Va., 1969) where it was stated that:
"While this Court is fully aware that clinical medical reports are not necessarily dispositive of the question of a claimant's disability * * * it is clear that such reports are essential to an obvious interrelation of the four elements of proof the fact finder must recognize in determining a claimant's ability or inability to engage in any substantial gainful activity. This interrelation includes (1) the objective medical facts, which are the clinical findings of treating or examining physicians divorced from their expert judgments or opinion as to the significance of these clinical findings, (2) the diagnoses and expert medical opinions of the treating and examining physicians on subsidiary questions of fact, (3) the subjective evidence of pain and disability as testified to by claimant, and (4) claimant's educational background, work history and present age. Underwood v. Ribicoff, supra. The record shows only the plaintiff's own declaration that he was disabled within the meaning of the Social Security Act. We think such evidence, standing alone, is entitled to little weight."
It is conceded that the examiner made reference to plaintiff's apparently crippled condition at the time of the hearing. However, the complete lack of medical evidence contemporaneous to the relevant period concerning the existence of the disability alleged is a clear indication of plaintiff's failure to meet his initial burden of proof. The examiner could hardly interrelate the elements of proof in this particular case when he lacked the benefit of an essential factor: medical opinion and data relative to the existence, continuity and severity of this *195 man's condition on or before December 31, 1960the last day he was insured. The one medical report on record, besides being too far removed in time from the insured period, contains no statement which could possibly aid the fact-finder in disclosing claimant's physical capacity almost a decade before. Moreover, claimant's oral testimony of pain all over his body and of limitation of movement, without more, falls short of the mark required of any disability benefits claimant in 42 U.S.C. § 423(d) (5) which provides that:
"An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require."
Finally, the Court must reject plaintiff's request that the case be remanded with an order that he be represented by counsel in all further proceedings before the agency surrounding his claim. Indeed it is within the Court's power to remand a case for reconsideration to the agency with instructions that additional evidence be received and incorporated into the record. (42 U.S.C. § 405(g)). Counsel for plaintiff, however, has not represented to the Court that he intends to submit additional evidence bearing upon his condition before the insurance coverage expired. No reason has been advanced which would justify remand. Neither is the Court persuaded by the allegation[3] that the only reason for the denial of benefits was the lack of assistance of counsel at the administrative hearing. The transcript of the hearing does not warrant that conclusion. The examiner afforded plaintiff a fair hearing at which he was given the opportunity to present any evidence and ask any questions. Time and again the examiner tried to refresh claimant's memory and appealed to him to bring forth any medical evidence from the time of his insured status which would support his disability claim. Apart from his recollection of treatment at the Arecibo District Hospital, plaintiff recognized that he had not sought treatment for his malady and could not offer evidence of its existence before the earnings requirement date. Faced with such a situation the Court has the duty to uphold the Secretary's finding that claimant did not establish a disability as defined under the Social Security Act and was, therefore, not entitled to receive disability insurance benefits. Having thus failed to meet the requirements of proof set forth in the Act the complaint must be dismissed and the decision of the Secretary of Health, Education and Welfare is hereby affirmed. It is so ordered.
NOTES
[1] Said decision was upheld by the Appeals Council by notice to petitioner of September 12, 1968.
[2] That part of the examiner's opinion which is pertinent herein reads as follows:
"* * * a claimant must have become disabled during the period that he maintained an insured statusin this case, at some time between January 1, 1957 and December 31, 1960, and of this basic requirement the claimant indicated at the hearing that he was well aware. This burden of proof this claimant has simply failed to sustain by the scant credible evidence that he has offered and applicable to said pertinent periodand this Hearing Examiner so finds. Claimant's present, apparently crippling condition, is irrelevant and immaterial to his physical state some 10-11 years previously on January 1, 1957, his alleged date of onset of disabilityand this Hearing Examiner further so finds."
[3] Brief in Support of Plaintiff's Complaint, page 4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568803/ | 29 So. 3d 484 (2010)
In re Mark Steven SMITH.
No. 2009-B-2523.
Supreme Court of Louisiana.
March 12, 2010.
*485 ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Mark Steven Smith. For the reasons that follow, we accept the recommendation of the disciplinary board and permanently disbar respondent.
UNDERLYING FACTS AND PROCEDURAL HISTORY
Between 2003 through 2005, respondent served as director of the Louisiana Film Commission. In his capacity as director of the Commission, respondent was charged with the responsibility of approving budgets submitted to the State of Louisiana by film production companies.
On August 17, 2007, the United States Attorney for the Eastern District of Louisiana filed a bill of information alleging respondent engaged in a conspiracy to willfully allow and approve inflated budgets to be submitted to the state by a film production company in order to receive inflated state tax credits. The bill of information alleged respondent knowingly solicited bribes to influence his issuance of state tax credits.
On September 7, 2007, respondent entered a plea of guilty in the United States District Court for the Eastern District of Louisiana to one count each of bribery and conspiracy. In the factual basis accompanying the guilty plea, respondent admitted that he knowingly conspired to falsely inflate movie budgets so that a film production company could reap bigger state tax credits; in return, respondent accepted cash bribes totaling $67,500.
Upon receiving notice that respondent had pled guilty to the criminal charges, the ODC filed a motion to place respondent on interim suspension pursuant to Supreme Court Rule XIX, § 19. On October 3, 2007, this court suspended respondent from the practice of law on an interim basis. In re: Smith, 07-1845 (La.10/3/07), 965 So. 2d 864.
Thereafter, the ODC filed one count of formal charges against respondent. The charges alleged respondent's actions violated Rule 8.4(a)(b) and (c) of the Rules of Professional Conduct.[1]
*486 Respondent answered the formal charges. His answer stated, in its entirety, "[d]ue to my guilty plea to bribery and conspiracy in the United States District Court for the Eastern District of Louisiana, I hereby relinquish my Louisiana law license, and will not contest the Board's formal charges."
Based on respondent's answer, the chair of the hearing committee determined that a formal hearing was not required. Accordingly, the chair issued an order providing that matter would proceed as a "deemed admitted" matter pursuant to Supreme Court Rule XIX, § 11(E)(3). The parties were given an opportunity to file written arguments and documentary evidence on the issue of sanctions, but respondent did not avail himself of this opportunity.
Hearing Committee Report
After considering the ODC's deemed admitted submission, the hearing committee determined that the formal charges were deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts and additional evidence presented by the ODC, the committee determined that respondent violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a), 8.4(b), and 8.4(c).
Citing In re: Rome, 01-2942 (La.9/26/03), 856 So. 2d 1167, the committee found that malfeasance by an attorney serving in a public office is serious misconduct. The committee determined that respondent's conduct, as a lawyer and public official, was both intentional and extensive. Relying on the ABA's Standards for Imposing Lawyer Sanctions, the committee concluded that disbarment is the baseline sanction.
The committee identified several aggravating factors: dishonest or selfish motive; pattern of misconduct; substantial experience in the practice of law (admitted 1994); and illegal conduct. In mitigation, the committee found the absence of a prior disciplinary record, and a cooperative attitude toward the proceedings.
After reviewing the jurisprudence, the committee concluded that respondent violated his duties as an attorney, and violated the public trust as a public servant, noting that "[b]ribery is a particular insidious evil because it poisons the very foundation of that public trust." The committee concluded that respondent's "conviction involving fraud and bribery while he occupied a position of trust as a public official goes to the very heart of our system of justice." Accordingly, the committee recommended that respondent be permanently disbarred. Neither respondent nor the ODC filed an objection to the hearing committee's recommendation.
Disciplinary Board Recommendation
Procedurally, the disciplinary board determined that this case did not fall under the provisions of the "deemed-admitted rule," Supreme Court Rule XIX, § 11(E)(3), because respondent filed a formal answer. Nonetheless, the board concluded that respondent essentially conceded that the issues of fact raised by the formal charges were not in dispute. Additionally, it noted that in his answer, respondent did not request an opportunity to present evidence in mitigation.
*487 Turning to the merits, the board determined that respondent, while serving as director of the Louisiana Film Commission, acted intentionally when he engaged in the crimes of conspiracy and bribery. It found respondent knowingly and willfully allowed and approved inflated budgets to be submitted to the state by a film production company. Thereafter, respondent caused to be issued inflated state tax credits based upon the fraudulent budgets submitted by the film production company. The board concluded that respondent violated duties owed to the public and the profession, and that the applicable baseline sanction is disbarment.
In aggravation, the board recognized the following factors: dishonest or selfish motive; pattern of misconduct; substantial experience in the practice of law; and illegal conduct. In mitigation, the board found the absence of a prior disciplinary record, but rejected the committee's finding of cooperative attitude toward the proceeding.
In determining an appropriate sanction, the board found guidance in In re: Rome, 03-0744 (La.9/26/03), 856 So. 2d 1167, and In re: Burks, 07-0637 (La.8/31/07), 964 So. 2d 298, in which this court permanently disbarred attorneys who knowingly engaged in criminal conduct while serving in a governmental position. As in those cases, the board found respondent engaged in conduct amounting to malfeasance in office, and entered a plea of guilty to felonious criminal acts resulting from his misconduct in office. Accordingly, the board recommended that respondent be permanently disbarred.
Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation. Accordingly, the matter was presented to this court for entry of an order of discipline pursuant to Supreme Court Rule XIX, § 11(G)(a).
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So. 3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. In re: Sharp, 09-0207 (La.6/26/09), 16 So. 3d 343.
Procedurally, we agree with the disciplinary board's conclusion that respondent's answer prevents this case from falling within the scope of Supreme Court Rule XIX, § 11(E)(3), which allows the facts of the formal charges to be deemed admitted when the respondent does not answer. Nonetheless, respondent's answer, in which he indicates he will not contest the formal charges and wishes to relinquish his law license, represents an implicit acknowledgment of the correctness of the facts alleged in the formal charges.
Moreover, when the disciplinary proceedings involve an attorney who has been convicted of a serious crime, the conviction is conclusive evidence of guilt, and the sole issue presented is whether respondent's crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Meece, 08-2980 (La.4/13/09), 6 So. 3d 751; In re: Boudreau, 02-0007 (La.4/12/02), 815 So. 2d 76; Louisiana State Bar Ass'n v. Wilkinson, 562 So. 2d 902 (La.1990).
The record contains evidence establishing that the federal court accepted *488 respondent's plea and adjudged respondent guilty of crimes arising from his activities while serving as director of the Louisiana Film Commission. The crimes of which respondent were convicted are felonies, which are considered to be serious crimes under Supreme Court Rule XIX, § 19(B). Based on this evidence, it is clear respondent's conduct violates Rule 8.4, and therefore warrants discipline.
In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. In re: Coffman, 09-1165 (La.9/25/09), 17 So. 3d 934. The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Smith, 09-1141 (La.9/25/09), 17 So. 3d 927.
It is well-settled that the baseline sanction for misconduct arising out of felony convictions involving bribery is disbarment. See, e.g., In re: Mithun, 00-3174 (La.1/5/01), 776 So. 2d 426; In re: Hingle, 98-0774 (La.9/18/98), 717 So. 2d 636; In re: Collins, 94-2251 (La.11/18/94), 645 So. 2d 1131; Louisiana State Bar Ass'n v. Pitard, 462 So. 2d 178 (La.1985). Numerous aggravating factors are present in this case, including dishonest or selfish motive, a pattern of misconduct, substantial experience in the practice of law, and illegal conduct. The sole mitigating factor we are able to discern from the record is respondent's lack of a prior disciplinary record. Given the absence of any significant mitigating factors or extenuating circumstances, we see no reason to depart from the baseline sanction of disbarment.
Having found respondent should be disbarred, we now turn to the question of whether respondent's misconduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct the court might consider worthy of permanent disbarment. In re: Arbour, 09-1217 (La.10/2/09), 18 So. 3d 747.
For purposes of the instant case, Guideline 7 is relevant. That guideline refers to "[m]alfeasance in office which results in a felony conviction, and which involves fraud."
Respondent's actions fall within the parameters of this guideline. Respondent misused his office as director of the Louisiana Film Commission to fraudulently inflate state tax credits in exchange for bribes. His actions resulted in federal felony charges, to which respondent has pled guilty.
This court has consistently held that an attorney occupying a position of public trust is held to a higher standard of conduct than an ordinary attorney. See In re: Fahrenholtz, 09-0748 (La.10/2/09), 18 So. 3d 751; In re: Bankston, 01-2780 (La.3/8/02), 810 So. 2d 1113; In re: Naccari, 97-1546 (La.12/19/97), 705 So. 2d 734; In re: Huckaby, 96-2643 (La.5/20/97), 694 So. 2d 906. By his actions, respondent has revealed he falls far short of this high ethical standard, and lacks the moral fitness to practice law in the State of Louisiana.
We do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So. 2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional *489 duty to regulate the practice of law if we did not impose that sanction under the egregious facts of this case. Accordingly, we will accept the recommendation of the disciplinary board and permanently disbar respondent.
DECREE
Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Mark Steven Smith, Louisiana Bar Roll number 22867, be stricken from the roll of attorneys, and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Page 11 of Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[*] Chief Justice Kimball not participating in the opinion.
[1] Rule 8.4 provides, in pertinent part:
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) Commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568825/ | 29 So. 3d 868 (2009)
Samuel Anthony BROWN et al.
v.
Jennie M. MELTON et al.
1061325.
Supreme Court of Alabama.
August 28, 2009.
John W. Kelly III of Kelly & Kelly, Selma; and Charles H. Sims III, Selma, for appellants.
Robert H. Turner, Sr., Marion, for appellees.
MURDOCK, Justice.
Samuel Anthony Brown and other heirs of Carnell Melton Brown ("the Brown heirs") appeal from a judgment in favor of Jennie M. Melton and certain other heirs of Melvin Melton and Lula Melton ("the Melton heirs"). The judgment concerns a complaint the Melton heirs filed seeking the partition of real property pursuant to § 35-6-20, Ala.Code 1975; the Brown heirs and the Melton heirs both own interests in the property. For the reasons discussed below, we dismiss the appeal.
I. Facts and Procedural History
During their lifetime, Melvin Melton and Lula Melton acquired 223.5 acres of property in Perry County. The couple had eight childrenincluding Jennie M. Melton ("Jennie") and Carnell Melton Brown ("Carnell"). Upon the deaths of Melvin and Lula, their eight children inherited the property as tenants in common. On August 15, 1977, the children conveyed to Jennie by quitclaim deed 18 acres of the property, including part of the property on which Jennie had lived since she was 10 years old. On January 9, 1995, the children conveyed to Carnell and her husband, Henry Brown, 20 acres of the property. The 223.5 acres less the parcels conveyed to Jennie and Carnell and her husband are hereinafter referred to as "the subject property."
On January 7, 2003, the Melton heirs, who included Jennie, and many of the other heirs at law of Melvin and Lula and Betty Melton ("Betty"), who owned a one-sixteenth interest in the subject property,[1] filed a complaint against Carnell for a partition of the subject property pursuant to § 35-6-20, Ala.Code 1975.[2] The Melton *869 heirs alleged that the subject property could be equitably divided in kind among the cotenants without a sale of the property. The original defendant, Carnell, answered the complaint and contended that the subject property could not be equitably divided, and she moved for a sale of the subject property and a division of the proceeds pursuant to § 35-6-100, Ala.Code 1975.[3] Subsequently, Betty asked to be aligned with Carnell as a defendant, and the trial court granted her request.
Pending trial, several of the original Melton heirs and Carnell died.[4] Their respective heirs were substituted as parties to the action. Among Carnell's heirs, i.e., the Brown heirs, is Carolyn Brown ("Carolyn"), who lives on the 20-acre parcel that was deeded to Carnell and her husband in 1995.
On July 19, 2004, the Melton heirs filed a notice of joint election of moieties, requesting that their several moieties be considered one moiety, thereby having their portion of the subject property set apart as one undivided fractional share of the whole for all the Melton heirs.
A trial commenced on September 19, 2005. Jennie testified on behalf of the plaintiffs concerning the nature and topography of the subject property. She stated that she had lived on the property adjoining the subject property since she was 10 years old and that she was very familiar with the subject property. Jennie generally described the subject property as follows:
"It's livable for anybody that wants to live there. It's a wooded area, some parts of it, and some parts of it isn't. There are hills in some areas, creeks in some areas. And some there are none."
Jennie also described several portions of the subject property in detail. She averred that she believed the 20-acre parcel adjoining the subject property that was deeded to Carnell and her husband (i.e., the parcel then owned by the Brown heirs) to be "the most valuable property," but that in general no one parcel of the remaining property is "substantially more valuable" than any other. Jennie testified that she had consulted each of the plaintiffs and that it was their desire that their portion of the subject property be allotted as an undivided whole to all the Melton heirs.
Regarding partitioning the property, Jennie testified as follows:
"Q Now you have filed a petition in court asking the court to divide your father's property.
"A Right.
"Q Do you feel that this property can be equitably divided?
*870 "A It can. It can. And all we are asking for is justice, that each family, each sibling or the sibling's heirs have their share and them be satisfied. All we want is justice.
". . . .
"Q Now Ms. Melton, in your contact with all the heirs that you have testified about, is it the desire of the plaintiff[s] as far as dividing the property is concerned that the Court leave all of your interests together in one pot?
"A Yes.
"Q And if the Court does that, then the Court will only have to divide an interest out to the Browns, right, and Ms. Betty Melton?
"A Correct.
". . . .
"Q And the Court will only have to make provisions for a seven-acre plot for Ms. Brown [] for the Browns?
"A Right.
"Q And a 13-acre plot for Ms. Betty Melton?
"A Right."
Carolyn was the first of two witnesses for the defendants. She testified that she is unemployed and that she stays at home taking care of her house and the land on which it is located. She averred that she has been living on a portion of the 20 acres belonging to the Brown heirs since 2000 and that she has personally seen most of the subject property. She claimed that the 18-acre parcel belonging to Jennie "is completely flat" and that Jennie "has the best of the land."[5] Carolyn stated that there exists approximately 12 acres of flatland scattered in various places on the subject property and that the rest is "[h]illy or gully." Regarding partitioning the property, Carolyn testified as follows:
"Q Is there any way on earth that that [property] can be equitably divided between eight people?
"A There is no way, no way eight people can get equallysomebody is going to get slighted.
"Q Is there any way it can be split in half?
"A No way.
"Q Is there any way it can be split two-thirds?
"A No way, no way.
"Q And you want this land to remain intact where either your family or they can buy the other one out?
"A That's all right."
On cross-examination, Carolyn was asked about her testimony that most of the land consists of hills and gullies.
"Q Hills and gullies have very little value, would you think?
"A That's what I'm told.
"Q And so if it's all hills and gullies, it all has very little value?
"A That's what I'm told.
"Q And if everybody got hills and gullies, everybody would be getting the same thing, wouldn't they?
"A Who wants gullies and hills? You know, they want something that's going to be of value. You have got to be able to fill that in to even get a house on it.
"Q But that's all there is, is there not?
"A Well, you have got some flat land. No, my aunt [Jennie] has got the best of it. She got 18 acres or 20 acres there of flat land, straight flat land all around. That's the best property."
*871 The second witness for the defense was Stan Kennie, who stated that he was qualified to speak about the subject property because he had hunted on it since 1991. Regarding partitioning the property, Kennie testified as follows:
"Q ... In your judgment is there any way that this land can be split up eight ways and be fair to the eight people?
". . . .
"A Sure, it can be split.
"Q And be fair?
". . . .
"Q Is there any way that all of this land, the flat and the gullies and the hills could be split and be fair, everybody fair with it? It can't be equitably split up and be fair, can it?
"A Anything can be split. But whether it can be fair, that's a different story. You can't use none of that.
"Q It would be hard as heck to split that up, wouldn't it?
"A It would be very hard."
On July 21, 2006, based on the testimony of the witnesses and certain photographs that had been introduced at trial, the trial court entered its judgment. The trial court determined that the children of Melvin Melton and Lula Melton had intended the 18 acres they deeded to Jennie in 1977 and the 20 acres they deeded to Carnell and her husband "would be a credit against the one-eighth share of the Grantees' inheritance of 27 acres, more or less." Consequently, it concluded that of the original 223.5 acres, 185.5 were the subject of the disputeafter the 18 acres deeded to Jennie and the 20 acres deeded to Carnell and her husband were excluded.[6] Concerning whether the subject property could be equitably divided, the trial court's order stated:
"13. The Court finds from the testimony that those heirs who wish to have the property sold are Betty Melton (1/16th interest or 13 acres, more or less), wife of Andrew Melton, deceased, and the 12 surviving children of Carnell Melton Brown and Henry Brown (1/96th interest or 7 acres, more or less) having previously deeded 20 acres.
"Therefore, the Court finds that the property can be equitably divided."
(Emphasis omitted.) The trial court then ordered as follows:
"1. That Betty Melton receive 13 acres, more or less[,] of the remaining 185 acres, more or less, and the surviving heirs of Carnell Melton Brown and Henry Brown receive 7 acres, more or less, of the remaining 185 acres, more or less.
"2. The recipients may choose the acreage of their choice so long as the same is contiguous."
The Brown heirs filed a motion for a judgment as a matter of law or, in the alternative, for a new trial, pursuant to Rule 59, Ala. R. Civ. P. In accordance with Rule 59.1, Ala. R. Civ. P., the parties filed a written consent to extend the time for the trial court to rule on the postjudgment motion. Subsequently, the Melton heirs filed a purported withdrawal of their consent to extend the time for the trial court's ruling on the Brown heirs' postjudgment motion. Within 42 days from the date of the purported withdrawal of consent by the Melton heirs, the Brown heirs filed a notice of appeal to the Court of Civil Appeals.[7] The Court of Civil Appeals transferred the appeal to this Court.
*872 Thereafter, this Court issued an order informing the trial court and the parties that the Melton heirs' purported withdrawal of their consent to extend the time for the trial court to rule on the Brown heirs' postjudgment motion was not effective because Rule 59.1, Ala. R. Civ. P., does not provide for such a maneuver. Accordingly, pursuant to Rule 4(a)(5), Ala. R.App. P., this Court held the Brown heirs' appeal in abeyance pending a ruling by the trial court on the Brown heirs' postjudgment motion. On March 11, 2009, the trial court entered an order denying the Brown heirs' motion for a judgment as a matter of law or, in the alternative, for a new trial, pursuant to Rule 59, Ala. R. Civ. P.
Notwithstanding the foregoing, we must dismiss the present appeal as being from a nonfinal judgment. In McGill v. McGill, 888 So. 2d 502 (Ala.Civ.App.2004), a divorce case in which the judgment provided, as to the property division, that "`[t]he [wife] shall make 2 lists and the [husband] shall pick which list he wants,'" 888 So.2d at 503, the Court of Civil Appeals explained:
"The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So. 2d 869, 871 (Ala.Civ.App.1979).
"`A final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.... All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own.'
"Jewell v. Jackson & Whitsitt Cotton Co., 331 So. 2d 623, 625 (Ala.1976). Accordingly, this court, in Grubbs v. Grubbs, 729 So. 2d 346, 347 (Ala.Civ.App.1998), held that a divorce judgment was not final where the distribution of the personal property had not yet been completed by the trial court and that this court therefore could not `know all the circumstances' of that particular case."
McGill, 888 So.2d at 504.
The complaint in the present case sought a partition of the subject property. As of yet, a final order of partition has not been entered. As was true in McGill, "[t]here must be some final disposition of the ... property by the trial court before its judgment is final." 888 So.2d at 505. See also Ala.Code 1975, § 35-6-22 (stating in regard to an action for partition in the circuit court that "[t]he court shall ascertain and declare the rights, titles and interests of all the parties to such action ... and shall give judgment according to the rights of the parties").
Accordingly, the appeal is dismissed.
APPEAL DISMISSED.
COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.
NOTES
[1] The Melton heirs own over a two-thirds interest in the subject property.
[2] Section 35-6-20 provides:
"The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of plaintiff or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to the Alabama Rules of Civil [P]rocedure and, where necessary, allow service of process by publication as prescribed therein."
[3] Section 35-6-100 provides:
"Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not."
[4] Carnell's husband also passed away.
[5] Jennie denied that her parcel is mostly flat.
[6] Neither the Brown heirs nor the Melton heirs dispute this finding.
[7] The Brown heirs are the only appellants in this action; Betty Melton did not appeal the ruling of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568796/ | 29 So. 3d 228 (2009)
Christopher Scott MILLER, Mary J. Miller, Gary Anderson, and Patricia Anderson
v.
MILLER'S LANDING, L.L.C., Christopher Miller, James A. Robeson, and J. Ryan Conner.
2080033.
Court of Civil Appeals of Alabama.
July 2, 2009.
*229 Robert H. Brogden, Ozark, for appellants.
Dow T. Huskey, Dothan, for appellees.
*230 THOMAS, Judge.
This appeal concerns the validity of an amendment to a restrictive covenant governing the minimum square footage of single-family homes in a residential subdivision. The essential facts are undisputed.
Miller's Landing, L.L.C. ("the company"), is an Alabama limited liability company with four membersthree physicians and a trust. Each member owns 25% of the company. The physicians are Dr. Christopher Miller, Dr. James A. Robeson, and Dr. J. Ryan Conner, who practice together in a medical partnership located in Dothan. The trust is the Miller Real Estate Trust ("the trust"), which was established by Christopher Scott Miller (hereinafter referred to as "Scott Miller" in order to differentiate him from Dr. Chris Miller), with Scott Miller's father-in-law, Gary Anderson, designated as the trustee.
The trust and the physicians each invested $55,000 in the company, and the company then purchased 41 acres of real property in Dale County for the purpose of developing a subdivision called "Bethlehem Fields." Scott Miller and the investors planned to build their own homes on lots in the subdivision, and they planned to offer the remaining lots for sale to the public through the company. Scott Miller and each individual investor chose a building lot. On September 8, 2004, the company recorded its subdivision plat in the Dale Probate Court. The plat shows 18 lots ranging in size from slightly larger than 1 acre to slightly larger than 2½ acres. A notation on the plat states that the "[m]inimum house size for each lot is 3,500 square feet."
On September 30, 2004, Scott Miller recorded a deed conveying Lot 9 of the subdivision, comprising 2.45 acres, to him and his wife, Mary J. Miller. Shortly thereafter, Scott and Mary Miller began constructing a 7,500-square-foot home on the lot. According to Scott Miller, Dr. Chris Miller was supposed to have been the next to build in the subdivision, but, he said, Dr. Miller decided not to build his home until some of the available lots had been sold to the public so that he could use the sales proceeds to defray the construction costs on his own home.
On November 19, 2004, the company filed subdivision restrictions setting forth, among other things, a minimum building size of 3,500 square feet for each house in the subdivision. There was no provision for amending the subdivision restrictions. On August 10, 2005, the company filed a second set of subdivision restrictions, reducing the minimum building size and linking it to the size of the lots in the subdivision. A house built on a lot smaller than 1.4 acres was to have no less than 3,000 square feet; a house built on a lot larger than 1.4 acres but smaller than 2 acres was to have no less than 3,200 square feet; and a house built on a lot of 2 or more acres was to have no less than 3,400 square feet. Scott Miller consented to the second set of restrictions. Those restrictions also contained no provision for further amendment.
On June 13, 2006, the four members of the company executed a third set of subdivision restrictions, leaving intact the previous square-footage requirements but providing, for the first time, a procedure for amending the restrictions: § E-8 provided that the "covenants and restrictions may be amended by an instrument executed by 75% of the property owners recorded in the public records of Dale County ...." At that time, the company and Scott and Mary Miller were the owners of all the lots in the subdivision. Dr. Chris Miller had not built a house in the subdivision, and one of the other physician members of the company had purchased a house in another *231 neighborhood. The evidence indicated that the company's real-estate agent had been suggesting for some time that the company consider reducing the square-footage requirement of the building restrictions because, the agent said, although she had received a number of inquiries concerning the lots, potential buyers lost interest in buying when they were made aware of the building restrictions.
The third set of restrictions was filed in the Dale Probate Court on June 21, 2006. On June 29, 2006, Gary Anderson recorded a warranty deed conveying Lot 10 in the subdivision to him and his wife, Patricia Anderson. The Andersons' lot is adjacent to the lot owned by Scott and Mary Miller.
On March 20, 2007, the property owners held a meeting to discuss an amendment to the subdivision restrictions. At that time, 16 of 18 lots were owned by the company, 1 lot was owned by Scott and Mary Miller, and 1 lot was owned the Andersons. The owners voted to amend the building requirement to reflect that a house built on a lot of 2 or more acres was to have no less than 2,500 square feet and that a house built on a lot smaller than 2 acres was to have no less than 2,300 square feet. The company cast 16 votes, or 88.8% of the eligible votes, in favor of the amendment; the Andersons cast 1 vote against the amendment; and Scott and Mary Miller neither attended the meeting nor voted on the amendment. The evidence was undisputed that Scott and Mary Miller had been given proper notice of the time, place, and purpose of the property owners' meeting. The amended restrictions were filed in the Dale Probate Court on April 27, 2007.
On June 19, 2007, Scott and Mary Miller and the Andersons sued the company, the physicians, and SunSouth Bank, alleging fraud and breach-of-contract claims and seeking a judgment declaring that the last amended subdivision restrictions were null, void, and unenforceable. The company and the physicians answered and counterclaimed, alleging fraud and breach-of-contract claims, and also filed a third-party breach-of-contract action against the trust. Before trial, the parties stipulated that SunSouth Bank had been joined as a party only because it was the holder of the mortgage on the lots in the subdivision, that it had consented to the amended subdivision restrictions, and that it would not participate in the trial. The witnesses at trial included Scott Miller, Gary Anderson, Craig Griffin, a local real-estate developer, Dr. Miller, Dr. Miller's wife, and Dr. Robeson.
Scott Miller testified that he and the physicians had originally envisioned Bethlehem Fields as an exclusive, gated community where they would build their own homes and from which they would make a profit by selling lots to the public. He stated that, in his opinion, the square-footage reduction in the building requirements would result in diminishing the value of his house and altering the general scheme or plan of development of the subdivision. He concluded that, once the physicians had decided not to build their own homes in the subdivision, their motivation had become solely profit-driven, and, thus, he said, they were determined to reduce the square-footage requirement in order to make the subdivision more marketable to the general public without considering the impact upon the character of the neighborhood. Scott Miller acknowledged that he had signed the resolution agreeing to the amendment procedure outlined in § E-8, but, he said, he was under the impression that amendments were to be used only for purposes of effecting "cosmetic" changes, such as "flowers and stuff" to the subdivision restrictions.
Craig Griffin, the developer of the Griffin Gate subdivision, which is located *232 across the street from the Bethlehem Fields subdivision, testified that the average lot size in his subdivision is one acre, but some of the lots are larger than two acres. Griffin stated that he had sold half the lots in his subdivision, which has a minimum building requirement of 3,000 square feet for all houses. Griffin opined that reducing the square-footage requirement for houses built in the Bethlehem Fields subdivision would adversely affect the value of the homes owned by Scott and Mary Miller and the Andersons and would "change the general scheme of development of the subdivision."
Dr. Chris Miller conceded that reducing the square-footage requirement was an attempt to boost the sales of lots in the subdivision. He also conceded that reducing the size of the houses that could be built on the lots in the subdivision could, at some point, change the general scheme or plan of development of the subdivision, but, he said, he did not think that point had been reached by allowing 2,300- and 2,500-square-foot houses. Further, he opined that the character of a subdivision is determined by factors other than the size of the houses in the subdivision. Dr. Miller testified that, although the initial subdivision restrictions had specified a 3,500-square-foot minimum building requirement, no one had ever represented to Scott Miller that that requirement would endure "forever." He explained that the development plan was a "moving target," in that the company was trying to find what worked for the buying public as well as what would result in a successful business plan for the members of the company. He said that no one, including Scott Miller, would profit if 16 of 18 subdivision lots remained unsold.
The parties filed posttrial briefs, after which the circuit court entered a judgment on July 1, 2008, in favor of all defendants on the plaintiffs' claims. The circuit court also adjudicated the counterclaims and the third-party claim; none of the issues underlying those claims are raised on appeal. Scott and Mary Miller and the Andersons timely appealed to the Alabama Supreme Court. The supreme court transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.
On appeal, Scott and Mary Miller and the Andersons raise one issue: whether "the reductions in the minimum square footage requirements by the developer of Bethlehem Fields subdivision [were] reasonable and consistent with the general scheme or plan of development of the subdivision." On that issue, the circuit court's judgment determined the following:
"Plaintiffs rely upon the case of Wright v. Cypress Shores Dev. Co., 413 So. 2d 1115 (Ala.1982), for the proposition that restrictive covenants may not be amended unless the amendment is reasonable and is not inconsistent with or does not destroy the general scheme or plan of development. The court finds this to be the law in Alabama at this time.
"Is the amendment reasonable? Is it based upon good, logical reason or does it appear to be arbitrary and capricious? The court finds that there was good, logical reason for the amendment. The lots were not selling. Potential profit or the possibility of breaking even was in increasing jeopardy due to increasing interest payments. Potential buyers had requested permission to build homes with smaller square footages and a listing real estate agent seemed to be of the opinion that a reduction in the minimum square footage would potentially increase sales. It is no mystery that the market of potential buyers would be increased by a reduction in the cost of construction. It is also reasonable to infer that, if lots do not sell and *233 houses are not built, then the value of Plaintiffs' investments would decline. Perhaps as much or more so than from the construction of smaller homes in the subdivision. The court finds that the action taken in amending the restrictive covenants and reducing the minimum square footage was not arbitrary or capricious or done on a whim, but was based on sound reason. The court further finds that the amendment to restrictive covenants contained in § E-8 of the Covenants and Restrictions for Bethlehem Fields Subdivision, recorded June 21, 2006, was a valid amendment.
"Under that amendment more than 75% of the property owners of the subdivision found there to be good reason to approve the amendment in question. Is the amendment in question inconsistent with the general scheme or plan of development?....
".... Neither the phrase `general plan or scheme of development' nor the word `general' is defined in the restrictive covenants in question. Furthermore, the court has been unable to find any legal definition assigned to the same. Therefore, the court finds that Defendants' suggestion of considering the ordinary meaning of this phrase or word to be well taken. Defendants note the Webster's Collegiate Dictionary, Tenth Edition, definition of the word `general' to be `concerned or dealing with universal rather than particular aspects.' The court also finds in that same publication the definition of `relating to, determined by, or concerned with main elements rather than limited details.' The court further accepts Defendants' definitions of the words `plan' and `scheme.'
"Is the general plan and scheme of the development to create a residential subdivision or does the general plan and scheme include all of the specific restrictions contained in the restrictive covenants? If the general plan and scheme is something other than `residential development,' the court must subjectively interpret from the evidence all that the general plan and scheme includes. The court recognizes from the Wright decision that the amendment allowing modification of the restrictive covenants by a 75% vote is not unlimited. However, in citing Schmidt [v. Ladner Construction Co., 370 So. 2d 970 (Ala.1979)], the Wright court stated, `[m]ore importantly, however, the proposed modifications under scrutiny in [Schmidt] neither annulled, nor were inconsistent with, the general scheme or plan of development for the subdivision or its residential use purpose.' (Emphasis added.) In Schmidt the proposed amendment was to reduce the ground floor area for a one-story dwelling from 1400 to 1200 square feet.
"By interpreting the phrase `general plan and scheme' as it applies to the restrictive covenants in question using the ordinary meaning of the words `general,' `plan' and `scheme' by definition as previously cited, the court finds that the general plan and scheme is residential development and that the myriad restrictions contained in the document are specifics with regard to that general plan and scheme. The reduction of the minimum square footages of the residences provided in the amendment in issue here is not inconsistent with the general plan and scheme of a residential development."
Standard of Review
Because the essential facts are undisputed and only a question of law is presented with respect to whether the amended restrictive covenant is valid, our review is de novo. See Poffenbarger v. Merit Energy *234 Co., 972 So. 2d 792, 795 (Ala.2007) (citing Christian v. Murray, 915 So. 2d 23, 25 (Ala.2005)).
The Parties' Arguments
Scott and Mary Miller and the Andersons argue that the April 27, 2007, amendment reducing the minimum area of a house that can be built on the larger lots in the subdivision from 3,400 square feet to 2,500 square feet and reducing the minimum area of a house that can be built on the smaller lots in the subdivision from 3,000 square feet to 2,300 square feet was invalid. Relying solely on Wright v. Cypress Shores Development Co., 413 So. 2d 1115 (Ala.1982), they argue that the amendment was unreasonable and inconsistent with the general scheme or plan of development of the subdivision.
In Wright, the developer of a subdivision with a "residential-only" restrictive covenant had reserved the right to amend, through its Architectural Control Committee, the restrictive covenants applicable to the subdivision. When the Committee approved the building of a convenience store on two of the lots in the subdivision, the property owners sought declaratory relief. The trial court denied relief, and the property owners appealed to the Alabama Supreme Court.
Citing its earlier decision in Hall v. Gulledge, 274 Ala. 105, 145 So. 2d 794 (1962), and the Florida decision of Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So. 2d 665, 666 (Fla. Dist.Ct.App.1974), our supreme court held that the developer of a subdivision may reserve the right to unilaterally "annul, cancel, amend or modify the restrictive covenants" applicable to a subdivision so long as the developer exercises that right "in a reasonable manner consistent with [the] general scheme or plan of development" of the subdivision. Wright, 413 So.2d at 1124. The court decided that canceling the restriction so as to permit the construction of a convenience store in a residential subdivision was "an unreasonable exercise of the Committee's authority and highly inconsistent with the general scheme or plan of development upon which [the property owners had] relied when purchasing their lots." Id.
Scott and Mary Miller and the Andersons argue that, although the trial court purported to apply Wright when it held that the amendment did not violate the reasonableness/plan-of-development test, the trial court misconstrued the test. They contend that the trial court's interpretation of the "reasonableness" prong of the test was erroneous because in determining reasonableness, they say, the question is not whether one can assign a logical reason for amending a building requirement, but whether the substance of the amendment is reasonable. They also maintain that the trial court misconstrued the phrase "general scheme or plan of development" to encompass only the overall residential-use purpose of the subdivision without considering the specific character of the subdivision.
The company and the physicians first argue that Wright is distinguishable and, therefore, that the reasonableness/plan-of-development test does not even apply to the amendment at issue here. They point out that Wright was decided in the context of a right reserved by the developer to unilaterally amend the restrictions, whereas in this case the amendment was voted upon and agreed to by 75% of the property owners, all of whom had previously approved the amendment procedure. The company and the physicians maintain that there is no indication in Wright that the reasonableness/plan-of-development test applies when the amendment of a restrictive covenant results from a vote of the property owners. *235 In the alternative, they argue that, if the reasonableness/plan-of-development test is applicable, then the trial court correctly applied the test to the facts before it.
Analysis
Section E-8 of the governing documents for the subdivision provides that "covenants and restrictions may be amended by an instrument executed by 75% of the property owners recorded in the public records of Dale County ...." Because the company, as the developer of the subdivision, owned all the unsold lots, and only 2 of the 18 lots had been sold on March 20, 2007, when the vote on the amendment was taken, it was the developer who determined the outcome of the vote.
Under the circumstances, it is somewhat disingenuous to argue that Wright has no application to this case because it dealt with an amendment made unilaterally by a developer, rather than an amendment approved by a vote of the property owners. In the present case, the company did not engage in a sham or artifice that allowed it to unilaterally amend the building-requirement restriction. Compare Rocky Ridge Ranch Prop. Owners Ass'n v. Areaco Investment Co., 993 S.W.2d 553, 555 (Mo.Ct. App.1999) (invalidating an amendment approved by 2/3 of the subdivision property owners because developer, who owned only one-half the lots in the subdivision between 1976 and 1994, platted an additional 1150 lots in 1994, when the vote on the amendment was taken, thus allowing it to "unilaterally execute" an amendment to the restriction). Nevertheless, the company was able to control the outcome of the vote on the amendment because its 16 votes accounted for 88.8% of the total votes.
We conclude that the reasonableness/plan-of-development test announced in Wright is applicable here because the decision to amend the restriction in this case was, for all practical purposes, made by the developer. However, even if Wright is not strictly applicable to the facts before us, the test to determine the validity of the amendmentand the resultis the same.
Although Alabama courts have not decided the issue, the majority of courts in other jurisdictions that have considered the question have held that the power to amend a restrictive covenant by a vote of less than 100% of the property owners in a subdivision is subject to a "reasonableness" standard, see, e.g., Mulligan v. Panther Valley Prop. Owners Ass'n, 337 N.J.Super. 293, 302, 766 A.2d 1186, 1191 (2001) (noting that the majority of jurisdictions employ the reasonableness standard); Armstrong v. Ledges Homeowners Ass'n, 360 N.C. 547, 559 n. 2, 633 S.E.2d 78, 87 n. 2 (2006) (collecting cases), and many courts further require that the amendment be consistent with the general plan of the development, see Bay Island Towers, Inc. v. Bay Island-Siesta Ass'n, 316 So. 2d 574, 575 (Fla.Dist.Ct.App.1975); Harrison v. Air Park Estates Zoning Comm., 533 S.W.2d 108, 111 (Tex.Civ.App.1976); Shafer v. Board of Trs. of Sandy Hook Yacht Club Estates, Inc., 76 Wash.App. 267, 273-74, 883 P.2d 1387, 1392 (1994) (quoting Lakemoor Cmty. Club, Inc. v. Swanson, 24 Wash.App. 10, 15, 600 P.2d 1022, 1025 (1979), quoting in turn Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d at 666, the Florida decision upon which our supreme court relied in Wright).
In Armstrong v. Ledges Homeowners Ass'n, supra, the Supreme Court of North Carolina rejected the argument that "any amendment that is adopted in accordance with association by-laws and is neither illegal nor against public policy is valid and enforceable, regardless of its breadth or *236 subject matter." 360 N.C. at 559, 633 S.E.2d at 87. The court held, instead, that "a provision authorizing a homeowners' association to amend a declaration of covenants does not permit amendments of unlimited scope; rather, every amendment must be reasonable in light of the contracting parties' intent." Id.
Our conclusion that the reasonableness/plan-of-development test applies even to an amendment that results from a vote of the property owners is strengthened by reference to the provisions of the Restatement (Third) of Property: Servitudes (2000). Based on the Restatement definitions, the Bethlehem Fields subdivision is a "common-interest community," see Restatement § 1.8, and its restrictive covenants are "servitudes," see Restatement §1.1 and § 1.3(3). Section 6.13 of the Restatement enumerates the duties of a common-interest community to its members, including the duty "to act reasonably in the exercise of its discretionary powers, including rulemaking, enforcement, and design-control powers." The duty to act reasonably also applies to the power to amend the declaration, or governing documents, of a common-interest community. See Restatement § 6.10 at 200 (Comment f).
Having determined that the reasonableness/plan-of-development test applies to the amendment at issue in the present case, we now review the trial court's determination that the test was satisfied.
Reasonableness
The following statement by the Washington Court of Appeals represents a concise synthesis of the factors that courts have examined in order to determine whether an amendment to a restrictive covenant is reasonable: "In assessing what constitutes `a reasonable manner consistent with the general plan of the development,' we look to the language of the covenants, their apparent import, and the surrounding facts." Meresse v. Stelma, 100 Wash.App. 857, 865, 999 P.2d 1267, 1273 (2000). "Surrounding facts" include:
(1) whether the amendment was enacted in compliance with the procedural requirements of the governing documents of the subdivision, see Windom v. Easley, 495 So. 2d 46, 47-48 (Ala.1986) (stating that "[i]f the amendments were fraudulently obtained and proof of this fact was made, then the plaintiff was entitled to have the original covenants ... enforced; however, there is nothing in the record which indicates that the signatures in support of the amendment were falsified or obtained by fraud, and we must conclude that the trial judge found that they were not"); Dauphin Island Prop. Owners Ass'n, v. Kuppersmith, 371 So. 2d 31 (Ala.1979) (holding that a petition signed by a majority of property owners to amend a restriction did not comply with the formal amendment procedure set out in the governing documents of the association);
(2) whether the amendment was enacted in a reasonable manner, e.g., whether the majority of owners acted with due regard for the rights of minority owners, see Meresse v. Stelma, 100 Wash.App. at 867, 999 P.2d at 1274 (invalidating an amendment voted by the majority of owners that relocated the subdivision access road onto a minority owner's property; the court concluded that the majority, by characterizing its action as "`maintenance, repairs,' or `additional construction on the road'"an action that did not require unanimous approval under the governing documents of the subdivisionhad attempted to evade the unanimity requirement); and
(3) whether the amendment represents a good-faith attempt to adapt to changing circumstances, see Matthews v. Kernewood, Inc., 184 Md. 297, 40 A.2d 522 (Ct. *237 App.1945); Restatement (Third) of Property: Servitudes § 6.10, Comment a at 196 (stating that "[t]he power to amend the governing documents in a common-interest community prevents a small number of holdouts from blocking changes regarded by the majority to be necessary to adapt to changing circumstances and thereby permit the community to retain its vitality over time").
The trial court's judgment reflects that it considered the foregoing factors. The court first inquired whether the amendment was based on "a good, logical reason" or whether it appeared to be "arbitrary and capricious." Although Scott and Mary Miller and the Andersons take issue with the trial court's question, contending that it indicates that the court misconstrued the focus of the reasonableness inquiry, we conclude that the trial court's question was appropriate and that it is Scott and Mary Miller and the Andersons who have misconstrued the focus of the inquiry. See Armstrong v. Ledges Homeowners Ass'n, 360 N.C. at 559 n. 2, 633 S.E.2d at 87 n. 2, citing:
"Hutchens v. Bella Vista Vill. Prop. Owners' Ass'n, 82 Ark.App. 28, 37, 110 S.W.3d 325, 330 (2003) (concluding `the power of ... [a] homeowner's [sic] association... to make rules, regulations, or amendments to its declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory'); ... Buckingham v. Weston Vill. Homeowners Ass'n, 1997 ND 237, ¶ 10, 571 N.W.2d 842, 844 (A condominium association's amendment to the declaration or bylaws `must be reasonable' and `a rule which is unreasonable, arbitrary, or capricious is invalid.')."
(Emphasis added.)
The trial court determined that the amendment was not arbitrary and capricious but was based on a sound reason that the subdivision lots were not selling, that a reduction in the minimum square footage would potentially increase sales, and that, without the amendment, the value of the company's investments, as well as the houses owned by Scott and Mary Miller and the Andersons, would decline. The trial court properly considered the surrounding facts and circumstances attending the enactment of the amendment, including the real-estate market and the financial outlook for the future of the subdivision if the lots remained unsold. In this regard, we find the decision of the Maryland Supreme Court in Matthews v. Kernewood, Inc., supra, to be particularly instructive.
In Matthews, the subdivision was conceived in 1927 as an exclusive, upscale residential development with large lots and expensive houses. The developer reserved the right to waive or modify any of the restrictions. After 1929, the lots failed to sell. The developer's successor resubdivided the unsold lots into smaller parcels and modified the restriction as to minimum costs. The original lot owners sued the developer, arguing that the original plan had enhanced the value of all the lots in the subdivision, that they had purchased their lots in reliance on the general plan, and that the general plan could not be modified so as to destroy or impair the general plan. Holding that changed economic circumstances had made an alteration of the restrictions necessary to retain the vitality of the subdivision, the court stated:
"It is evident that the original plan was a subdivision of large lots with expensive houses and that the present change in the plan of lots permits less expensive properties. There is evidence offered which is certainly credible that at this time it is difficult to sell large lots which *238 call for the construction of large and expensive houses based on 1927 costs. Such property is not in demand.... It is also forcibly argued that unless such a resubdivision is made, the property may grow up in grass and weeds and may eventually be sold for taxes, which would certainly be more detrimental to the complainant than the plan now proposed."
184 Md. at 308, 40 A.2d at 527.
Similarly, in the present case the trial court inferred "that, if lots do not sell and houses are not built, then the value of Plaintiffs' investments would decline. Perhaps as much or more so than from the construction of smaller homes in the subdivision." That inference was supported by evidence indicating that, because the lots were not selling and the parties were having difficulty meeting their loan obligations to the mortgagee, they were attempting to cut costs by, among other things, reducing the maintenance and upkeep of the grounds. Scott Miller submitted photographic evidence depicting unweeded flower beds, unmown grass, and plants that were dying because the watering schedule in the subdivision had been reduced.
It was undisputed that Scott and Mary Miller were given proper notice of the time, place, and purpose of the property owners' meeting on March 20, 2007, at which the amendment was discussed and put to a vote. With regard to the manner in which the amendment was enacted, there was no impropriety; the procedure outlined in § E-8 of the governing document of the subdivision was followed.
At trial, Scott Miller acknowledged that the company's real-estate listing agent had, for some time, been advising the company to lower the square-footage requirement in order to increase sales. The evidence would support an inference that Scott Miller was not blind-sided by the vote on the amendment but was aware that it was imminent and chose not to attend the property owners' meeting. The trial court's judgment implicitly recognized what Comment a to the Restatement (Third) of Property: Servitudes § 6.10, states as the rationale for allowing a property owners' association to amend the governing documents in a common-interest community: to "prevent[] a small number of holdouts from blocking changes regarded by the majority to be necessary to adapt to changing circumstances and thereby permit the community to retain its vitality over time." Id. at 196. The trial court's application of the law concerning the reasonableness test to the facts was without error.
General Scheme or Plan of Development
The trial court's careful consideration and thorough discussion of the meaning of the phrase "general scheme or plan of development" is in accord with Alabama law. The Alabama Supreme Court has already indicated that an amendment reducing the square footage in a building-requirement restriction does not render the amendment inconsistent with the general scheme or plan of development of a residential subdivision. In Schmidt v. Ladner Construction Co., 370 So. 2d 970 (Ala.1979), the supreme court held that the documents governing the Carriage Hills subdivision in Mobile did not give the developer the right to unilaterally reduce the groundfloor area of a 1-story residence from 1,400 to 1,200 square feet. Discussing Schmidt in Wright, the supreme court stated that "the proposed modifications under scrutiny in [Schmidt] neither annulled, nor were inconsistent with, the general scheme or plan of development for the subdivision or its residential use purpose." 413 So.2d at 1121 (first emphasis added).
*239 The Alabama cases determining an amendment to be inconsistent with the general scheme or plan of development for a subdivision dealt with amendments that altered per se the exclusively residential nature and purpose of the subdivision. See Wright, supra (amendment allowing a convenience store in a residential subdivision); Moore v. Megginson, 416 So. 2d 993 (Ala.1982) (amendment permitting the construction of an industrial warehouse and maintenance facility in a residential subdivision).
The trial court's application of the law concerning the general-scheme-or-plan-of-development test to the facts was without error. The judgment of the Dale Circuit Court is affirmed.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, J., concur.
BRYAN and MOORE, JJ., concur in the result, without writings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568859/ | 48 F.2d 93 (1931)
UNITED STATES ex rel. GROSSBERG
v.
MULLIGAN, Acting U. S. Marshal.
No. 311.
Circuit Court of Appeals, Second Circuit.
April 6, 1931.
David P. Siegel, of New York City (Leo H. Klugherz and Milton B. Seasonwein, both of New York City, of counsel), for petitioner-appellant.
George Z. Medalie, U. S. Atty., of New York City (Ellamarye Failor, Asst. U. S. Atty., of New York City, of counsel), for respondent-appellee.
Before L. HAND, CHASE, and MACK, Circuit Judges.
MACK, Circuit Judge.
Relator pleaded guilty to a mail fraud indictment after a jury had acquitted his codefendant and disagreed as to his guilt; thereupon he was ordered placed on probation for two years. By the express terms of the order, he was directed to report once in each month to the probation officer; what he was to report and how he was to act under probation were not specified in the order. The judge, however, gave him verbal instructions as to his conduct, and the probation officer, pursuant to the Probation Act § 4 (title 18, U. S. Code, § 727 [18 USCA § 727]), furnished him with a written statement of the conditions of probation and gave him further written instructions as to his conduct.
Some months later, on the receipt of complaints that relator was committing acts similar to those for which he had been tried, the probation officer filed an application for revocation of the probation and imposition of sentence. Relator was duly notified of the fact and the substance of the application. A full hearing was had before the judge who had tried the case. Relator testified in his own behalf. The judge, after stating that he *94 had given some terms of probation verbally and that these had been broken, imposed a sentence of imprisonment for a year and a day. Appeal therefrom was dismissed for failure to file the record in proper time.
Thereupon a writ of habeas corpus was sued out. This writ was dismissed on the ground that the question of jurisdiction to revoke the probation had been raised and decided adversely to relator in the revocation proceedings. The cause is before us on an appeal from the order dismissing the writ.
Relator asserts lack of jurisdiction to sentence him, on his contention that under the Probation Act § 1 (18 USCA § 724), jurisdiction to revoke probation and impose sentence is dependent upon allegation and proof that some term or condition expressed in the probation order has been broken, and that there was neither allegation nor proof of a breach of the only express condition, to report monthly to the probation officer.
Ex parte United States, 242 U.S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, held that, at common law, sentence must be imposed and could not be permanently suspended after conviction or plea of guilty, and that, on application of the government, the District Judge could be mandamused to impose sentence. By the Probation Act § 1 (18 USCA § 724), however, the courts are given the power "to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best." They may "revoke or modify any condition of probation"; the term of probation, however, may not exceed five years. By Probation Act § 2 (18 USCA § 725), the defendant may be brought before the court for sentence not only within the probation period, but even thereafter; the only limitation is that it be within the maximum period for which sentence could have been imposed. The court may thereupon "revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed."
We express no opinion on a defendant's right, in order to forestall the risk of the imposition of sentence in the distant future, to waive suspension and probation and to demand an immediate sentence. If relator had such a right, he waived it by expressly consenting to probation and suspension. It is unnecessary, too, to determine whether under the act the court may suspend sentence without any order of probation in view of its power by the express provisions of section 725 to revoke suspension and impose sentence after the probation period has ended; in this case, there was a probation order. The court therefore clearly had jurisdiction of relator and of the subject-matter of the revocation of his probation and the imposition of sentence.
The act itself has no express restrictions on the power to revoke the probation or to modify the terms, conditions, or time thereof. These are matters for the exercise of a sound judicial discretion. The remedy for an abuse of such discretion or for other irregularities or errors in the exercise of the jurisdiction is solely by appeal, not by writ of habeas corpus. Craig v. Hecht, 263 U.S. 255, 44 S. Ct. 103, 68 L. Ed. 293.
However desirable it may be that at least the general terms of the probation be expressed in the order, nevertheless, in the absence of a statutory requirement and in view of the fact that the suspension of sentence may continue even after the probation period is ended, we cannot deem the insertion of the terms and conditions of probation in the order as requisite to its validity or as a jurisdictional prerequisite to the revocation of probation. We concur in the conclusion reached in this respect in Hollandsworth v. U. S. (C. C. A.) 34 F.(2d) 423. See, too, Campbell v. Aderhold (D. C.) 36 F.(2d) 366. Such, too, has been the construction of analogous provisions in state acts. See Commonwealth v. McGovern, 183 Mass. 238, 66 N.E. 805; Finer v. Commonwealth, 250 Mass. 493, 146 N.E. 23; People ex rel. Valiant v. Patton, 221 N.Y. 409, 117 N.E. 614.
Viewed in another aspect, jurisdiction in the present case was clear. At least one condition was expressly stated in the order; relator was to report monthly to the probation officer. While the application for revocation was not based upon a mere failure to report, but upon the charge that relator was continuing in his former course of conduct contrary to the verbal terms of probation imposed by the court, nevertheless in substance and effect the jurisdiction of the court was invoked to interpret the probation order. Although not in terms so stated, what the court actually did was to construe the word "report" in the light of all of the surrounding circumstances including the verbal instructions. On writ of habeas corpus its conclusions as to the proper interpretation of the order are not reviewable.
The order dismissing the writ of habeas corpus must therefore be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568877/ | 48 F.2d 166 (1931)
PARIDY
v.
CATERPILLAR TRACTOR CO.
No. 4404.
Circuit Court of Appeals, Seventh Circuit.
March 26, 1931.
Edward W. Tobin and Edward E. Longan, both of St. Louis, Mo., for appellant.
Frank T. Miller, John M. Elliott, O. P. Westervelt, and Val C. Guenther, all of Peoria, Ill., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
SPARKS, Circuit Judge.
This action was instituted on December 4, 1929, for the purpose of establishing a constructive trust against property in the hands of appellee. The action arises out of alleged fraud and wrongdoing of appellee's privies in fraudulently obtaining from appellant information, plans, and a model of an endless track mechanism of which appellant claims to have been the original and sole inventor.
The bill alleges that appellant conceived his claimed invention in June, 1892; that thereupon he drafted plans and constructed a small model thereof, which he retained in his possession and exhibited only in secrecy and confidence to those whose financial assistance he sought for the purpose of securing a patent. On account of sickness and financial distress, he was unable to pay the necessary *167 expense of securing a patent, and was unsuccessful in procuring the assistance of others. This condition prevailed until January, 1899, when two men, unknown to appellant, and who gave fictitious names, proposed to him that if he could demonstrate to them the successful operation of his invention they would furnish the necessary financial assistance to enable him to secure a patent and to develop and market the invention. Appellant permitted these men to make a sketch of his invention, and he delivered his model to them. He never saw or heard from them again until January, 1918, although he made diligent effort to do so. At the time last mentioned he learned for the first time that the names of the men so defrauding him were Benjamin Holt and Alvin O. Lombard, and that they had appropriated the invention to their own use and had applied for patents thereon, in their own respective names, on the following dates: Alvin O. Lombard, May 21, 1901, and May 21, 1907; Benjamin Holt, December 17, 1907, January 4, 1910, March 15, 1910, and April 5, 1910; and that patents were thereupon issued to them. Of these facts appellant had no knowledge until January, 1918, and he had unsuccessfully continued his efforts to enlist financial assistance of others to enable him to secure a patent on his invention.
The bill further charges that after Holt and Lombard had thus acquired the invention, Holt became the principal stockholder and president of Holt Manufacturing Company, which company, with knowledge of all the facts above set forth, began to use appellant's invention in the manufacture and sale of tractors, harvesters, and other machinery; that later Holt Manufacturing Company was acquired by appellee, Caterpillar Tractor Company, and both companies, with knowledge of all the facts above set forth, continued to wrongfully and illegally use appellant's invention in the manufacture of their products up to April 5, 1927, which was the expiration date of the letters patent issued to Holt and Lombard; that as a result thereof Caterpillar Tractor Company received and now holds great gains, profits, and property, which, it is claimed, are impressed with a constructive trust ex maleficio in favor of appellant.
The bill further alleges that immediately after discovering the identity of Holt and Lombard as the parties who had surreptitiously and fraudulently obtained knowledge of his invention and had wrongfully and fraudulently appropriated the same to their own use and benefit, appellant retained one John C. Higdon, now deceased, a member of the bar of the state of Missouri, residing in St. Louis and specializing in the practice of patent law for a great number of years, and in whom he had implicit confidence as to ability, as his attorney to prepare and prosecute the necessary proceedings for the recognition, enforcement, and protection of his rights; that Higdon was then seriously ill, suffering from a stroke of paralysis, and mentally disturbed, and because of illness and disturbed mental condition disregarded instructions and directions of appellant in filing an erroneous action, in the nature of a patent infringement suit, against the appellee et al., and failed to diligently and properly prosecute such erroneous action; that appellant was not aware of the error of his then counsel until after Higdon's death, when he retained new counsel and was advised of the error of Higdon in filing such suit; that since the disposition of such erroneous suit appellant has been endeavoring to enlist sufficient financial assistance to enable him to proceed with this cause of action, in which endeavor he was successful shortly prior to the filing of the instant bill.
In answer to the bill appellee filed its motion to dismiss on the grounds that appellant had previously brought a like action against Holt Manufacturing Company in the same court in which the instant case was tried; that appellee was by stipulation made a defendant in that suit, as the assignee of Holt Manufacturing Company; and that action has been prosecuted and defended to a final decree on its merits, which decree was affirmed by the Circuit Court of Appeals, 24 F.(2d) 1020, and a certiorari denied by the United States Supreme Court, 278 U.S. 617, 49 S. Ct. 21, 73 L. Ed. 540; that the instant bill alleges the same facts in support of the present action as were set forth and relied upon in the prior suit; that the prior decree finds that appellant has no claim whatever against appellee or any one acting for it or in its behalf, and is a bar to further litigation on this matter; that the instant bill shows upon its face appellant's gross laches; that neither appellant's poor health, nor his financial distress, nor his unfortunate choice of counsel, excuses or justifies his delays; and that appellant's allegations of conspiracy, and knowledge thereof on the part of appellee, are not based upon alleged facts, but upon conclusions of the pleader.
The decree in the former suit was, by reference, made a part of appellee's motion to dismiss, but we assume it was not attached to the bill as it does not appear in the record *168 before us. Appellant thereupon filed a motion to strike from the motion to dismiss all those portions, separately, which relate to the prior suit. These motions were argued before the trial court but no evidence was introduced, and subsequently the court overruled appellant's motion to strike and sustained appellee's motion to dismiss the bill. It is upon these rulings that appellant seeks a reversal.
Equity Rule 29 (28 USCA § 723), in so far as it applies to motions to dismiss, is as follows:
"Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. * * * If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered."
Appellee concedes this to be a correct general statement of the law, but seeks to parry the force of it when applied to the instant case because of the fact that appellant has in his bill referred to the prior case which was tried in the District Court, using only such portions of the record as are helpful to him in the present action, and alleges that this fact is sufficient to authorize appellee to include in its motion to dismiss the complete decree of the prior suit, by virtue of which appellee claims that the controversy in the instant case has been formerly adjudicated. In support of this proposition appellee cites no authority, nor have we been able to find any. There is no ambiguity in the language of Equity Rule 29, and it in effect says that only issues of law arising upon the face of the bill of complaint can be reached by motion to dismiss, and only three instances are specifically mentioned where such motion is proper, viz., for misjoinder, for nonjoinder, and for insufficiency of fact to constitute a valid cause in equity. It has been held, however, that if laches or res adjudicata is apparent on the face of the bill, such matters respectively are properly raised by a motion to dismiss the bill. McMullen v. Lewis (C. C. A.) 32 F.(2d) 481; Young v. Southern Pac. Co. (C. C. A.) 34 F.(2d) 135. In such instances the facts pleaded are insufficient to constitute a cause of action. These facts are to be judged as they appear in the bill, and we have found no case in which the effect of such facts has been permitted to be altered by any averments in the motion. We can see no reason why the mere mention in the bill of certain facts pertaining to the prior suit, but not harmful to appellant, could in any way authorize appellee to insert in his motion to dismiss a complete statement of the facts in relation to the prior suit in order to raise the question of res adjudicata. Such a procedure would in effect change the issue from a question of law to one of fact and law, which is not regarded as a function of a motion to dismiss under Equity Rule 29.
It is contended, however, by appellee, that, inasmuch as a court of record will take judicial knowledge of its former decrees, the District Court was justified in considering the entire decree of the prior suit in passing on the motion to dismiss. We think this position is not tenable. We have been unable to find any authority supporting it, and none has been cited by counsel.
It is true that a court will take notice of its own records, but it cannot travel for this purpose out of the record relating to the particular case; it cannot take notice of the proceedings in another case, even between the same parties and in the same court, unless such proceedings are put in evidence. Matthews v. Matthews, 112 Md. 582, 77 A. 249, 29 L. R. A. (N. S.) 905; Murphy v. Citizens' Bank, 82 Ark. 131, 100 S.W. 894, 11 L. R. A. (N. S.) 616, 12 Ann. Cas. 535; Haaren v. Mould, 144 Iowa 296, 122 N.W. 921, 24 L. R. A. (N. S.) 404; Oliver v. Enriquez, 16 N. M. 322, 117 P. 844, Ann. Cas. 1913A, 140; Elgin v. Gross-Kelly & Co., 20 N. M. 450, 150 P. 922, L. R. A. 1916A, 711; Myers v. State, 46 Ohio St. 473, 22 N.E. 43, 15 Am. St. Rep. 638; State ex rel. Gibson et al. v. Richardson, 48 Or. 309, 85 P. 225, 8 L. R. A. (N. S.) 362; Pickens v. Coal River Boom & Timber Co., 66 W. Va. 10, 65 S.E. 865, 24 L. R. A. (N. S.) 354, notes 89 Am. Dec. 689. In absence of evidence to that effect, the reviewing court cannot take judicial notice that a case before the court had connection with one formerly decided by it. Elgin v. Gross-Kelly & Co., 20 N. M. 450, 150 P. 922, L. R. A. 1916A, 711.
While a court will invariably take judicial knowledge of the facts which it has acquired at a prior hearing of a cause (Murphy *169 v. Citizens' Bank, supra and in that case it was the same cause which was referred to), only under exceptional circumstances will it notice proceedings in another cause, although tried in that court and between the same parties. 15 Rawle C. L. p. 1111, § 42, and cases heretofore cited. The exceptional cases referred to are such as a proceeding for contempt in violating a prior decree, or a proceeding in garnishment in aid of a prior judgment; but in none of the decisions above referred to were these exceptional cases before the court.
The reason for the rule above referred to is that the decision of a cause must depend upon the evidence introduced. If the courts should recognize judicially facts adjudicated in another case, it makes those facts, though unsupported by evidence in the case in hand, conclusive against the opposing party; while if they had been properly introduced they might have been met and overcome by him. So, on a plea of res adjudicata, a court cannot judicially notice that the matters in issue are the same as those in a former suit. Such matters must be pleaded and proved. 15 Rawle C. L. p. 1111, § 42.
Appellee contends that such a holding in effect will require it to submit to another long drawn out, expensive series of hearings and will seriously impose upon the court's time. This indeed would be deplorable if true, but a part of Equity Rule 29 which we have not quoted provides that "Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court." The rule provides a most expeditious way of disposing of this issue, i. e., by answer; but appellee chose rather to present it by motion to dismiss and relied upon the court's judicial knowledge in lieu of evidence, and we think this cannot be done under the facts of this case, for the instant and prior cases cannot be considered the same even though one issue is present in both.
Appellee insists that its motion to dismiss was properly sustained on account of laches of appellant apparent on the face of the bill. The doctrine of laches does not apply in such a case as presented here, where appellee, by its motion, admits all the fraud charged, and has acted in open and known hostility to appellant's alleged rights, and has been misled by no apparent acquiescence on appellant's part. In the case of Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 21 S. Ct. 7, 15, 45 L. Ed. 60, the court said: "Indeed, in a case of an active and continuing fraud * * * we should be satisfied with no evidence of laches that did not amount to proof of assent or acquiescence."
Our disposition of the appeal is on the hypothesis that the allegations of the bill are true, and that the facts referred to in the motion to dismiss are not before the court.
The decree of dismissal is reversed, with direction to the District Court to overrule appellee's motion to dismiss. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568854/ | 308 F. Supp. 847 (1970)
Guy B. ASHER, Plaintiff,
v.
RELIANCE INSURANCE COMPANY, a corporation, Defendant.
Civ. No. 52294.
United States District Court, N. D. California.
February 3, 1970.
*848 *849 Ernest M. Thayer, San Francisco, Cal., for plaintiff.
Thornton & Taylor, San Francisco, Cal., for defendant.
Memorandum of Decision
GERALD S. LEVIN, District Judge.
This action arises from a complaint for fraud, breach of contract and the declaration of a constructive trust, all of which pertain to a contract of insurance between plaintiff and defendant.
Plaintiff, a citizen of California, alleges that he negotiated with defendant to secure fire insurance for premises in Juneau, Alaska, owned and operated by plaintiff. Plaintiff accepted defendant's offer to insure the named premises against loss by fire up to the amount of $14,000.00 in return for payment by plaintiff of an annual premium of $78.00.
On or about June 21, 1968, a fire occurred on the insured premises and has since resulted in a financial loss to plaintiff in an amount alleged to be in excess of $14,000.00. Plaintiff alleges that he thereafter submitted a claim to defendant for such loss, to which defendant delayed action but repeatedly promised to make payment to plaintiff toward such loss. Plaintiff further alleges that finally, and for the first time, on September 3, 1969, defendant refused to honor any portion of plaintiff's claim. On September 24, 1969, plaintiff filed this complaint.
Plaintiff contends that his complaint states the following causes of action: an action for fraud, in that defendant never intended to insure plaintiff in the amount of $14,000.00 and thus misled plaintiff into signing a contract of insurance therefor; an action for breach *850 of contract; and an action declaring defendant involuntary trustee of a constructive trust in plaintiff's favor consisting of the premium paid by plaintiff and the interest thereon.
Defendant now moves to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure and to strike certain portions of the complaint as redundant, sham, or irrelevant pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.
DISCUSSION
It appears from the papers on file herein that the sufficiency of plaintiff's claim for relief is to be governed by the law of Alaska, that being the place where the contract of insurance was issued. National Life and Accident Insurance Co. v. Gorey, 249 F.2d 388, 392-393 (9th Cir. 1957). Cf. Christian v. Preferred Acc. Ins. Co., 89 F. Supp. 888, 890 (N.D. Cal. 1950). Because of a paucity of Alaska law on several of the issues under consideration here, the law of the forum, California, will be referred to whenever an issue is not otherwise determinable under Alaska law.[1]
I. Motion to Dismiss
A. First Cause of Action
Defendant contends that plaintiff's first cause of action sounds in contract (for breach) rather than in tort (for fraud) as plaintiff claims, and that as a result plaintiff's prayer for punitive, consequential, and mental suffering damages is defective.
Even if plaintiff's first cause of action sounded solely in contract and not tort, nonetheless the court would be obliged to deny defendant's motion to dismiss with regard thereto. That certain elements or forms of relief might be unavailable under a stated cause of action does not render that cause of action susceptible to a motion to dismiss. A complaint is not to be dismissed 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. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966). Since even under a cause of action sounding solely in contract the plaintiff herein would be entitled to some relief such as compensatory damages defendant's motion to dismiss could be denied on this ground alone.
We think it manifest, however, that plaintiff's first cause of action, if his allegations are accepted as true, sounds in tort rather than contract. The tort alleged is fraud in the inducement of the insurance contract. Whether or not plaintiff can prove this allegation must await further proceedings and is not to be decided at this preliminary stage on a motion to dismiss.
Defendant relies on Reichert v. General Insurance Company of America, 68 Cal. 2d 822, 69 Cal. Rptr. 321, 442 P.2d 377 (1968) as a factually similar case calling for the conclusion that the claim being pleaded here is essentially one for breach of contract. Reichert involved an action by an insured against several insurers for damage allegedly resulting from the insurers' failure to promptly indemnify the insured for losses suffered by reason of fire damage. Previously, the insured had purchased a motel already insured against loss by fire up to a stipulated amount under policies issued by the defendant insurers. A fire occurred at the motel thereafter, but the insurers would not indemnify the insured and so the insured came under substantial financial pressure from his creditors. The insured was finally *851 forced into involuntary bankruptcy and it was this "consequential" damage for which he sought recovery in his suit against the insurers.
The main issue decided by the court sitting en banc in Reichert was whether the insured had standing to maintain suit against the insurers for failure to promptly settle his claim or whether such action had passed instead to the trustee in bankruptcy. A divided court finally disposed of the matter[2] by holding that the action had passed to the trustee and could not be maintained by the insured.
Although the plaintiff in Reichert had alleged that the defendant insurers had "oppressively" and in "bad faith" failed to settle his claim, the court considered the claimed liability to be contractual in nature. The distinction between Reichert and the case before us is this: in Reichert the amended complaint before the court contained allegations referring only to the contracts of insurance and the breaches thereof; misrepresentation had been pleaded in earlier amended complaint, but had been deleted in the subsequent amended complaint before the court. In the case before us, misrepresentation in the procurement of the contract of insurance has been specifically pleaded. The court in Reichert did not hold that no action in fraud could be maintained on the facts presented there, but only that the plaintiff had not stated an action therefor.
The timing of the alleged wrongs also distinguishes Reichert from the case before us. In Reichert, the wrong was alleged to have occurred upon the defendant insurers' failure to settle plaintiff's claim after losses suffered because of the fire. In the present case, however, the first cause of action alleges the wrong to be fraud in the procurement of the contract of insurance itself rather than a failure of the defendant to settle under the contract.
B. Second Cause of Action
Defendant argues that plaintiff's second cause of action, for breach of contract, is defective in that punitive, consequential, and mental suffering damages are prayed for, but that none of these are allowable in an action sounding solely in contract.
Again, the answer is that even were all these items of damage impermissible forms of recovery, the motion to dismiss would have to be denied because some form of relief, such as compensatory damages, would certainly be available to remedy a breach of contract.
Contracts of insurance are, of course, to be judged by the same legal principles as any other contract.[3] Ness v. National Indemnity Company of Nebraska, 247 F. Supp. 944, 947-948 (D. Alaska 1965). Alaska follows the generally accepted rule governing damages when a breach of contract, without more, is alleged: the injured party is to be put in as good a position as he would have been had the contract been fully performed. Anchorage Cen. D. Co. v. Van Wormer & Rodrigues, Inc., 443 P.2d 596, 599 (Alaska 1968); Green v. Koslosky, 384 P.2d 951, 952 (Alaska 1963). The measure of damages is that amount which will compensate the party aggrieved for all the detriment proximately caused by the defendant, or which, in the ordinary course of things, would be likely to result therefrom. Cal.Civ. Code, § 3300; Coughlin v. Blair, 41 Cal. 2d 587, 603, 262 P.2d 305 (1953).
Where a breach of contract only is involved, punitive damages are *852 not recoverable,[4] Cal.Civ.Code, § 3294; Crogan v. Metz, 47 Cal. 2d 398, 405, 303 P.2d 1029 (1956); Baumgarten v. Alliance Assur. Co., 159 F. 275, 277-278 (N.D. Cal. 1908); nor, generally, are damages for mental suffering, 11 Williston on Contracts § 1341, at 214 (3d ed. 1968).
The claimed consequential damage may be recoverable, however, if such damage were "proximately caused" by or "flowed naturally and expectedly" from the defendant's breach. Thus plaintiff's claimed loss of rents, if that kind of damage which was within the contemplation of the parties at the time the contract of insurance was entered into, could be recoverable in an action based solely on breach of contract. See Overstreet v. Merritt, 186 Cal. 494, 502, 505, 200 P. 11 (1921); Kline v. Guaranty Oil Co., 167 Cal. 476, 483, 140 P. 1 (1914); Mack v. Hugh W. Comstock Associates, 225 Cal. App. 2d 583, 587, 37 Cal. Rptr. 466 (1964); 28 Cal.Jur.2d § 613, at 388. See also Theodore v. Zurich General Accident & Liabil. Ins. Co., 364 P.2d 51, 56 (Alaska 1961).[5]
C. Third Cause of Action
Defendant contends that plaintiff's third cause of action, which seeks to impose a constructive trust on defendant in the amount of the insurance premium paid to it plus interest thereon, is defective because a constructive trust cannot be imposed in an action to recover for breach of contract.
Defendant cites no authority whatsoever for this contention nor do we find any to support defendant. A constructive trust is a creature of equity, imposed by the law on a party to prevent his benefiting by that which he has wrongfully obtained or detained. Thus the law decrees that one who acquires property of another by fraud holds that property as an involuntary trustee for the other. Cal.Civ.Code §§ 2223, 2224; 49 Cal.Jur.2d § 476, at 221-222, § 383, at 228. Cf. Thomson v. Wheeler Construction Company, 385 P.2d 111, 114 (Alaska 1963).
The plaintiff having alleged fraud in the defendant's collection of his premium, there is a sufficient basis on which a court could construct a trust in plaintiff's favor were plaintiff able to prove his allegations.
D. Policy Time Limitation
Defendant also moves to dismiss the complaint in that it states an action for breach of contract only and is therefore time-barred because not "commenced within 12 months next after the fire", a limitation purportedly contained in the policy of insurance.[6]
No matter how viewed, defendant's contention here must fail. First, it is apparent from the foregoing discussion that the complaint does not sound in *853 contract alone. Insofar as fraud is alleged, the time limitation contained in the policy would not affect plaintiff's right to recover under a theory of fraudulent misrepresentation. The relevant statute of limitations would be that governing fraud, and even that would normally be tolled until the plaintiff had discovered the fraud or, in the exercise of reasonable diligence, should have discovered it.
Second, the fact of defendant's procrastination alleged in the complaint is sufficient to raise a possible defense of estoppel against defendant's relying on the insurance policy's time limitation to deny recovery to the plaintiff here.
While it is true that Alaska law recognizes the validity of a contractual provision reasonably limiting the time within which suit may be brought, Sauer v. Law, Union & Rock Insurance Co., 15 Alaska 77, 79, 17 F.R.D. 430 (D. Alaska 1954), Alaska law also recognizes the accompanying salubrious principle of estoppel against inequitable reliance upon a statute or provision of limitations. Groseth v. Ness, 421 P.2d 624, 630 (Alaska 1966); Sauer, supra, at 80, 17 F.R.D. 430.[7]
The purpose of a policy time limitation on suit, like a conventional statute of limitations, is to promote justice by preventing surprise through the revival of slumbering claims which may be difficult of proof. Olds v. General Acc. Fire Etc. Corp., 67 Cal. App. 2d 812, 817, 155 P.2d 676 (1945). Therefore, failures on technical grounds which bear no substantial relationship to an insurer's risk are disfavored. Cal. Comp. & Fire Co. v. Ind. Acc. Com., 62 Cal. 2d 532, 535, 42 Cal. Rptr. 845, 399 P.2d 381 (1965); Bollinger v. National Fire Ins. Co., 25 Cal. 2d 399, 405, 154 P.2d 399 (1944); Olds, supra, at 818, 155 P.2d 676.
Where, as here, the plaintiff's delay in filing suit is induced by the defendant's conduct, the defendant cannot avail himself of the defense of a policy time limitation on suit. Morgan v. International Aviation Underwriters, Inc., 250 Cal. App. 2d 176, 180-181, 58 Cal. Rptr. 164 (1967); Van Hook v. So. Cal. Waters Alliance, 158 Cal. App. 2d 556, 568-569, 323 P.2d 212 (1958); 6 Williston on Contracts § 2016, at 5666 (Rev. ed. 1962).[8]
Nor is the plaintiff barred by laches, since he alleges that he did file his claim within a reasonable period (21 days) next after discovering that the defendant, despite repeated earlier assurances, did not intend to settle plaintiff's claim amicably. See Williams v. Marshall, 37 Cal. 2d 445, 456, 235 P.2d 372 (1951).
II. Motion to Strike
A. Damages Prayed for under the First Cause of Action
Defendant moves to strike from the complaint plaintiff's allegations that he is entitled to the rental value of the insured premises, damages for mental suffering, punitive or exemplary damages, and other such sums in damages as may later be ascertained by plaintiff and included by amendment. Following the discussion above, it is clear that each of these is a permissible item of damages under plaintiff's cause of action alleging fraudulent misrepresentation.
Although the plaintiff has the burden of proof in showing every element *854 necessary to establish fraud, Larson v. Hugill, 15 Alaska 348, 356 (D. Alaska 1954), once he has done this he may recover damages if he shows the detriment suffered thereby. Harlow v. American Equitable Assur. Co., 87 Cal. App. 28, 31-32, 261 P. 499 (1927). See Cal.Civ.Code, §§ 1709, 3333.
Consequential damage, including loss of rents, is recoverable by a party who acts in reliance on the other party's misrepresentations. See Wright v. Rogers, 172 Cal. App. 2d 349, 365, 342 P.2d 447 (1959); 23 Cal.Jur.2d § 90, at 229.
Because the action sounds in tort, damages for mental suffering are recoverable, even though a contract is involved. Crisci v. Security Ins. Co., 66 Cal. 2d 425 passim, 58 Cal. Rptr. 13, 426 P.2d 173 (1967).
Fraud is also an adequate ground for awarding punitive damages. Thompson v. Modern School of Business and Correspondence, 183 Cal. 112, 121, 190 P. 451 (1920); Horn v. Guaranty Chevrolet Motors, 270 Adv.Cal.App.2d 509, 516, 75 Cal. Rptr. 871 (1969); Oakes v. McCarthy Co., 267 Cal. App. 2d 231, 263, 73 Cal. Rptr. 127 (1968). That the fraud complained of incidentally involves a contract does not make the recovery of exemplary damages improper. Southern Cal. Disinfecting Co. v. Lomkin, 183 Cal. App. 2d 431, 451, 7 Cal. Rptr. 43 (1960). See also Chelini, supra, at 487, 196 P.2d 915.
B. Second and Third Causes of Action as Redundant
Defendant also moves to strike the second cause of action as redundant of the first cause and to strike the third cause of action as redundant of the other two causes. For the reasons stated above, each cause of action states a separate and good cause of action upon which relief could be granted, so defendant's motions to strike must be denied with respect thereto.
CONCLUSION
For the reasons given above, it is the opinion of this court that,
(1) The complaint states good causes of action in all its particulars and is not time-barred, therefore defendant's motion to dismiss is denied;
(2) The complaint is sufficient in its allegations and prayer, therefore defendant's motion to strike is denied in all particulars,
And it is so ordered.
NOTES
[1] Defendant's counsel has expressed its inability to find a sufficient body of Alaska law on the matters under consideration and has therefore turned to the law of California which it deems, if anything, to be more liberal and thus in plaintiff's favor. Plaintiff's counsel has not demurred to this suggestion and it, too, has argued wholly on the basis of California law.
[2] This was the third in a series of cases involving the same parties and the same issues which were argued before the California Supreme Court. Both the earlier decisions, Cal.App., 53 Cal. Rptr. 693 (1966) and 59 Cal. Rptr. 724, 428 P.2d 860 (1967) were vacated by this third decision.
[3] If anything, insurance companies are held to broader legal responsibility than are private contracting parties. Stark v. Pioneer Casualty Co., 139 Cal. App. 577, 580, 34 P.2d 731 (1934).
[4] There is an exception to this rule where the gravamen of the action is not breach of contract, but is rather the fraud inherent in the breach. Brockway v. Heilman, 250 Cal. App. 2d 807, 812, 58 Cal. Rptr. 772 (1967). See also Chelini v. Nieri, 32 Cal. 2d 480, 486-487, 196 P.2d 915 (1948); Wetherbee v. United Insurance Co. of America, 265 Cal. App. 2d 921, 929, 71 Cal. Rptr. 764 (1968); 84 A.L.R. 1345, 1350, Anno.: Punitive Damages for Breach of Contract.
[5] The language in Nester v. Western Union Telegraph Co., 25 F. Supp. 478, 480 (S.D.Cal.1938) is instructive here:
There are exceptions to the rule [limiting damages for breach of contract to those within the contemplation of the parties at the time the contract was entered into]. When a special purpose sought to be achieved is known to the other party, recovery may be had for an unexpected loss. [Cases cited.] Again, one who breaches his contract in bad faith is liable for all damages traceable to the breach, including those which could not have been foreseen at the time the contract was made. [Cases cited.]
[6] Because the insurance policy in question has been neither pleaded in haec verba nor attached and incorporated by reference by either party, the only evidence before the court of the policy time limitation against suit appears in the affidavit of counsel for defendant.
[7] Although the court in Sauer upheld the contractual period of limitation against suit in question there against the plaintiff's claim of waiver or estoppel, it did so because of the weakness of the plaintiff's assertion, and not because such defense would be barred as a matter of law. In Sauer, unlike the present case, the defendant insurer unqualifiedly denied that its agents or adjusters had represented to the plaintiff that his claim would be amicably settled without suit, the assertions upon which the plaintiff had based his claimed defense.
[8] See also Saperston v. American & Foreign Ins. Co., 142 Misc. 730, 255 N.Y.S. 405, 407 (Sup.Ct.1932). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568931/ | 48 F.2d 926 (1931)
In re WELLMAN.
Patent Appeal No. 2682.
Court of Customs and Patent Appeals.
April 22, 1931.
Roberts, Cushman & Woodberry, of Boston, Mass. (Arlon V. Cushman, of Washington, D. C., and Robert Cushman and Robert C. Child, both of Boston, Mass., of counsel), for appellant.
T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
GRAHAM, Presiding Judge.
The appellant filed an application for patent on improvements in lined receptacles, and the art of making the same. Twenty-three claims were filed, claims 1 to 11 being for a process, and claims 12 to 23 being for a product. The Examiner cited certain references as bearing upon the subject-matter of the method claims, and required a division between the process and product claims. Thereupon, under rule 41 of the United States Patent Office, the appellant elected to prosecute his process claims, 1 to 11, inclusive, and to retain the remaining claims in the case with the privilege of appealing from the requirement of division after final action by the Examiner on the group of claims prosecuted, as was provided by said rule. Thereafter, the Examiner allowed claims 1 to 11, inclusive, and the matter was taken to the Board of Appeals as to the correctness of the order for division.
The Examiner held, in effect, that the product claims described an article which might be made by some other process than that described in the process claims, and that, therefore, different inventions were involved in the process and product claims. In this connection the Examiner suggested that the box could be made by using a separate mandrel for the lining and for the cover.
The inventor Wellman filed an affidavit in the Patent Office, under rule 138 of the Rules of Practice of said office, in which affidavit the affiant states, in effect, that in a commercial way the making of containers, such as is involved in his product claims, is impracticable if the work is done by hand, and that speed and machine operations are required. He further states: "I do not know how to proceed to make by hand or machine a receptacle corresponding to claim 14, for instance, without practicing the manipulative steps of the method of one or more of claims 1 to 11." He further states that, if there is any other way of making his product except by the method described in his application, he is not informed of what it is. He adds: "Nevertheless many different machines might be resorted to to practice my new method or make my new product."
The Board of Appeals of the United States Patent Office affirmed the action of the Examiner in requiring division. In its decision the Board mentioned the fact that the requirement of division should be affirmed in order to preserve the Office classification, and this holding of the Board is complained of by appellant in this case. However, the Board did not base its decision upon this matter, but held that the product might be made by other processes than those described in claims 1 to 11 of appellant's claims, and that, therefore, the division was properly required.
Claims 1 and 12 are given as typical of the two classes of claims involved:
"1. Art of making lined receptacles comprising wrapping and fastening together about a mandrel or form a blank for a lining of suitable material to make a bag; making a box to support and protect the bag in use by bending and sealing a blank of suitable stiff material on and about the bag and mandrel; and thereafter removing the bag and box from the mandrel."
"12. Packaging, storing or shipping receptacle comprising a lining continuous except for a sealed overlapped seam, and a stiff cover having an overlapped seam, the cover seam and lining seam respectively lying in contact with an integrally continuous area of said lining and cover."
Rule 41 of the Rules of the United States Patent Office originally provided as follows:
*927 "41. Two or more independent inventions cannot be claimed in one application; but where several distinct inventions are dependent upon each other and mutually contribute to produce a single result, they may be claimed in one application.
"Claims for a machine and its product must be presented in separate applications.
"Claims for a machine and the process in the performance of which the machine is used must be presented in separate applications.
"Claims for a process and its product may be presented in the same application."
In Steinmetz v. Allen, 192 U.S. 543, 24 S. Ct. 416, 422, 48 L. Ed. 555, this rule came to the attention of the Supreme Court and was found to be invalid.
The court, in passing upon the particular matter involved in that case, quoted from Robinson on Patents, vol. II, § 473, to the effect that a process cannot be "joined with the apparatus that performs it, nor either of these with the product in which they result, unless they are to such an extent inseparable that the existence of some one of them is dependent upon that of the others." The court gave expression to the view that the Patent Office was vested with a discretion in requiring divisions, but that such discretion was not unlimited and was reviewable. The court further quoted, with approval from James v. Campbell, 104 U.S. 356, 26 L. Ed. 786, the following language: "Where a new process produces a new substance, the invention of the process is the same as the invention of the substance, and a patent for the one may be reissued so as to include both, as was done in the case of Goodyear's vulcanized rubber patent. But a process, and a machine for applying the process are not necessarily one and the same invention." Other authorities to the same effect as Steinmetz v. Allen, supra, are Mosler Safe & Lock Co. v. Mosler, B. & Co., 127 U.S. 354, 361, 8 S. Ct. 1148, 32 L. Ed. 182; In re Hawkins, 57 Ohio App. D. C. 262, 20 F.(2d) 278; Wirebounds Patents Co. v. Saranac, etc. (C. C. A.) 37 F.(2d) 830; In re Isherwood, 46 Ohio App. D. C. 507; In re Butler, 37 F.(2d) 623, 17 Cow. C. P. A. 810.
In Union Paper-Bag Mach. Co. v. Waterbury et al. (C. C.) 39 F. 389, an applicant filed certain claims for a reissue. In his original application, the applicant filed claims for a paper bag of a certain kind, irrespective of the process of making the same; these were rejected on the prior art by the Office, and the applicant amended his application by inserting process claims which went to patent. On his application for reissue, certain claims for the bag were rejected, it being held that he had originally waived the right to such a claim by acquiescing in the decision of the Patent Office. The principle to be deduced from that case is that a broad claim, such as was made in that case, describes a different invention from that set forth in the process claims, and the applicant, if he desires the benefit of product and process claims in the same patent, must so claim his product that it is apparent that it is the production of the process also claimed.
Claims 12 to 23, inclusive, are for a product, without defining in any way the process by which they may be made. It has been well said that such products might be made by hand or by separate mandrels. Not only is this true, but the whole field of mechanical art would be foreclosed, if such a patent were issued, from making such a container, and the applicant would be in exclusive possession of the field. He is entitled to the benefits of his invention, but no more, and that invention consists in making containers of a certain kind, in a certain way.
Whether the appellant will be met, as urged at length in his brief, in the tribunals of the Patent Office, with the objection of double patenting, in the future, is a matter not now before us. Nor is the matter of a possibility of the bar of the statutory limit of two years being raised against appellant in the future, a matter which we can now consider. However, it may be said that the appellant was put to his election in the Patent Office, and could have filed his divisional application during the statutory period, if he had so desired.
The affidavit of Wellman, filed in the Patent Office, does not help the situation. The fact that he knows of no other way to make the container in question is not proof that it cannot be so made.
The decision of the Board of Appeals is affirmed.
Affirmed.
HATFIELD, Associate Judge, concurs in the conclusion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569588/ | 29 So. 3d 853 (2010)
HAAS TRUCKING, INC., Appellant
v.
HANCOCK COUNTY SOLID WASTE AUTHORITY and Hancock County Board of Supervisors, Appellees.
No. 2009-CA-00373-COA.
Court of Appeals of Mississippi.
March 2, 2010.
*854 R. Hayes Johnson Jr., attorney for appellant.
Ronald J. Artigues Jr., Patrick W. Kirby, Gulfport, attorneys for appellees.
Before LEE, P.J., IRVING and GRIFFIS, JJ.
IRVING, J., for the Court:
¶ 1. This appeal arises out of the Hancock County Solid Waste Authority's (the Authority) decision to revise a proposed amendment to the Hancock County Solid Waste Management Plan. The original proposal included a site owned by Haas Trucking, Inc., but the site was not included in the revised proposal.[1] Feeling aggrieved, Haas Trucking appeals and asserts that the Hancock County Circuit *855 Court erred in finding that the Authority's revised proposal is legitimate.[2]
¶ 2. Finding no error, we affirm the judgment of the circuit court.
FACTS
¶ 3. In February 2006, the Authority put out a public notice, seeking applications "from developers and operators for Class I rubbish sites in Hancock County, Mississippi." The notice stated that the Authority would "review all requests and make a determination of need as to whether additional sites are needed and/or will be included in the application process for a plan amendment." Haas Trucking submitted a request seeking inclusion of their site in the amendment. Where the application requested a "brief description of the need for the proposed facility," Haas Trucking stated that their site was a "[g]ood location for possible future landfill services in the buffer zone." Haas Trucking was included as a Class I rubbish site in the proposed plan amendment; an engineering firm that helped the Authority select the sites stated that the Haas Trucking site would "provide the citizens of Hancock County a conveniently located landfill that will reduce transportation cost[s]." Boudin Environmental also requested, and was granted, inclusion as a site in the proposed amendment.
¶ 4. In November 2006, the Authority ratified its proposed amendment. On December 21, 2006, the Authority submitted the ratified proposal to the Mississippi Department of Environmental Quality (MDEQ). As submitted, the proposed amendment suggested the establishment of eight additional waste-disposal sites, including the sites owned by Haas Trucking and Boudin Environmental. At the time of the proposal, one Class I rubbish site was already in operation in Hancock County.
¶ 5. According to Mississippi Code Annotated section 17-17-227(6) (Supp.2009), the MDEQ must either accept or reject a proposal, by means of an order, within one hundred and eighty days of the proposal's submission. However, instead of issuing an order accepting or rejecting the proposal, the MDEQ sent a letter, dated February 26, 2007, to the Authority expressing concerns over the number of sites included in the proposal. The MDEQ further offered the support and aid of an engineering firm, Neel-Schaffer Engineers. The record indicates that the Authority chose to accept the aid of Neel-Schaffer.
¶ 6. On June 21, 2007, Neel-Schaffer presented the Authority with a recommendation of three sites that the firm believed would meet Hancock County's waste-management needs. On August 21, 2007, after reviewing Neel-Schaffer's recommendations, the Authority ratified a revised plan amendment to propose to the MDEQ.[3] Instead of the eight sites that were originally proposed, the revised proposal contained only one additional Class I rubbish site, the "King site." Neel-Schaffer had recommended the King site, as well as two other sites, for a number of reasons. None of the three sites recommended by Neel-Schaffer were owned by Haas Trucking or Boudin Environmental.
¶ 7. On August 30, 2007, Haas Trucking filed a notice of appeal in the circuit court, giving notice of its "intent to appeal [the] decision of the Hancock County Solid Waste Authority, dated Aug[ust] 21, *856 2007. . . . The contested decision involved Appellant's request to have Hancock County's Solid Waste Management Plan amended to designate Appellant's property as a Class I landfill." On November 19, 2008, Boudin Environmental filed a motion in the circuit court to intervene in Haas Trucking's appeal. At a hearing the following day, the circuit court denied Boudin Environmental's motion but allowed it to file an amicus curiae brief.
¶ 8. On February 9, 2009, the circuit court issued an order affirming the decision of the Authority. The circuit court found that the Authority's decision to adopt the King site as the only proposed site to add to the waste-management plan "clearly lays out the reasons and evidence support [sic] the Authority's decision to select the King Site as a Class I rubbish site, to the exclusion of other applicants." It is from that order that Haas Trucking appeals.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶ 9. Our supreme court has explained the standard of review that applies when dealing with the decision or order of an administrative agency:
[An appellate court] will reverse the decision of an administrative agency only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party's statutory or constitutional right. Hinds County Sch. Dist. Bd. of Trs. v. R.B. ex rel. D.L.B., 10 So. 3d 387, 394-95 [(¶ 17)] (Miss.2008). An agency may not adopt rules and regulations which are contrary to statutory provisions or which exceed or conflict with the authority granted by statute. Miss. Pub. Serv. Comm'n v. Miss. Power & Light Co., 593 So. 2d 997, 1000, 1004 (Miss.1991). "[A]n agency's rule-making power does not extend to the adoption of regulations which are inconsistent with actual statutes." Tillmon v. Miss. State Dep't of Health, 749 So. 2d 1017, 1023 [(¶ 24)] (Miss.1999) (citing State ex rel. Pittman v. Miss. Public Serv. Comm'n, 538 So. 2d 367, 373 (Miss.1989)).
An agency's interpretation of a rule or statute governing the agency's operation is a matter of law that is reviewed de novo, but with great deference to the agency's interpretation. Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So. 2d 673, 678 [(¶ 10)] (Miss.2006) (quoting McDerment v. Miss. Real Estate Comm'n, 748 So. 2d 114, 118 [(¶ 9)] (Miss.1999)). This "duty of deference derives from our realization that the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate." Gill v. Miss. Dep't of Wildlife Conservation, 574 So. 2d 586, 593 (Miss.1990). However, if an agency's interpretation is contrary to the unambiguous terms or best reading of a statute, no deference is due. Sierra Club, 943 So.2d at 679 [(¶ 17)].
Miss. Methodist Hosp. & Rehab. Ctr, Inc. v. Miss. Div. of Medicaid, 21 So. 3d 600, 606-07 (¶¶ 14-15) (Miss.2009).
¶ 10. The sole question in this appeal is whether the Authority's 2007 proposed amendment of its twenty-year waste-disposal plan was appropriate. Haas Trucking and Boudin Environmental assert a number of arguments as to why the Authority was without authority to reject or revise its 2006 proposed amendment.
¶ 11. The contention that underlies most of Hass Trucking's arguments is that the existence of the Authority's 2006 proposed amendment, which was never officially *857 rejected by the MDEQ, somehow necessitates a finding that the 2007 proposal is invalid. Notably, Haas Trucking contends (1) that the proper procedures were not followed in regard to the 2006 proposal, (2) that the letter sent from the MDEQ finding fault with the 2006 proposal was "an unauthorized exercise of administrative decision-making authority," and (3) that the doctrine of res judicata bars the 2007 proposal.
¶ 12. Mississippi Code Annotated section 17-17-227(6) states, in pertinent part, that:
Upon ratification of the plan, the governing body of the county, authority or district shall submit it to the commission for review and approval. . . . The commission shall, by order, approve or disapprove the plan within one hundred eighty (180) days after its submission. The commission shall include with an order disapproving a plan a statement outlining the deficiencies in the plan and directing the governing body of the county, authority or district to submit, within one hundred twenty (120) days after issuance of the order, a revised plan that remedies those deficiencies.
(Emphasis added). Therefore, after the Authority submitted its proposed amendment in 2006, the MDEQ had one hundred and eighty days in which to respond to the proposal with an order either rejecting or accepting the proposal. However, no such order was ever issued by the MDEQ. Haas Trucking contends that the non-existence of such an order means that the 2006 proposal is still viable and, in fact, prohibits the Authority from submitting a different proposal.
¶ 13. While the MDEQ should have issued an order denying or approving the 2006 proposal, we cannot find that the failure to do so means that the MDEQ implicitly accepted the 2006 proposal. No statute states that a failure of the MDEQ to respond in accordance with the statutory guidelines constitutes an acceptance of a submitted proposal. In the absence of some statutory impetus, we will not find that the absence of an order regarding a proposal constitutes an acceptance of that proposal. The same statute that states that the MDEQ's rejection of a proposal must be done by means of an order also states exactly the same regarding the MDEQ's acceptance of a proposal. In the absence of an order accepting the 2006 proposal, we find that it remained merely a proposal, subject to revision or alteration by the Authority, taking into account any discussion or guidelines offered by the MDEQ.
¶ 14. Thus, we find no merit to any contention that the 2007 proposal was invalidated by the 2006 proposed amendment. Haas Trucking and Boudin Environmental also argue, however, that the Authority's decision not to include them in the 2007 proposed amendment was arbitrary and capricious. We find no merit to this contention, either.
¶ 15. In its report to the Authority, Neel-Schaffer noted the following about the King site:
The King Site is located in the southern part of the [c]ounty near the centers of waste generation. The site works well in tandem with the [existing disposal] site since the site is located south of I-10. Recently traffic congestion issues along Highway 43 through Kiln created transportation problems for rubbish disposal at the [existing site]. Even though the Mississippi Department of Transportation has plans to upgrade the corridor, the location of the King Site gives an advantage with regard to traffic congestion.
*858 Being located near the centers of waste generation gives the Site an advantage to serve with good factors considering transportation economics.
A "Rubbish Site Evaluation Matrix" prepared in June 2007, presumably by Neel-Schaffer, showed that the Haas Trucking site had been rated as having a "good" condition for siting only in regard to expandability. Every other consideration in the matrix, such as accessibility, capacity, and transportation economics was rated only as "fair." The King site, by contrast, was rated as "excellent" regarding expandability and as "good" in every category except capacity, in which it received a rating of "fair." The Boudin Environmental site received a rating of "good" in three categories, a "fair" rating as to capacity, and was found to be "poor" in regard to expandability and coordination with other solid-waste activities. Of all of the sites evaluated, the King site received the best overall ratings.
¶ 16. It was not only Neel-Schaffer that provided positive data regarding the King site; the 2006 report that was prepared by a different engineering firm found that the King site had the second-greatest potential annual waste capacity[4] and a facility life of forty-five years. Although Haas Trucking's site was rated as having fifty years of facility life, its estimated annual waste capacity was one-half to one-quarter that of the estimate for the King site. In other words, even the 2006 engineering report found that the King site would provide far better long-term capacity than either the Haas Trucking site or the Boudin Environmental site.[5]
¶ 17. The minutes from the Authority's August 2007 meeting, wherein the Authority voted to include the King Site in its 2007 amendment, state that the Authority considered the following in choosing the King site: (1) its accessibility "from major transportation corridors"; (2) its location in southern Hancock County; (3) the convenience of the site; (4) the large amount of land area possessed by the King site; and (5) the lessening impact that the King site would have on traffic congestion. The minutes also state that the "action [was] further based upon all of the factors included in the written report of Neel-Schaffer," as well as oral presentations by Neel-Schaffer and comments made at Authority meetings.
¶ 18. In its amicus brief, Boudin Environmental contends that the Authority "essentially turned over to a private engineering firm the selection of the previously[-]approved Class I sites to be removed from the Plan. This amounted to an unlawful delegation of a governmental function to a private entity." We find this contention is wholly without merit. It is clear that the Authority considered several sources of information; furthermore, it is logical that an agency such as the Authority will rely on the expertise of engineering firms in making such decisions when confronted with a problem beyond the Authority's scope of expertise. We find that the Authority did no more than that in this case. In fact, the Authority could not reach a unanimous decision as to whether to accept Neel-Schaffer's recommendations in their entirety.
*859 ¶ 19. It is clear from the Authority's minutes that it considered multiple factors in selecting the King site over other sites. Furthermore, the engineering reports, both from Neel-Schaffer and from the 2006 firm, show that there are substantial advantages to the King site over either Haas Trucking's or Boudin Environmental's site. On the basis of the above, we conclude that the Authority's decision was not arbitrary and capricious and was supported by substantial evidence.
¶ 20. This contention of error is without merit. Accordingly, the judgment of the circuit court is affirmed.
¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.
NOTES
[1] Boudin's Environmental Services, LLC, another company whose site was removed from the revised proposal, has filed an amicus curiae brief in this matter.
[2] Haas Trucking asserts four contentions of error, all of which we consider under the single conclusive issue of whether the revised proposal was valid.
[3] The Authority debated whether to adopt Neel-Schaffer's recommendations completely but could not reach a consensus regarding whether to do so.
[4] The site with the greatest annual capacity was owned by DK Aggregate and was one of the three sites recommended by Neel-Schaffer in 2007. Testimony at the circuit court hearing indicated that the Authority was still considering using the DK Aggregate site as a regional facility. In any case, DK Aggregate has not joined the present appeal in any capacity.
[5] Boudin Environmental's site was estimated to have half the annual waste capacity as the King site and a facility life of only fifteen to twenty years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568764/ | 29 So. 3d 761 (2010)
Jay BEARDEN
v.
BELLSOUTH TELECOMMUNICATIONS, INC.
No. 2008-CA-02088-SCT.
Supreme Court of Mississippi.
March 11, 2010.
*762 Thomas W. Prewitt, Ronald E. Stutzman, Jr., attorneys for appellant.
Kenneth W. Barton, Benjamin M. Watson, Thomas B. Alexander, Jackson, attorneys for appellee.
Before WALLER, C.J., LAMAR and PIERCE, JJ.
LAMAR, Justice, for the Court:
¶ 1. Jay Bearden filed suit for malicious prosecution against BellSouth Telecommunications, Inc., and Gloria Robison, their employee who signed an affidavit charging Bearden with cutting a telecommunications line. Summary judgment was granted in favor of the defendants. Bearden now appeals that dismissal.
FACTS AND PROCEDURAL HISTORY
¶ 2. Jay Bearden operates Bearden Construction Company, a business installing various utility conduits. In the course of installing water lines for the North Lauderdale Water Association, several of BellSouth's[1] telephone lines were cut. In an attempt to prevent further damage to BellSouth's telephone lines, Gloria Robison, a security claims investigator for BellSouth, traveled to the jobsite, met with Bearden several times, gave him a copy of Mississippi's laws regarding excavation around *763 utility lines, and asked him to refrain from cutting any more of BellSouth's telephone lines. Todd Purvis, another BellSouth employee, also visited the jobsite, accompanied by a deputy sheriff, and asked Bearden to comply with the law.
¶ 3. Despite the efforts of Robison and Purvis, the cuts did not stop. BellSouth, through its employee Robison, reported to the Lauderdale County Sheriff's Department that Bearden repeatedly had cut BellSouth's cables. On June 21, 2004, Robison signed a general affidavit and filed it with the Lauderdale County Justice Court, stating that Bearden had violated Mississippi Code Section 97-7-31,[2] which makes it a felony to interfere with a licensed telecommunications system.[3] That same day, Bearden was arrested and released on bond. Bearden was indicted by a Lauderdale County grand jury for violation of Section 97-7-31 on November 12, 2004.
¶ 4. On August 19, 2005, Bearden filed a motion to dismiss the criminal charges, arguing that because Mississippi Code Sections 97-7-31 (a felony) and 97-25-53 (a misdemeanor) have the same elements, he should be tried under the statute providing for the lesser penalty.[4] The Circuit Court of Lauderdale County agreed, and reduced the charge to the misdemeanor violation of Section 97-25-53. Further, the court transferred the case to the Lauderdale County Justice Court for disposition.
¶ 5. On October 14, 2005, Bearden filed a motion to dismiss in justice court, stating that "the Lauderdale County Justice Court does not have jurisdiction." The motion provided no legal theories or analysis. Subsequently the justice court dismissed the charge, finding "This is reference to the above case State of Ms. against Jay Q. Bearden, Per Judge William B. Gunn request this case have no jurisdiction in Lauderdale County Justice Court."
¶ 6. Following dismissal of the charges against him, Bearden filed suit against Robison and BellSouth ("the Defendants") alleging malicious prosecution. The Defendants moved for summary judgment, arguing primarily that a dismissal for lack of jurisdiction cannot support an action for *764 malicious prosecution. The circuit court agreed and granted summary judgment. From this judgment, Bearden now appeals.
ANALYSIS
¶ 7. This Court reviews grants of summary judgment under a de novo standard. Weathers v. Metropolitan Life Ins. Co., 14 So. 3d 688, 691 (Miss.2009). Summary judgment shall be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). In making such a determination, "[t]he evidence must be viewed in the light most favorable to the nonmoving party." Treasure Bay Corp. v. Ricard, 967 So. 2d 1235, 1238 (Miss.2007) (citing Flores v. Elmer, 938 So. 2d 824, 826 (Miss.2006)).
¶ 8. In order to prevail on a claim of malicious prosecution, the plaintiff must prove the following elements:
(1) the institution or continuation of original judicial proceedings, either criminal or civil;
(2) by, or at the insistence of the defendants;
(3) the termination of such proceeding in plaintiff's favor;
(4) malice in instituting the proceedings;
(5) want of probable cause for the proceedings; and
(6) the suffering of damages as a result of the action or prosecution complained of.
Van v. Grand Casinos of Miss., Inc., 724 So. 2d 889, 891 (Miss.1998) (citations omitted).
¶ 9. In the instant case, the sole issue presented is whether the third element had been met; in other words, did the justice court's dismissal of Bearden's case for lack of jurisdiction constitute a termination of proceedings in Bearden's favor. The trial court found that the dismissal for lack of jurisdiction did not constitute a termination in Bearden's favor and therefore granted summary judgment to the Defendants.
¶ 10. The issue of whether a dismissal for lack of jurisdiction may constitute a favorable termination of proceedings sufficient to support a subsequent claim of malicious prosecution is of first impression before this Court. This Court has determined, however, that in order to qualify as a termination in favor of the plaintiff, the dismissal of criminal proceedings must reflect on the merits of the criminal action. Van, 724 So.2d at 893. Further, this Court has held that "not all dismissals in this State constitute terminations in favor of the accused for purposes of malicious prosecution actions." Stewart v. Southeast Foods, Inc., 688 So. 2d 733, 737 n. 2 (Miss. 1996).
¶ 11. Though Van is properly distinguishable from the instant case in that the dismissal was on speedy-trial grounds, it nonetheless provides the proper standard to make our determination here the pivotal question is whether dismissal for lack of jurisdiction "properly reflects on the merits of a criminal action and therefore qualifies as a termination in favor of the plaintiff." Van, 724 So.2d at 893. Further, the Restatement (Second) of Torts provides that criminal proceedings are terminated in favor of the accused "only when their final disposition is such as to indicate the innocence of the accused." Restatement (Second) of Torts § 660 cmt. a (1977). Requiring a dismissal to reflect on the merits of a criminal action or the innocence of the accused comports with our public-policy considerations regarding claims of malicious prosecution:
*765 There are two competing interests in all malicious prosecution cases. The public policy interest in crime prevention insists that private citizens, when aiding law enforcement personnel, ought to be protected against the prejudice that is likely to arise from the termination of the prosecution in favor of the accused. "Large tort judgments against well-meaning individuals, acting honestly and in good faith, might seriously inhibit those attempting to perform what they believe a civic duty...." Equally important is the second interest which protects individuals from being wrongly accused of criminal behavior which results in unjustifiable and oppressive litigation of criminal charges. Consequently, in our orderly society we allow those subjected to criminal proceedings cloaked with malice to recover compensation for their losses.
Benjamin v. Hooper Elec. Supply Co., Inc., 568 So. 2d 1182, 1187-1188 (Miss.1990) (citations omitted) (emphasis in original). Further, this Court has recognized that "[m]alicious prosecution is not the most favored tort because of a public policy in favor of halting and prosecuting crime." Id. at 1187.
¶ 12. When presented with issues of first impression, it is "helpful to review the law of other jurisdictions for guidance." Conley v. State, 790 So. 2d 773, 790 (Miss. 2001). In differentiating a failure to prosecute and a procedural dismissal, the Supreme Court of California has held that a dismissal for lack of jurisdiction is "not only not on the merits, it is unreflective of the merits; neither the judgment of the court nor that of the prosecuting party on the merits is implicated in the dismissal." Lackner v. LaCroix, 25 Cal. 3d 747, 159 Cal. Rptr. 693, 602 P.2d 393, 395 (1979) (quoting Minasian v. Sapse, 80 Cal. App. 3d 823, 827, 145 Cal. Rptr. 829 (Cal.App. 2 Dist.1978)).
It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person.... Hence, if the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff have been acquitted.... The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits. If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.
Jaffe v. Stone, 18 Cal. 2d 146, 114 P.2d 335, 338 (1941) (citations omitted). California courts recently have confirmed that "a dismissal for lack of jurisdiction does not involve the merits and cannot constitute a favorable termination." Hudis v. Crawford, 125 Cal. App. 4th 1586, 1592, 24 Cal. Rptr. 3d 50 (Cal.Dist.Ct.App.2005).
¶ 13. The Supreme Court of Tennessee has found that "a favorable termination is not present for a malicious prosecution claim where the underlying proceeding was resolved based on matters of standing and jurisdiction." Parrish v. Marquis, 172 S.W.3d 526, 532 (Tenn.2005). That court further stated that the "almost universal rule" is that a dismissal on procedural grounds does not reflect on the merits and, therefore, cannot constitute a favorable termination for malicious-prosecution purposes. *766 Id. The Court of Appeals of Utah has held that claims dismissed for lack of jurisdiction and not on the merits are not considered favorable terminations. Hatch v. Davis, 102 P.3d 774, 780 (Utah App. 2004). Similarly, "Florida follows the rule that a dismissal on technical or procedural grounds does not constitute a favorable termination." In re Sav-A-Stop, Inc., 98 B.R. 83, 86 (Bkrtcy.M.D.Fla.1989). That court found that a dismissal for lack of in personam jurisdiction "was a technical termination of the proceedings and did not address the merits of the dispute," and therefore could not support a claim for malicious prosecution. Id.
¶ 14. We find these authorities to be persuasive and conclude that the dismissal of the case for lack of jurisdiction does not reflect on the merits of the criminal case against Bearden. The record is totally void of any indication of why the justice court concluded that it had no jurisdiction. Nevertheless, the order, which plainly cited the court's lack of jurisdiction as the exclusive basis for dismissal, neither indicates Bearden's innocence, nor is it inconsistent with Bearden's guilt.
¶ 15. Relying on Van, Bearden argues that the Defendants effectively abandoned the prosecution when they failed to refile an affidavit in justice court following the transfer from circuit court. We find this argument to be without merit. There is nothing in the record for this Court to conclude that the Defendants "abandoned" the prosecution. We find that Van, 724 So.2d at 889, is clearly distinguishable.
CONCLUSION
¶ 16. For these reasons, we find that the dismissal of criminal charges against Bearden for lack of jurisdiction did not constitute a termination of proceedings in Bearden's favor that would support a subsequent action for malicious prosecution. We find that summary judgment was properly granted, given the particular facts presented in this case. We therefore affirm the judgment of the circuit court.
¶ 17. AFFIRMED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
NOTES
[1] BellSouth Telecommunications, Inc., now does business as AT & T Mississippi.
[2] Mississippi Code Section 97-7-31 provides:
Whoever intentionally destroys, impairs, injures, or tampers or interferes with any real or personal property used or useful in the maintenance, repair, or operation of any telephone or telegraph system or radio station which is subject to regulation or licensing by any agency of the United States of America or of the State of Mississippi, with reasonable grounds to believe that such act will hinder, delay or interfere with the maintenance, repair or operation of such telephone or telegraph system or radio station, on conviction shall be punished as prescribed in section 97-7-29.
Miss.Code Ann. § 97-7-31 (Rev.2006).
[3] The trial court stated "It is undisputed that at the time of the affidavit, Bearden and/or his employees and subcontractors had cut BellSouth's cables at least 11 times." Indeed, in his response to BellSouth's request for admissions, Bearden admitted that Jay Bearden Construction, Inc., had damaged BellSouth cables on twenty-two separate occasions in the Meridian area between January 15, 2004, and January 25, 2005.
[4] Mississippi Code Section 97-25-53 provides:
(1) Any person who shall intentionally obstruct, injure, break or destroy, or in any other manner interrupt any telegraph or telephone line, or communication thereon between any two (2) points, by or through which the said lines may pass, or who shall injure or destroy any of the posts, wires, insulators, or fixtures, or things belonging to such telegraph or telephone lines, such person shall, on conviction, be fined not less than two hundred fifty dollars ($250.00), nor more than five hundred dollars ($500.00), or imprisoned in the county jail not exceeding six (6) months or both such fine and imprisonment....
Miss.Code Ann. § 97-25-53 (Rev.2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568875/ | 308 F. Supp. 1207 (1969)
STATE OF ILLINOIS, Plaintiff,
v.
HARPER & ROW PUBLISHERS, INC., et al., Defendants (and related cases).
No. 67 C 1899.
United States District Court N. D. Illinois, E. D.
October 10, 1969.
*1208 *1209 MEMORANDUM OPINION
DECKER, District Judge.
This is another chapter in the consolidated discovery and pretrial proceedings pending in this court pursuant to transfers made under 28 U.S.C. § 1407.
Presently before the court are the motions of six defendants in various actions to quash service of process and dismiss the actions for improper venue. Defendants maintain that they are not inhabitants of the forum districts, are not found there, and transact no business there within the meaning of § 12 of the Clayton Act, 15 U.S.C. § 22. That provision is directed to the place for venue and service in antitrust actions against corporations, and provides:
"Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found."
Accordingly, if venue in the forum districts was proper, extraterritorial service upon defendants at their places of inhabitancy was permissible.[1]
The term "transacts business" has been defined to mean "[t]he practical, everyday business or commercial concept of doing or carrying on business `of any substantial character' * * *." United States v. Scophony Corporation, 333 U.S. 795, 807, 68 S. Ct. 855, 862, 92 L. Ed. 1091 (1948). As applied by the lower courts, the term "embraces elements of substantiality of business done, with continuity in character, regularity, contemporaneousness with time of service, and not looking toward cessation of business." Commonwealth Edison Co. v. Federal Pacific Electric Co., 208 F. Supp. 936 (N.D.Ill.1962). Factors to be considered also include the extent of business solicitation and promotion within the district, both in person and by mail or telephone.[2]
Applying these tests to the evidentiary matter submitted herein, this court has concluded that movants Viking Press, Inc.,[3] Thomas Y. Crowell Co., Inc.,[4] William Morrow & Company,[5] and David McKay Company, Inc.,[6] are transacting business in the relevant districts. Accordingly, their motions to dismiss are denied.
These defendants all make substantial sales to persons in the forum districts,[7] and have done so continuously for a number of years. Additionally, they each are represented by salesmen who visit the relevant states, and each sends catalogs and other promotional and advertising material into these states. "A continuous course of conduct which includes the shipment of goods and the *1210 solicitation of business does constitute transacting business." School District of Philadelphia v. Kurtz Bros., supra, 240 F.Supp. at 363.
Viking Press has challenged venue in actions brought originally in courts in Arizona, Kansas, Wisconsin and Minnesota. Yet Viking admits by answers to interrogatories that its salesmen make periodic visits to these states, and its estimated sales for fiscal 1968 in each of the relevant states are as follows:
Arizona Kansas Wisconsin Minnesota
$28,225 $31,643 $57,300 $130,850
The affidavits and answers to interrogatories filed by defendant Crowell show significant sales in the forum states, amounting to $45,172 in Kansas in 1967 and $39,470 in Arizona in 1968.[8] In addition, Crowell is represented by a commission salesman who makes periodic visits to solicit sales in these states and by a "traveler" who promotes sales, although he himself takes no orders. Other promotional efforts in the form of catalogs and advertising in the forum states amounted to estimated expenditures of $3,770 in Kansas and $2,895 in Arizona in fiscal 1968.
As to defendant Morrow, its sales amounted to $14,926 in Kansas in 1967 and $24,000 in Arizona in 1968. It is represented in both states by a commission salesman who visits each approximately three times per year for a week at a time, and it has a salaried salesman who visits Kansas approximately six times each year. $200 per year is spent for catalogs and other promotional materials sent into each state.
Defendant McKay's sales in Kansas totaled $8,665 in 1967. A salesman visits the state twice a year, as does a traveler. An estimated $200 was spent in 1968 to distribute over 1400 catalogs in the forum state.
Defendants point out that they are neither incorporated nor licensed to do business in the forum states, nor do they own real estate or maintain offices or telephones in these states. The absence of these particular business activities reflects only movants' choices as to how to conduct their sales programs in these states, and is not dispositive of the issue in light of defendants' admitted solicited sales. See School District of Philadelphia v. Harper & Row Publishers, Inc., 267 F. Supp. 1006 (E.D.Pa. 1967).[9]
Applying the aforementioned tests of substantiality to the answers to interrogatories of movants Cosmo Book Distributing Co.[10] and DeWolfe and Fiske Co.[11] conclusively shows that these companies do not transact business in the relevant districts within the meaning of 15 U.S.C. § 22. Cosmo has neither solicited, sold, nor purchased in Minnesota from 1959 to 1968. DeWolfe has similarly engaged in no promotional efforts in Minnesota, and has made no sales, its sole contact with the state being purchases from Minnesota sellers which did not exceed $1,000 in value until 1968. Although purchasing may, of course, constitute *1211 transaction of business,[12] these insignificant sums in the absence of other contacts do not satisfy the substantiality test.
Plaintiffs maintain, however, that the general venue provisions of the Judicial Code supplement the Clayton Act venue statute and support jurisdiction here even if the tests of § 22 are not met. The provision relied on is 28 U.S.C. § 1391(b), which provides:
"A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law."
This court finds it unnecessary to determine whether § 1391(b) applies in antitrust cases,[13] for even assuming that it does, the plaintiffs' claims did not arise in the forum district. A holding to the contrary would, in effect, be an adoption of the "co-conspirator" theory of 15 U.S.C. § 22, which states that presence of one alleged co-conspirator in the district establishes venue as to all, for it would grant venue as to all defendants merely because sales by some occurred in the district. Just as the "co-conspirator" theory has been widely rejected as an attempt to evade the legislative limitations on venue in antitrust actions,[14] so also must the suggested application of § 1391(b) to the facts in these cases be rejected.
The conclusion that venue is improper in the districts in which these actions were originally brought, and thus that jurisdiction was not validly obtained over these defendants, does not require that the actions be dismissed. 28 U.S.C. § 1406(a) provides:
"The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."
§ 1406(a) was designed to avoid the "time consuming and justice defeating technicalities" to which dismissal for improper venue necessarily gives rise. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S. Ct. 913, 8 L. Ed. 39 (1962). Because no purpose would be served by dismissal of these actions, I have decided that they shall be severed[15] from the main actions and transferred at the conclusion of these pretrial proceedings. In accordance with Cosmo's suggestion, case 69 C 1203 will be transferred as to that defendant to the Northern District of Illinois. The cases involving DeWolfe will be transferred as to that defendant to the District of Massachusetts, its state of incorporation. See 15 U.S.C. § 22.
In the State of Wisconsin case, 68 C 2014, defendants William Morrow & Co. and Thomas Y. Crowell Co. were served with process pursuant to the Wisconsin Business Corporation Act. Invoking Title 17 W.S.A. § 180.847(4), plaintiff served these movants by delivering the complaint and summons to the Wisconsin Secretary of State and mailing copies thereof to movants' New York offices. However, this section in terms only authorizes such service on corporations *1212 "transacting business in this state without a certificate of authority, if a certificate of authority is required under this chapter * * *." Defendants are not required to have such a certificate because their contacts with Wisconsin are limited to sales promotion and solicitation by traveling salesmen and promotional material, with all sales accepted outside of the state. And Title 17 W.S.A. § 180.801 provides in pertinent part:
"(3) Without excluding other activities which may not constitute transacting business, * * * a foreign corporation may, without procuring a certificate of authority, carry on in this state any one or more of the following activities:
* * * * * *
(d) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this state before becoming binding contracts."
Because movants were not required to have a certificate of authority, § 180.847 (4) does not apply and the substituted service was invalid.[16] The motions to dismiss must therefore be granted as to these defendants.
For the reasons heretofore assigned, an order has been entered today denying all motions to dismiss except the motions of Crowell and Morrow in case No. 68 C 2014, which are granted. Said order will also provide for the transfer of case No. 69 C 1203, as to Cosmo Book Distributing Co., to the Northern District of Illinois, and cases Nos. 68 C 2040, 69 C 797 and 69 C 1203, as to DeWolfe & Fiske Co., to the District of Massachusetts, at the conclusion of these pretrial proceedings.
NOTES
[1] State of Wisconsin, 68 C 2014, was not brought under § 22 and will be considered separately, infra.
[2] Eastman Kodak Company v. Southern Photo Material Company, 273 U.S. 359, 374, 47 S. Ct. 400, 71 L. Ed. 684 (1927); School District of Philadelphia v. Kurtz Bros., 240 F. Supp. 361 (E.D.Pa.1965).
[3] 68 C 1999, 68 C 2014, 68 C 2040, 68 C 2041, 69 C 797, 69 C 1203, 69 C 1412.
[4] 68 C 1999, 69 C 1412.
[5] 68 C 1999, 69 C 1412.
[6] 68 C 1999.
[7] Defendants emphasize that all sales are accepted outside of the forum state, and all shipments are F.O.B. at states other than the forum. However, § 22 is not controlled by "hair splitting legal technicalities." Commonwealth Edison Co. v. Federal Pacific Electric Co., supra, 208 F.Supp. at 941.
[8] Movants Crowell, Morrow and McKay have stated that figures quoted herein are representative of other pertinent years.
[9] Defendants emphasize the importance of comparing sales within the district to total nationwide sales. This approach was properly rejected, however, in United States v. Burlington Industries, Inc., 247 F. Supp. 185, 187 (S.D.N.Y.1965), because of its necessary bias in favor of large corporations.
[10] 69 C 1203.
[11] 68 C 2040, 69 C 797, 69 C 1203.
[12] See Crusader Marine Corporation v. Chrysler Corporation, 281 F. Supp. 802 (E.D.Mich.1968), where purchases in the district approximated two million dollars per year.
[13] See Philadelphia Housing Authority v. American Radiator & Standard Corporation, 291 F. Supp. 252 (E.D.Pa.1968); cf. 1 Moore, Federal Practice, ¶ 0.142 (4) at pp. 1480-1481.
[14] See Bankers Life and Casualty Co. v. Holland, Chief Judge, 346 U.S. 379, 384, 74 S. Ct. 145, 98 L. Ed. 106 (1953); Commonwealth Edison Co. v. Federal Pacific Electric Co., supra, 208 F.Supp. at 941; Philadelphia Housing Authority v. American Radiator & Standard, supra, 291 F.Supp. at 261.
[15] The propriety of severance is discussed in Rains v. Cascade Industries, Inc., 258 F. Supp. 974 (S.D.N.Y.1966); United Nations Korean Reconstruction Agency v. Glass Production Methods, Inc., 143 F. Supp. 248 (S.D.N.Y.1956).
[16] Plaintiff's reliance on Title 25 W.S.A. § 262.06 is improper, for the service did not meet the requirement of § 262.06(5) (c) that it be made on "an agent authorized by appointment or by law * *." And Title 17 W.S.A. § 180.11 is also inapplicable, for it deals only with Wisconsin corporations. See § 180.02(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568882/ | 772 S.W.2d 218 (1989)
UNITED STATES FIRE INSURANCE COMPANY, Appellant,
v.
UNITED SERVICE AUTOMOBILE ASSOCIATION, Appellee.
No. 05-88-01042-CV.
Court of Appeals of Texas, Dallas.
May 11, 1989.
Rehearing Denied June 15, 1989.
*219 John H. Marks, Jr., Mark M. Donheiser, Michelle R. Sherman, Dallas, for appellant.
Mark E. Smith, Sidney H. Davis, Jr., Dallas, for appellee.
Before WHITHAM, THOMAS and BURNETT, JJ.
WHITHAM, Justice.
This appeal involves a dispute between insurers over which insurer has the duty to defend Anna Milliken, a passenger in an automobile, who allegedly caused an accident by grabbing the steering wheel of a moving vehicle. There are three policies at issue: one, the United States Fire Insurance Company automobile liability policy *220 covering the automobile involved in the accident; two, the United Service Automobile Association automobile liability policy issued to the father of the passenger who grabbed the steering wheel; and three, the United Service Automobile Association homeowner's policy issued to the father of the passenger. This declaratory judgment action was filed by United Service against Anna Milliken and U.S. Fire to determine who, if anyone, had the duty to defend Anna Milliken on an underlying liability lawsuit filed against her. Both insurers filed motions for summary judgment. The trial court granted the motion of appellee, United Service Automobile Association, and denied the motion of appellant, United States Fire Insurance Company. U.S. Fire appeals. We agree with the trial court that U.S. Fire had the duty to defend. Accordingly, we affirm.
The underlying liability lawsuit arose out of an accident that occurred when Anna was riding back with Douglas Martin from a church sponsored retreat. The car Douglas was driving was owned by his father and was covered by the U.S. Fire policy. Douglas testified that there was some swerving and horseplay prior to the accident. Anna testified that Douglas was zigzagging the wheel back and forth prior to the accident and that she grabbed the wheel on two occasions prior to the accident in an effort to play back with him. The first time Douglas did not object, and the second time was immediately prior to the accident. Anna testified that she and Douglas were "just kind of playing around." Deposition excerpts are made a part of the record pursuant to stipulations. Anna brought suit against Douglas for injuries she sustained in the accident. Douglas counterclaimed against Anna for his injuries. This counterclaim gives rise to the dispute regarding the duty to defend. The relevant portion of Douglas's counterclaim states as follows:
Suddenly and without warning [Anna] grabbed the steering wheel of the car, causing it to leave the road, run into a ditch and seriously injure [Douglas], who was a minor at the time of said accident.
U.S. Fire issued a Texas personal automobile policy to Robert Martin covering the vehicle involved in the accident. The liability portion of the U.S. Fire policy provides liability coverage for any "covered person" which is defined, in part, as "any person using your covered auto." The policy also contains an exclusion excluding liability for any person "using a vehicle without a reasonable belief that that person is entitled to do so." United Service issued a Texas personal automobile policy to Anna's father, Frank Milliken. This policy also provides liability coverage to a "covered person," which is defined in part to mean "you or any family member for the ownership, maintenance or use of any auto or trailer." The United Service automobile policy also contains the same exclusion for persons "using a vehicle without a reasonable belief that that person is entitled to do so." The United Service policy also provides in its "Other Insurance" clause that "any liability insurance we provide to a covered person for the maintenance or use of a vehicle you [Frank Milliken] do not own shall be excess over any other applicable liability insurance." United Service also issued a homeowner's policy to Frank Milliken. Anna is an insured under this policy, but the liability section of the homeowner's policy contains an exclusion discussed below.
In its first, fifth, and seventh points of error, U.S. Fire contends that the trial court erred in granting United Service's motion for summary judgment because there are genuine issues of material fact as to whether Anna was (1) using the vehicle and (2) operating the vehicle. First, we address the exclusion in the homeowner's policy. For the purposes of this opinion we assume, but do not decide, that U.S. Fire has standing to complain of the trial court's ruling as to the United Service homeowner's policy. Exclusion 4.a(2) under Coverage D of the United Service homeowner's policy provides that the liability coverage provided under the policy shall not apply to conduct arising out of:
The ownership, maintenance, operation, use, loading or unloading of: ... any motor vehicle owned or (2) operated by or rented or loaned to any insured.
*221 We conclude that if this exclusion is applicable, then there is no liability coverage (and thus no duty to defend) for Anna in this instance under the United Service homeowner's policy. We reach this conclusion because, based on the express wording of the exclusion, it is clear that the exclusion would be applicable if Anna was "using" and "operating" the Martin automobile at the time of the accident. Hence, we reach the questions of whether Anna was "using" the Martin automobile and whether Anna was "operating" the Martin automobile.
First, we consider the question of "use." The issue of "use" of the automobile by Anna arises both under the United Service homeowner's policy and the two automobile policies. At the time of the accident, it is undisputed that Anna was riding as a passenger in the Martin automobile. We conclude that this fact alone constitutes a "use" of the automobile. See State Farm Mutual Auto. Ins. Co. v. Francis, 669 S.W.2d 424, 427 (Tex.App. Houston [1st Dist.] 1984, writ ref'd n.r.e.) (passenger in car hauling trailer held to be a "user"); Home Indem. Co. v. Lively, 353 F. Supp. 1191, 1194 (W.D.Okla.1972) (passenger throwing pop bottle from vehicle held to be "user"); National Am. Ins. Co. v. Insurance Co. of N. Am., 74 Cal. App. 3d 565, 571, 140 Cal. Rptr. 828 (1977) (passenger throwing egg from car held to be "user"). Moreover, we conclude that a passenger who grabs the steering wheel of a moving automobile is "using" the automobile within the meaning of a liability policy. See United States Fidelity and Guar. Co. v. Hokanson, 2 Kan. App. 2d 580, 584 P.2d 1264, 1267 (1978); Viking Ins. Co. of Wis. v. Zinkgraf, 47 Wash.App. 645, 737 P.2d 268, 269 (1987). We note the applicability of the reasoning in Hokanson:
When Deborah Cookson [the passenger] grabbed the steering wheel she obtained the use of the vehicle. By grabbing the wheel and exerting a force on it, she obtained control of the vehicle, even though for only an instant. It is immaterial that she exercised control solely for the purpose of perpetrating a prank.
Hokanson, 584 P.2d at 1267 (emphasis added). We see no real difference in Deborah's conduct and in Anna's conduct. Therefore, we conclude that Anna's act of seizing the steering wheel and Anna's occupancy of the vehicle as a passenger constitute a "use" of the automobile within the provisions of Exclusion 4.a(2) under Coverage D of the United Service homeowner's policy.
Next, we turn to the question of "operating." We conclude that Anna was also "operating" the vehicle when she grabbed the steering wheel. Again, we read Hokanson as instructive:
By grabbing the wheel and exerting a force on it, she obtained control of the vehicle, even though for only an instant....
We believe that when a person takes control of a moving vehicle, even though for only an instant, that person has gained control over it and is operating it within the normal definition and understanding which ordinary laymen would give to an insurance policy.
Hokanson, 584 P.2d at 1267. See also State Farm Mut. Auto. Ins. Co. v. Larsen, 62 Ill.App.3d 1, 18 Ill. Dec. 582, 585, 377 N.E.2d 1218, 1221 (1978). In Larsen, the passenger seized the steering wheel and thus was "operating" the vehicle:
However, we feel that although Snower may have been acting as a passenger upon entering the Dodge, he was in fact operating the Foreman vehicle just prior to the collision. Snower's act of grabbing the steering wheel and turning it caused the automobile to cross the median strip and enter the westbound traffic lanes. Accordingly, it is evident that he exerted dominion and control over the Dodge at that time.
Larsen, 377 N.E.2d at 1221 (emphasis added). Because it is alleged that Anna grabbed the steering wheel of the Martin automobile and caused it to leave the road, we conclude that Douglas is alleging that Anna was asserting dominion and control over the vehicle immediately prior to the accident. As in Hokanson and Larsen, we conclude that this exercise of dominion and *222 control over the Martin automobile constitutes "operation" of the vehicle which brings Anna's alleged conduct directly within the express terms of Exclusion 4.a(2) under Coverage D of the United Service homeowner's policy. Because the alleged conduct of Anna (as alleged in the counterclaim filed against her) constitutes both a "use" and an "operation" of the automobile, we conclude that the express terms of Exclusion 4.a(2) under Coverage D of the United Service homeowner's policy are met, thus eliminating any duty to defend under the homeowner's policy.
Before finally disposing of U.S. Fire's first point of error complaining that the trial court erred in granting United Service's motion for summary judgment, we must address the question of whether the trial court correctly granted summary judgment in favor of United Service on the issue of United Service's duty to defend under the United Service automobile policy. Thus, we address the reach of the two automobile liability policies. Two factors determine whether or not Anna has liability coverage in this case under the U.S. Fire and the United Service automobile liability policies: first, whether Anna was "using" the Martin automobile at the time of the accident; and second, whether Anna was using the vehicle "without a reasonable belief" that she was entitled to do so. The first inquiry pertains to whether Anna is a "covered person" under either policy, and the second inquiry pertains to whether coverage under either policy is excluded. The key point, however, is that the inquiries to determine coverage under both automobile policies are identical. Either Anna will have liability coverage under both the U.S. Fire and the United Service automobile liability policies, or she will have no liability coverage under either policy.
It is undisputed and uncontested by U.S. Fire that if both automobile liability policies provide coverage to Anna, then under Texas law, the U.S. Fire policy would be the primary policy, and the United Service automobile policy would be the excess policy. See Snyder v. Allstate Ins. Co., 485 S.W.2d 769, 770 (Tex.1972). As the primary insurer, the duty to defend Anna under the automobile policies would fall on U.S. Fire. Snyder, 485 S.W.2d at 771. This is undisputed, and U.S. Fire did not contest this issue in the trial court and has not raised this issue on appeal. We conclude, therefore, that the trial court's ruling that United Service had no duty to defend Anna under the United Service automobile policy was correct. We reach this conclusion as follows. If Anna was not "using" the automobile at the time of the accident or did not have a "reasonable belief" that she was entitled to use the automobile at the time of the accident, then there would be no coverage (and no duty to defend) under either the U.S. Fire or the United Service automobile policy. However, if Anna was "using" the automobile at the time of the accident and did have a "reasonable belief" that she was entitled to use the automobile at the time of the accident, then the provisions of both the United Service and the U.S. Fire automobile liability policies would be applicable, but the duty to defend Anna would fall on U.S. Fire as the primary insurer. In either case, United Service would not be responsible for Anna's defense under its automobile policy. We have previously concluded that Anna was "using" the automobile within the meaning of the homeowner's policy. On the same reasoning and authorities we now conclude that Anna was "using" the automobile within the meaning of the two automobile liability policies. Later in this opinion we address the inquiry of whether Anna had a "reasonable belief" that she was entitled to use the automobile at the time of the accident and decide the question against U.S. Fire. It follows, therefore, that the trial court correctly granted United Service's motion for summary judgment and decided that United Service did not have a duty to defend Anna under the United Service automobile liability policy. We overrule U.S. Fire's first, fifth, and seventh points of error. Also, in its second point of error, U.S. Fire contends that the trial court erred in denying its motion for summary judgment. U.S. Fire briefs and argues its second point of error together with its first point of error. We have *223 above overruled U.S. Fire's first point of error. For the reasons there expressed, we overrule U.S. Fire's second point of error.
Further, in its fourth and sixth points of error, U.S. Fire contends that the trial court erred in denying its motion for summary judgment because as a matter of law (1) Anna was not using the vehicle with permission of the named insurer and (2) Anna was not using the vehicle. We have previously concluded that Anna was "using" the vehicle within the meaning of the United Service homeowner's policy. We have previously concluded that the rationale and authorities followed to reach that conclusion mandate a holding that Anna was "using" the vehicle within the language and meaning of the two automobile liability policies. Consequently, we conclude that Anna was "using" the vehicle under the provisions of the U.S. Fire automobile liability policy. We overrule U.S. Fire's sixth point of error.
Thus, we reach U.S. Fire's assertion that Anna was not using the vehicle with permission of the named insured. U.S. Fire would have us hold that as a matter of law Anna was not using the vehicle with permission of the named insured. In doing so, U.S. Fire seeks to divert us from the inquiry into whether Anna had a "reasonable belief" that she was entitled to use the automobile at the time of the accident. Therefore, U.S. Fire would have us focus on an act of the named insuredpermissionrather than on Anna's act"belief." We conclude that U.S. Fire takes this approach because it recognizes that Anna's "belief" is a nonissue in the present case and, therefore, affords it no relief. We reach this conclusion in this manner. U.S. Fire looks to the counterclaim filed against Anna as determining an insurer's duty to defend. Indeed, an insurer's duty to defend is determined by the allegations in the petition filed against the insured. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). We quote U.S. Fire's brief:
In suing Anna Milliken, Douglas martin [sic] plead that she "suddenly and without warning ... grabbed the steering wheel of the car...." Transcript at 129. Relying solely on the pleaded allegations and the policy language, U.S. Fire submits that this pleading establishes the application of the relevant exclusion, i.e., that Anna Milliken was not using the vehicle with a reasonable belief that she was entitled to do so. One does not do something "suddenly and without warning" which one reasonably believes one is entitled to do. Based solely on the pleading in the policy, [sic] United States Fire should be granted judgment that it has no duty to defend Anna Milliken in the claims against her by Douglas Martin.
(Emphasis added.) Hence, U.S. Fire would have us negate Anna's "belief" as a matter of law because she acted "suddenly and without warning." Indeed, "suddenly and without warning" in this context refers to surprise experienced by the driver. The phrase does not refer to a perception on the part of the actor-passenger. We decline to hold that the exclusion provided in section A. (8) of the U.S. Fire policy excluding liability coverage for any person "using a vehicle without a reasonable belief that the person is entitled to do so" shall be determined by the amount of surprise experienced by the driver of a vehicle when the passenger grabs the steering wheel. We conclude, therefore, that the inquiry does not focus on the named insured's permission as U.S. Fire would have us hold.
Instead, the allegations against the insured should be considered in light of the policy provisions without reference to the truth or falsity thereof and without reference to what the parties know or believe the true facts to be. Heyden Newport Chemical Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). In the present case, the relevant pleading against Anna is the counterclaim filed against her. In that pleading, Martin alleges that:
Suddenly and without warning, [Anna] grabbed the steering wheel of the car, causing it to leave the road, run into a ditch and seriously injure [Douglas]....
*224 This is the only portion of the counterclaim pleading that U.S. Fire relies on to exclude coverage under its policy. In examining the specific language of the counterclaim set forth above, there is nothing in that language which indicates that Anna did not have a "reasonable belief" that she was entitled to grab the steering wheel of the car. The words "suddenly and without warning" refer only to Douglas's perception of events. Nothing in that sentence or in the entire counterclaim alleges or suggests that Anna did not have a reasonable belief that she was entitled to grab the steering wheel. This is the test expressly prescribed under the terms of Exclusion A.(8) of the U.S. Fire policy. The issue is not whether Anna had the express or implied permission of Douglas to grab the steering wheel (which is the inquiry made in many of the cases cited by U.S. Fire in its brief); rather, the issue is whether Anna had a "reasonable belief" that she was entitled to grab the steering wheel when she did. We read the Martin counterclaim as silent on this point. Since there is no allegation in the counterclaim which would indicate that Anna did not have a reasonable belief that she was entitled to grab the steering wheel, we conclude that there is no allegation on which to base a denial of coverage and refusal to defend under Exclusion A.(8) of the U.S. Fire policy. Therefore, considering only the language in the Martin counterclaim (as U.S. Fire requests in its brief), we conclude that U.S. Fire, as the primary insurer in this case, has the duty to defend Anna since there is no allegation in the counterclaim suggesting that Anna did not have a reasonable belief that she was entitled to grab the steering wheel when she did. We overrule U.S. Fire's fourth point of error.
In its third point of error, U.S. Fire contends that the trial court erred in granting United Service's motion for summary judgment because there is a genuine issue of material fact as to whether Anna was using the vehicle in question with the permission of the named insured. U.S. Fire briefs and argues its third point of error together with its fourth point of error. In light of our disposition of U.S. Fire's fourth point of error, we conclude that in the present case there is no genuine issue of material fact as to whether Anna was using the vehicle in question with the permission of the named insured. We overrule U.S. Fire's third point of error. We also overrule U.S. Fire's second point of error for the additional reasons as expressed in our disposition of U.S. Fire's fourth and sixth points of error.
Having overruled U.S. Fire's seven points of error, we affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568878/ | 772 S.W.2d 809 (1989)
FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellant/Cross-Respondent,
v.
Alfred J. FLEISCHER, Sr., Alfred J. Fleischer, Jr., and Eva L. Fleischer, Individually and d/b/a Fleischer-Seeger Construction Company, Respondent/Cross-Appellant.
No. 54405.
Missouri Court of Appeals, Eastern District, Division Two.
May 9, 1989.
Motion for Rehearing and/or Transfer Denied June 7, 1989.
Application to Transfer Denied August 1, 1989.
*810 David M. Duree, St. Louis, Kenneth I. Jonson, Washington, D.C., for appellant/cross-respondent.
Merle L. Silverstein, Clayton, Edward L. Foote, Chicago, Ill., for respondent/cross-appellant.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 7, 1989.
GRIMM, Presiding Judge.
This case involves a suit on an indemnity agreement given to secure a performance bond and a labor and material payment bond, as well as a breach of contract claim. The jury verdicts were (1) for the indemnitors and against the surety on the indemnity claim, and (2) for the contractor and against the surety on the breach of contract claim.
On appeal, surety contends that the trial court erred in giving several instructions, failing to direct verdicts, and excluding evidence. In their cross-appeal, the indemnitors allege that the trial court erred in failing to direct a verdict in their favor on a civil conspiracy count. We reverse and remand the indemnity and breach of contract claims, but affirm the civil conspiracy judgment.
In 1983, a group of investors purchased the S.S. Admiral. That December, Fleischer-Seeger Construction Company (contractor) entered into a contract with S.S. Admiral Partners (owner). This contract provided that contractor was to serve as construction *811 manager in the conversion of the vessel into an entertainment center.
In the contract, the parties acknowledged that the final design, plans, and specifications had not been prepared. Nevertheless, a guaranteed maximum of $15,085,000 was established in the contract, with recognition that if the developed plans indicated that they could not be completed within that amount, the plans would be redesigned. May 1, 1985, was established as "The Date of Substantial Completion."
The contract required contractor to furnish two bonds, each in the amount of $15,085,000. One was a Performance Bond, which in effect guaranteed that contractor's contract with owner would be performed. The other was a Labor and Material Payment Bond; it guaranteed payment of all contracts with contractor for labor and material on the project. As was contractor's custom, these bonds were purchased from Fidelity and Deposit Company of Maryland (F & D).
Each year, contractor furnished F & D with a financial statement of its condition. In addition, in 1976, a continuing Agreement of Indemnity was given to F & D, signed by Alfred J. Fleischer, and his wife, Eva L. Fleischer, as well as Alfred J. Fleischer, Jr., (Fleischers or indemnitors). The three signed as individuals and as co-partners in Fleischer-Seeger Construction Co.
Work began on the Admiral project in 1984. Disagreements arose between contractor and owner. They negotiated from January, 1985, through September, 1985. A work stoppage of approximately six weeks occurred in August-September, 1985. The parties apparently resolved their disputes and on September 30, 1985, "Change Order No. 1, Admiral Contract" was executed.
That change order established February 28, 1986, as a new Date of Substantial Completion. The guaranteed maximum was increased to $16,760,000, with provisions for other possible adjustments not to exceed $525,000. The bonds were required to be increased to this amount, and they were. Other adjustments to the contract, not material to this opinion, were also made.
Peace was short-lived. In the next few months, controversies arose or were resumed. We mention a few. Owner had problems securing adequate financing and contractor was concerned about receiving payment. Numerous requests for change orders and clarifications were submitted by subcontractors; owner claimed contractor did not furnish sufficient documentation to consider the requests, while contractor claimed owner was extremely slow in granting formal approval which delayed payments. Disputes occurred weekly as to adequacy of the contractors staff. Contractor sought a 60-day extension to complete the project, which owner and an arbitrator denied.
Payment & Work Stoppage Controversies
The contract, as amended by the September 30 change order, required contractor to submit monthly applications for payment. Specifically, paragraph 6.1.1 of the change order required contractor to set "forth the amount requested by item, payee, and budgeted amount, together with copies of bills and contracts trade breakdown in support thereof." Owner was required to pay within 20 days after the documentation was received, "provided the payment is approved by the Architect/Engineer" and lender. The Architect/Engineer was the firm of Helmuth, Obata, and Kassebaum (HOK).
Payment application number 23, for the month of October, 1985, requested $841,875. HOK withheld approval on some items which had been revised, and for which it needed documentation. HOK approved $815,926, which owner paid and contractor accepted.
Payment application number 24, for the month of November, 1985, was submitted on December 9 and asked for $974,962. By letter dated December 16, HOK advised contractor and owner that pages 6 through 16 of the application covered work required due to drawing or specification changes, *812 but that HOK did not have copies of change orders or written approval/authorization from owner. Lacking the necessary documentation, HOK did not approve any of those items. It approved payment of $780,255 without qualification, and payment of an additional $22,022, if properly qualified.
On January 6, 1986, owner paid contractor $780,255. That same day, contractor delivered written notice to owner and HOK concerning the payment, which was $194,707 less than requested. Contractor advised that, pursuant to paragraph 6.6 of the Change Order, the project would be stopped in seven days unless payment of the balance was received.
On January 8, owner sent contractor a check for $15,734. This check was partial payment of the $22,022 approved by HOK if properly qualified. It was paid under protest, as it allegedly was for salary and wages during the time the project was halted in August, 1985. The other $6,288, representing contractor's legal fees in connection with the September 30 Change Order, was not paid.
On January 13, owner delivered a letter to contractor advising of its intent "to pay for an amount when it becomes due under Paragraph 6.1(ii) of Change Order No. 1." That paragraph provides, "in no event shall a payment be due until it has been approved by the Architect/Engineer and any lender...." Owner insisted that those terms be met.
Also on Monday, January 13, payment application number 25, for the month of December, 1985, was delivered to HOK. The amount requested was $1,404,105; on Friday, January 17, HOK approved $1,139,695 for payment. HOK's letter of approval, received by contractor on Monday, January 20, advised contractor and owner that the application lacked documentation for pages 6 through 16, and therefore it could not approve any of those items for payment.
On Friday, January 17, contractor delivered a written notice to owner; it said: "Pursuant to our letter of January 6, 1986, and the conversations between our respective attorneys, the Project will be stopped as of 4:30 p.m., on January 17, 1986." Owner responded with a letter that day, insisting that the contract and Change Order be complied with; further it advised that any work stoppage would be considered "to be a material breach of these agreements." Contractor ceased work that day and did not return to the project.
On January 22, owner notified contractor and F & D that the contract was in default. The notice said that contractor failed "to supply enough properly skilled workmen and materials, and has persistently failed and refused to provide or adhere to a Project Completion Schedule" calculated to meet the deadline. A notice was given of intent to terminate if the failures were not cured within seven days. The letter also gave notice that contractor's failures would constitute a breach of the performance bond and that F & D would be requested to complete the contract.
On that same day, following receipt of the letter, Mr. Fleischer, Jr., and F & D's representative discussed the letter. On January 28, representatives of owner, contractor, and F & D met for approximately an hour and discussed the situation.
In the January 28 meeting, contractor gave owner and F & D a six-page letter in response to owner's January 22 notice of default. The letter pointed out that owner had failed to furnish "required data in a timely manner;" and as a result, countless delays had occurred and delays would continue unless corrective action was taken. Lack of access to a computer which owner's agent was to provide also hampered scheduling. Contractor said that it was not in default, but that the problems were caused by owner's agent and owner's non-performance of its responsibilities.
On February 4, contractor wrote owner that because of owner's "continuing failure to make payment under our contract, we are unable to resume the Project." A week later, February 11, contractor again wrote owner advising that the project "will continue to be stopped until this default is cured."
*813 On February 12, owner advised contractor that due to contractor's failure to cure the violations mentioned in the January 22 notice of default, owner was terminating contractor's employment in accordance with paragraph 13.2.2 of the contract. On that same day, owner demanded that F & D "promptly remedy the default or promptly" complete the contract.
At trial, contractor testified that the "project was delayed because of the inordinate number of changes that occurred on the project, the failure to procure permanent power, and the fact the boat was not enclosed." Contractor estimated that, as of January 17, 1986, it would have taken five additional months to complete the project. The reason for leaving the project on January 17, 1986, was owner's failure to pay for the change orders which had been issued.
Bonds and Indemnity Agreement
At this point, it is necessary to digress from the chronology of events to briefly examine the bonds given by F & D, and the indemnity agreement given by Fleischers. The performance bond provides:
Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner's obligations thereunder, [F & D] may promptly remedy the default, or shall promptly
(1) Complete the Contract ..., or
(2) Obtain a bid or bids for completing the Contract ...
Attached to the performance bond, as well as to the labor and material payment bond, was a "Lender's Dual Obligee Rider" which added Centerre Bank as a named obligee to the bond. In addition, the rider provided that "[t]here shall be no liability on the part of the [contractor] or [F & D] under this bond to the [owner or Centerre]... unless the [owner] ... shall make payments to the [contractor] ... strictly in accordance with the terms of said Contract as to payments, and shall perform all the other obligations [timely]."
The labor and material payment bond provided that if contractor did not promptly pay claimants "for all labor and material used or reasonably required for use in the performance of the contract," then F & D was obligated to make such payments. A claimant was defined as one having a direct contract with contractor or with a subcontractor of contractor. Suits by claimants could be filed ninety days "after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant."
The Agreement of Indemnity which Fleischers gave F & D contains twenty numbered paragraphs; we set out three. In paragraph Second, Fleischers agreed to indemnify F & D from all losses and expenses by reason of F & D executing surety bonds such as those involved here. It continues, saying:
Payment ... shall be made to [F & D] by the Contractor and Indemnitors as soon as liability exists or is asserted against [F & D], whether or not [F & D] shall have made any payment therefor. Such payment shall be equal to the amount of the reserve set by [F & D]. In the event of any payment by [F & D] the Contractor and Indemnitors further agree that in any accounting between [F & D] and the Contractor, or between [F & D] and the Indemnitors, or either or both of them, [F & D] shall be entitled to charge for any and all disbursements made by it in good faith ... under the belief that it is or was liable for the sums and amounts so disbursed, or that it was necessary or expedient to make such disbursements, whether or not such liability, necessity or expediency existed; and that ... evidence of any such payments made by [F & D] shall be prima facie evidence of the fact and amount of the liability to [F & D].
Paragraph Sixth of the agreement concerns takeover of the work bonded. It provides:
In the event of any breach or default asserted by [owner] in any said Bonds, or the Contractor has abandoned the work on or forfeited any contract ... [F & D] shall have the right ... to take possession of any ... work under any contract *814 or contracts covered by any said Bonds, and at the expense of the Contractor and Indemnitors to complete [the contract], and the Contractor and Indemnitors shall promptly upon demand pay to [F & D] all losses, and expenses so incurred.
As to the authority of F & D to settle claims, paragraph Thirteenth gave F & D
the right to adjust, settle or compromise any claim, demand, suit or judgment ... unless the Contractor and the Indemnitors shall request [F & D] to litigate such claim ... and shall deposit with [F & D], at the time of such request, cash or collateral satisfactory to [F & D] in kind and amount, to be used in paying any judgment or judgments rendered or that may be rendered, [together with costs, etc.].
F & D's Involvement
The day after receiving owner's February 12 letter demanding that F & D promptly remedy the default or promptly complete the contract, F & D telephoned Al Fleischer, Jr. The call was followed up the next day by a letter. This follow-up letter said that if the indemnitors wanted F & D to complete the job, such a request should be put in writing. Thereafter, F & D personnel were in contact with Mr. Fleischer, Jr. on almost a daily basis.
On March 4, Mr. Fleischer, Jr. wrote F & D that "[w]hile we deny that [we] ... breached any portion of [the Admiral contract], we recognize the desire to minimize any possible exposure in this matter." He suggested that F & D take over the project and retain contractor to complete the project.
Representatives and attorneys for owner, contractor, and F & D had numerous meetings from late-February through mid-April attempting to reach a settlement. The focus of the negotiations was to work out an agreement to complete the construction, with owner and contractor reserving their rights to litigate their claim that the opposite party breached the contract.[1]
While these discussions were going on, F & D told owner that it was F & D's position that owner breached the contract. Owner, on the other hand, claimed contractor breached. Owner told F & D that if F & D did not "act to cause the boat to be completed, the owner was not going to do it, that the cost would escalate from several, four or five million dollars to probably twenty million or more."
F & D told contractor that it could not be sure that it would win; that owner might be able to prove that contractor breached the contract. That possibility of owner's success exposed contractor and F & D to a substantial risk; the exposure discussed between F & D and contractor was in the area of $30 million if the boat sat there and was not completed.
Negotiations among the three parties broke down in mid-April. As a result, F & D began negotiating with owner to minimize its exposure. F & D notified contractor of this in an April 30 letter. At the same time, F & D requested that contractor and the indemnitors post at least $3,000,000 collateral to cover F & D's exposure. The collateral was not posted. Fleischers took the position that the bonds, and therefore, the indemnity agreement, had been voided by owner's breach.
Contractor told F & D not to pay any of its suppliers or subcontractors. Contractor also instructed F & D not to enter into any settlement agreement with owner. The record is not clear as to the exact time of these communications.
It was contractor's position that the subcontractors had agreed that only funds from owner would be used to pay for labor and materials. This position was based on the language of the subcontracts which said "Contractor shall pay or cause to be paid to the subcontractor ... Dollars ... and only to make payments on account thereof from funds paid by Owner in accordance with the terms of the contract between Contractor and Owner." Since owner had not paid contractor, contractor said it did not yet owe the subcontractors.
*815 On the other hand, F & D took the position that contractor owed the subcontractors, whether owner had paid or not. On May 6, F & D sent Fleischers a letter and a copy of American Drilling Service Co. v. City of Springfield, 614 S.W.2d 266 (Mo. App.S.D.1981). F & D's letter expressed the opinion that a "pay when paid" clause is not a condition precedent to payment to the subcontractor; rather, such a clause establishes the time of payment, and payment can only be delayed for a reasonable period of time.
On May 14, owner and F & D reached an agreement. Basically, F & D agreed to pay the subcontractors the amounts due under the architect's certificate of payment of the February, 1986, pay application, less retainage. F & D also agreed to pay the cost of obtaining substitute subcontractors, where necessary, to complete the project. The project was to resume under a construction manager retained by owner. The effective date of the agreement was June 4, and until that date, either party had the unilateral right to terminate the agreement.
The next day, May 15, a copy of the agreement was sent to contractor and each of the indemnitors. Another demand was also made for $3,000,000 collateral to be deposited with F & D. Collateral was not deposited. On June 4, the May 14 agreement went into effect and was performed.
F & D paid $2,602,947.33 under the performance bond to permit completion of the contract. It also paid $2,327,591 to trade subcontractors under the labor and material payment bond. F & D seeks reimbursement of those sums, plus fees and interest.
F & D's Appeal
F & D's primary point is that the trial court erred in giving Instruction No. 9, submitted by contractor as an affirmative converse. It contends that subparagraphs (a) and (c) of that instruction are not correct statements of the law. We agree.
Instruction No. 9, as submitted, states:
Your verdict must be for Fleischers on the Cross-Claim of Fidelity & Deposit Company of Maryland if you believe:
a) The bonds were void as to the Admiral and that the trade contractors were to be paid only from funds supplied by the Admiral, or
b) The payments were not made in good faith, or
c) The Fleischers agreed in the indemnity to reimburse Fidelity only if Fidelity was liable for losses and Fidelity was not liable for losses.
In order to understand why this instruction was erroneous, we first look at some underlying facts and principles.
Under paragraph Second of the Agreement of Indemnity, F & D was entitled to reimbursement from Fleischers "for any and all disbursements made by it in good faith ... under the belief that it is or was liable for the sums and amounts so disbursed, or that it was necessary or expedient to make such disbursements, whether or not such liability, necessity or expediency existed." (Emphasis added). Fleischers's obligation arose "as soon as liability exists or is asserted against [F & D], whether or not [F & D] shall have made any payment therefor."
Such provisions, while strict, are common in indemnity contracts executed by contractors and others to induce the execution of bonds by compensated sureties. Fidelity and Deposit Co. of Maryland v. Bristol Steel & Iron Works, Inc., 722 F.2d 1160, 1163 (4th Cir.1983). See also Maryland Casualty Co. v. Spitcaufsky, 352 Mo. 547, 178 S.W.2d 368, 371 (1944). They have been uniformly sustained and upheld. The only exception arises when the payment has been made through fraud or lack of good faith on the part of the surety. Bristol Steel, supra at 1163.
Under the Agreement of Indemnity, the burden was not placed on F & D to determine whether owner or contractor first breached the contract. Rather, once owner or the subcontractors made demand on F & D under the bonds, F & D could make good faith disbursements if it believed it was liable, or if it believed disbursement was *816 necessary or expedient, "whether or not such liability, necessity or expediency existed."
The Agreement of Indemnity did not leave Fleischers without a means to prevent such payments. Paragraph Thirteenth provided that F & D's right to settle claims could be terminated if Fleischers (1) requested F & D to litigate the claims and (2) at the time of the request, deposited collateral with F & D to satisfy any judgments and expenses. Nothing in the record suggests that Fleischers requested F & D to litigate the claims. Further, Fleischers admit that they did not deposit any collateral even after F & D requested that they do so.
Thus, Fleischers opted to not take advantage of these provisions of paragraph Thirteenth. As a result, under the provisions of paragraphs Second and Thirteenth, F & D had the right to settle any claim in good faith whether or not liability, necessity or expediency existed.
Instruction No. 9(c)
Instruction No. 9, paragraph (c) allowed the jury to return a verdict in favor of Fleischers on F & D's claim if the "Fleischers agreed in the indemnity to reimburse [F & D] only if [F & D] was liable for losses and [F & D] was not liable for losses." The Agreement of Indemnity provided no basis for this submission; its language was to the contrary.
This instruction would permit reimbursement only if F & D "was liable" for the losses. The Agreement of Indemnity between the parties did not so restrict Fleischers's obligations to F & D. As noted, paragraph Second of the indemnity agreement allows F & D to charge Fleischers "for any and all disbursements made by it in good faith ... under the belief ... that it was necessary or expedient to make such disbursements, whether or not such liability, necessity or expediency existed." F & D's right to reimbursement is not dependent upon a determination that it was, in fact and in law, liable for losses under the bonds.
In Central Surety & Insurance Corp. v. Hinton, 233 Mo.App. 1218, 130 S.W.2d 235 (1939), Hinton had signed an indemnity agreement in order to post a bond necessary to do excavation work. The surety settled the underlying case before trial; in that case, the claimant alleged she was injured at the excavation site. The trial court found that there was no negligence on Hinton's part; and thus, the claimant would have lost her case.
The Hinton indemnity agreement contained language similar to that signed by Fleischers. Hinton agreed that the surety was entitled to reimbursement for any amounts "made by it in good faith under the belief that it is or was liable for the sums and amounts so disbursed, or that it was necessary or expedient to make such disbursements, whether such liability, necessity or expediency exists or not." Id. 130 S.W.2d at 241.
In Hinton, a case now 50 years old, the court commented that "[s]imilar provisions have been before the courts of this country many times." Id. The court recognized that the agreement "is very general in its terms and broad enough to cover mistakes of law." Id. 130 S.W.2d at 242. As a result, the court concluded that there was "no reason why the agreement should not be construed as applying to a mistake of law made in good faith by the surety in making the disbursement." Id.
The Hinton court recognized that in the majority of settlements of claims, it is necessary to reach a conclusion as to matters of law involved therein. The court went on to say that "there is no good reason why conclusions upon such questions of law should not be covered by the term `good faith' as well as conclusions as to purely matters of fact." Id. 130 S.W.2d at 243.[2]
Our position is also supported by Maryland Casualty Co. v. Spitcaufsky, 352 Mo. 547, 178 S.W.2d 368 (1944), which involved *817 a suit by a surety company against the indemnitors. The court observed that the surety "was under no necessity to require its liability to be fixed by final judgment" before it acted. "The indemnity agreement authorized [the surety] to make settlement if it deemed itself liable, whether or not such liability in fact existed, and authorized it to make settlement without even notifying [the indemnitors]." Id. 178 S.W.2d at 371.
In Spitcaufsky, the indemnitors tendered instructions which said that if the surety settled the claims before its liability had become fixed, or knowing facts which would establish no liability, the verdict must be for the indemnitors. Id. The court held that the instructions were properly refused, because they "were not based upon the evidence and did not correctly declare the law as applied to the evidence." Id. 178 S.W.2d at 372.
Fleischers contend that this court should not follow Hinton, rather we should follow Maryland Casualty Co. v. Zahner, 190 S.W.2d 996 (Mo.App.E.D.1945). They contend in their brief that "[T]he key factual issue was whether or not [owner] had breached its contract with Fleischer by failing to make required progress payments and by failing to provide final plans and specifications and change order approvals." Their position is that the bonds became void if owner did not strictly perform its obligations. Since owner did not perform its obligations, they contend, F & D had no liability for losses under the bond, and "F & D acted as a `volunteer' and paid a claim which the `bonds' did not cover."
Zahner is not applicable and does not support the giving of instruction 9(c). In Zahner, an assault claim was improperly paid under a larceny and embezzlement bond. Here, the bonds were in favor of this owner for this project, and construction claims were paid under bonds for construction of this specific project. The amounts paid were not "voluntary payments." The giving of instruction 9(c) was prejudicially erroneous; and thus, a new trial is granted.
Since a new trial is granted, we will briefly review some of the other issues raised on appeal which might reoccur at trial.
Instruction No. 9(a) and (b)
Instruction 9(a) would permit the jury to return a verdict in favor of Fleischers on F & D's claim if "the bonds were void as to [owner] and ... the contractors were to be paid only from funds supplied by [owner]."
In order to determine that "the bonds were void as to [owner]", it would be necessary to litigate whether owner breached the contract with contractor, or whether contractor breached the contract. Such litigation, as between F & D and indemnitors, is not required under the indemnity agreement in order for F & D to seek reimbursement from Fleischers. As noted, absent Fleischers's request to litigate and posting of collateral as provided in paragraph Thirteenth of the Agreement of Indemnity, paragraph Second allows F & D to charge for all disbursements made by it in good faith.
The same rule applies to the instructional clause, "the contractors were to be paid only from funds supplied by [owner]." The submission of paragraph 9(a) was erroneous, and on retrial, paragraph (a) should not be submitted.
As to paragraph (b), it submitted that the "payments were not made in good faith". On retrial, if Fleischers desire to converse F & D's good faith, a true converse instruction based on MAI 33.03 [1980 Revision] would be appropriate. Notes on Use to MAI 33.05 [1980 Revision], however, direct that an affirmative converse instruction should not be used to submit the same issue as has already been submitted in the verdict directing instruction.
Remaining Issues
A. Failure to Direct Verdict
F & D alleges that the trial court erred in not directing a verdict in its favor on its claim because F & D established that it "is entitled to recover for all disbursements made in good faith and good faith was established as a matter of law." We *818 disagree that good faith was established as a matter of law as to all disbursements.
The Fleischers, however, did not dispute at trial that the subcontractors were owed much of what they claimed as of April 9, 1986, and what F & D thereafter paid them. The Fleischers only claimed that such amounts were not due, because contractor had not been paid by owner. F & D's labor and material payment bond, however, provided that the bond remained in full force and effect if contractor did not promptly pay "for all labor and material used or reasonably required for use in the performance of the contract."
Absent the invocation of Fleischers's rights under paragraph Thirteenth of the Indemnity Agreement, F & D had the right to settle those claims. There was no issue of good faith as to such subcontractors and the uncontested amounts paid to them. It would not have been error for the trial court to have entered a partial summary judgment, based on those amounts, in favor of F & D.
As to other payments, Fleischers contend that they were not made in good faith for various reasons. Whether the other payments were made in good faith is a question for the trier of the fact. Hinton, supra 130 S.W.2d at 243.
B. Exclusion of Good Faith Evidence
F & D also complains that the trial court erred in excluding evidence which formed a basis to establish F & D's good faith. A trial court has considerable discretion in deciding whether to admit or exclude evidence, but it is error to exclude competent evidence on a material issue of fact. Martin v. Fulton Iron Works Co., 640 S.W. 491, 495 (Mo.App.E.D.1982). On retrial, we are confident that the trial court will not exclude properly submitted competent evidence on the issue of good faith.
C. Fleischers's Verdict Director
Fleischers filed a cross-claim against F & D; three countsbreach of contract, civil conspiracy, and tortious interference with contractwere submitted to the jury. The jury returned a $150,000 verdict for Fleischers on the breach of contract count; F & D received verdicts on the other two counts.
Fleischers's breach of contract count alleged that (1) they paid F & D "to enter into two contracts" with them; the contracts are identified as the performance bond and the labor and material payment bond and the riders thereto; (2) the riders provide that neither Fleischers or F & D have any liability unless owner makes payments to contractor and owner performs all its obligations; (3) two work stoppages occurred because owner had not performed its obligations or made stipulated payments; (4) F & D "violated the terms of the contracts it had with Fleischer ... by setting [sicsettling?] supposed claims against it by [owner] through a settlement agreement;" (5) F & D's claims have prevented contractor from receiving payments due contractor from other unrelated jobs; (6) other insurance companies will not write bonds for contractor because of F & D's claims against them and they have been effectively excluded from the construction business, resulting in the loss of large profits; and (7) contractor has incurred substantial legal fees and its personnel have lost time.
F & D alleges that the trial court committed several errors in giving Fleischers's submitted verdict director for breach of contract. We need not discuss them in detail. As disclosed by Fleischers's pleading, Fleischers's theory was that F & D had breached its contract (the bonds with riders) with indemnitors by settling owner's claims against contractor.
We have previously set forth at length why F & D was authorized, under paragraphs Second and Thirteenth of the Agreement of Indemnity, to settle owner's and subcontractors's claims. Since the Agreement of Indemnity specifically gave F & D authority to settle such claims, there can be no breach of contract for doing that which the indemnity agreement permitted a party to do, providing such settlement did not involve fraud or a lack of good faith on F & D's part.
*819 Thus, if Fleischers are successful in defending F & D's claim for reimbursement, it would be logical and consistent for Fleischers to pursue a breach of contract claim against F & D based on F & D's fraud or lack of good faith. A jury verdict for Fleischers on F & D's claim for reimbursement and a jury verdict for Fleischers on their breach of contract claim against F & D would be consistent and permissible.
If, however, F & D recovers on its claim, the jury, of necessity, would have determined that there was no fraud or lack of good faith on F & D's part. With such a result, it would be illogical and inconsistent for a jury to also award damages to Fleischers on their breach of contract claim, and such a verdict would be impermissible.
Here, on F & D's claim for reimbursement, the jury was misdirected by the giving of instruction 9(a) and (c). Since the new trial is required on F & D's claim for reimbursement, a new trial is mandated on Fleischers's breach of contract claim. Otherwise, it could be argued that a jury, having awarded Fleischers damages on their breach of contract claim, is precluded from considering F & D's claim.
Fleischers's Cross-Appeal
On Fleischers's civil conspiracy count, as noted above, the jury found in favor of F & D. In their motion for new trial, Fleischer's sole ground was that the verdict was "against the weight of the evidence."
In their cross-appeal, Fleischers now contend that the trial court erred in not granting them a new trial because "Fleischer was entitled to a verdict as a matter of law, based on undisputed facts, once it had been determined that F & D breached its contractual obligations to Fleischer."
This cross-appeal is denied. The setting aside of a verdict as against the weight of the evidence is solely within the prerogative of a trial court and is not reviewable on appeal. Wright v. Martin, 674 S.W.2d 238, 242 (Mo.App.S.D.1984). Apparently in recognition of this rule, Fleischers framed the point relied on as previously quoted. An appellant, however, may not present on appeal a different point than the one presented to the trial court. McNabb v. Winkelmann, 661 S.W.2d 825, 826 (Mo. App.E.D.1983).
Conclusion
For the reasons previously given, the judgment of the trial court (1) in favor of Fleischers on F & D's cross-claim is reversed and remanded for a new trial; (2) in favor of Fleischers on their breach of contract cross-claim against F & D is reversed and remanded for a new trial; and (3) in favor of F & D on Fleischer's civil conspiracy cross-claim is affirmed.
GARY M. GAERTNER and KAROHL, JJ., concur.
NOTES
[1] At the time of trial, arbitration between contractor and owner was still pending.
[2] As all who have drafted either proposed or actual findings of facts and conclusions of law can attest, as to some issues, it is often difficult, if not impossible, to determine what is a finding of fact and what is a conclusion of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568906/ | 574 S.W.2d 628 (1978)
R. F. WINSTON et al., Appellants,
v.
LAKE JACKSON BANK, Appellee.
No. 1897.
Court of Civil Appeals of Texas, Houston (14th Dist.).
November 22, 1978.
Thomas Osa Harris, Harris & Rea, Houston, for appellants.
W. Edwin Denman, Wommack, Denman & Hardin, Lake Jackson, for appellee.
CIRE, Justice.
This is an appeal from a summary judgment rendered in favor of Lake Jackson Bank ("the Bank") on a promissory note endorsed by appellants Robert F. and Christine Winston.
Appellants urge that it was error to render a summary judgment because there was evidence raising a fact issue as to whether the bank officers breached a fiduciary duty in failing to inform them that by endorsing the note in their individual capacities they were incurring individual liability under sections 3.401 and 3.403 of the Texas Business and Commerce Code.
The note in question was the last in a series of notes executed by R. F. Winston and Associates, Inc., a corporation formed in 1962 by appellant, Robert Winston. The note was secured by a security interest in an "Engineer Program" and was signed by Mr. Winston as agent for the corporation. On the reverse side, the note was endorsed by both Robert and Christine Winston individually at the request of the bank officer.
Appellee moved for a summary judgment, producing the note and an affidavit from the bank president as evidence. In opposing the motion appellants submitted their own affidavits and pleadings wherein they attempted to raise a fact issue with regard to a fiduciary relationship with the bank. This consisted primarily of the following representations: that there had been "extensive prior dealings" between appellants, individually and as a corporation, and the Bank; that Mr. Waltrip, the bank president, had been the financial advisor to both Mr. Winston and the corporation; and that there had been a series of prior corporate notes resulting in an "understanding" that the liability was to be corporate only.
*629 It is true that a fiduciary relationship may arise from informal moral, social, domestic, or personal dealings as well as from technical relationships such as attorney-client. Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948). We do not feel, however, that there is any evidence here to show such justifiable trust and confidence as would create a fiduciary relationship. Other than the general claims of "extensive prior dealings", appellants allege no specific facts which may be said to demonstrate a fiduciary relationship. As the Texas Supreme Court stated in Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.Sup.1962):
We may assume that respondents did trust Mr. Thigpen; they have testified so time and time again, but mere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship so as to avoid the statute of frauds. Businessmen generally do trust one another, and their dealings are frequently characterized by cordiality of the kind testified to here. If we should permit respondents to set aside their conveyances on such slender evidence, the security of contracts and conveyances in this state would be seriously jeopardized.
Appellants themselves contend that a fiduciary relationship exists where one party is justified in placing confidence in the belief that the other party will act in its interest. Thigpen v. Locke, supra, at 253. Here the evidence shows that appellants had secured a number of loans from the bank and that a debtor-creditor relationship had existed between them for several years. The Supreme Court held in the Thigpen case that "respondents do not testify to factsother than their own subjective feelings which show that their relationship... was anything more than a debtor-creditor relationship." 363 S.W.2d at 253. Accordingly, appellants were not justified in assuming that the Bank would act in their interest.
Appellants further urge that the superior understanding by the Bank of the legal effect of the endorsements raised some sort of duty to explain the legal ramifications thereof. According to appellants, the fact that the personal endorsement will create individual liability is not apparent to a layman. The law is that where no fraud is involved, "a party is charged with having known the legal effect of a contract voluntarily made." Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834, 838 (Tex. Sup.1968).
Finally, appellants contend that the bank officer who instructed Christine Winston to endorse the note effectively misrepresented the purpose and effect of her endorsement. It is argued that his statement that the signature was "primarily to satisfy the bank examiners" gave the impression that the endorsements were mere formalities rather than legally binding acts. We do not construe this statement as a representation of no personal liability. On the contrary, the bank officer had the right to assume the person with whom he was dealing had customary business understanding and knew the effect of a personal endorsement. His statement to Mrs. Winston in no way misrepresented the facts concerning her liability.
The Bank demonstrated as a matter of law that it was entitled to a summary judgment. Since appellants failed to show the existence of a fact issue with respect to their affirmative defense of fiduciary relationship, we affirm the judgment of the trial court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568899/ | 772 S.W.2d 159 (1989)
Michael James HAIGHT, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 05-88-00538, 05-88-00539-CR.
Court of Appeals of Texas, Dallas.
April 20, 1989.
Rehearing Denied May 31, 1989.
Discretionary Review Refused September 20, 1989.
*160 Ross Teter, Dallas, for appellant.
Karen R. Wise, Dallas, for appellee.
Before HOWELL, LAGARDE and WHITTINGTON, JJ.
LAGARDE, Justice.
In each of these cases, appellant's motion for leave to file appellant's brief on appeal by and through attorney at law, Ross Teter, is granted. In so doing, we express no opinion as to whether Teter is appointed counsel for appellant on appeal. Accordingly, appellant's tendered briefs are ordered filed as of August 24, 1988, the file date marked thereon.
On May 7, 1987, appellant, Michael James Haight, pursuant to a plea bargain agreement in trial cause number F87-78754-JI (appellate cause number 05-88-00538-CR),[1] pleaded guilty before the trial court to the offense of unauthorized use of a motor vehicle committed in Dallas County, Texas on February 20, 1987. Adjudication was deferred, and appellant was put on probation for three years. Three days later, on May 10, 1987, appellant was arrested for a second offense of unauthorized use of a motor vehicle and charged with that offense under trial cause number F87-80962-SI (appellate cause number 05-88-00539-CR).
On May 26, 1987, in trial cause number F87-78754-JI, the State filed a motion to proceed with adjudication based on appellant's failure to report and failure to pay probation fees. On July 23, 1987, the trial court granted the State's motion to withdraw its motion to proceed to an adjudication of guilt in trial cause number F87-78754-JI. Further, on July 23, 1987, pursuant to a plea bargain agreement in trial cause number F87-80962-SI, appellant pleaded guilty before the court to the May 10, 1987 offense. Adjudication was again deferred, and appellant was put on probation for three years. On October 15, 1987, the State filed a motion to proceed with an adjudication of guilt in trial cause numbers F87-78754-JI and F87-80962-SI.
On January 28, 1988, the State filed an amended motion to proceed with adjudication in trial cause number F87-78754-JI. On that same date, appellant pleaded untrue[2] to the allegations contained in the State's motion to adjudicate in each case. After a hearing, the trial court adjudicated appellant's guilt and sentenced him to ten years in the Texas Department of Corrections and assessed a $1,000 fine in each *161 case.[3] Appellant timely filed a motion for new trial in each cause alleging, inter alia, that his "plea of guilty, waiver of jury and judicial confession were involuntary and insufficient to support a conviction because they resulted from the failure of Defendant's counsel to render effective legal assistance as required by the Sixth and Fourteenth Amendments to the United States Constitution." In support of the contentions in his motion for new trial, appellant alleged facts extrinsic to the record and specifically requested an evidentiary hearing.
At the conclusion of the motion for new trial, the following appears:
AFFIDAVIT
(Pursuant to Title 28, United States Code, Section 1746)
I, the undersigned, being presently incarcerated in a penal institution, do hereby declare under oath and penalty of perjury that the facts, statements and allegations set forth in the foregoing Motion for New Trial are within my personal knowledge and are true and correct.
Executed on this 26th day of February, 1988.
/s/ Michael Haight
Defendant
__________________
TDC Number (if applicable)
__________________
TDC Unit (or jail)
__________________
City, State, Zip
In trial cause number F87-80962-SI, the trial court denied the motion without a hearing. In trial cause number F87-78754-JI, the motion was overruled as a matter of law without a hearing.[4]
In his fourth point of error, appellant complains that the trial court erred in denying his motion for new trial without a hearing. For the reasons that follow, we sustain appellant's fourth point of error and remand this cause to the trial court for further proceedings.
Initially, we conclude that the affidavit as executed, although deficient, substantially complies with the form prescribed by section 132.002 of the Texas Civil Practice and Remedies Code.[5]See McMillan v. State, 769 S.W.2d 675, 677 (Tex.App.Dallas 1989, n.p.h.); Owens v. State, 763 S.W.2d 489, 490-91 (Tex.App.Dallas 1988, pet. pending). Having presented to the trial court a timely verified motion for a new trial raising matters extrinsic to the record, appellant was entitled to an evidentiary hearing. The trial court, therefore, abused its discretion in denying a hearing on the motion. See McIntire v. State, 698 *162 S.W.2d 652, 658-60 (Tex.Crim.App.1985); Fielding v. State, 719 S.W.2d 361, 364 (Tex.App.Dallas 1986, pet. ref'd); see also Green v. State, 754 S.W.2d 687, 688 (Tex.Crim.App.1988). We conclude that by denying appellant a hearing on his motion for new trial, the trial court abdicated its fact-finding function and thereby impaired appellant's right of appeal. See Owens, 763 S.W.2d at 492. We sustain appellant's fourth point of error.
Having determined that the trial court abused its discretion in denying appellant a hearing on his motion for new trial, we remand these cases, pursuant to rule 81(a) of the Texas Rules of Appellate Procedure, to the trial court to allow it to correct its error by conducting a motion for new trial hearing. Accordingly, in each case, we set aside the notice of appeal and the trial court's order denying appellant's motion for new trial. We fully recognize that the "1981 amendment to Article 42.02[6]... had the effect of unifying the judgment and sentence" and that "[t]he sentence is now an integral part of the judgment," Stokes v. State, 688 S.W.2d 539, 541 (Tex. Crim.App.1985); thus, we set aside only the imposition of sentence portion of the final judgment. The sentence can be re-imposed by the trial court following the hearing if the trial court again denies appellant's motion for new trial. Appellant's right of appeal and the appellate timetable attendant thereto are thereby preserved. Of course, if the trial court grants the motion for new trial, re-imposition of sentence is not required. We conclude this is a better procedure than suspension of the rules pursuant to rule 2(b) of the Texas Rules of Appellate Procedure, see McMillan v. State, at 677, in light of that rule's limitations. See TEX.R.APP.P. 2(a).
NOTES
[1] In its brief, the State shows appellate cause number 05-88-00539-CR to be an appeal from trial court number F87-78754-JI; however, the record reflects that appellate cause number 05-88-00539-CR is an appeal from trial court number F87-80962-SI and appellate cause number 05-88-00538-CR is an appeal from trial cause number F87-78754-JI.
[2] Appellant tells us in his brief that he pleaded true; however, the record reflects that he entered a plea of untrue.
[3] The record reflects that in trial cause number F87-78754-JI, the trial court's order of probation without adjudication of guilt erroneously reflects that appellant was indicted for, and that the evidence submitted substantiated appellant's guilt of, the offense of theft of property of the value of $750 or more but less than $20,000. Likewise, the trial court's judgment adjudicating guilt and the sentence in trial cause number F87-78754-JI reflect that appellant was convicted of the offense of theft of property of the value of $750 or more but less than $20,000. The indictment in trial cause number F87-78754-JI reflects that appellant was actually indicted for unauthorized use of a motor vehicle (UUMV), and the State's motions to adjudicate correctly reflect the UUMV offense. Where, as here, this Court has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal. Banks v. State, 708 S.W.2d 460, 462 (Tex.Crim. App.1986); Martinez v. State, 634 S.W.2d 929, 939 (Tex.App.San Antonio 1982, pet. ref'd), citing Joles v. State, 563 S.W.2d 619, 622 (Tex. Crim.App.1978) and Vasquez v. State, 477 S.W.2d 629, 635 (Tex.Crim.App.1972).
Therefore, pursuant to our authority under rule 80(b) of Texas Rules of Appellate Procedure (formerly article 44.24 of the Texas Code of Criminal Procedure), we reform the trial court's order of probation without adjudication of guilt, the judgment adjudicating guilt and the sentence in trial cause number F87-78754-JI to correctly reflect the UUMV offense.
[4] Under Texas Rule of Appellate Procedure 31(c)(1), the accused must present the motion for new trial to the trial court within ten days after filing it unless the trial judge permits the motion to be presented and heard within seventy-five days from the date sentence is imposed or suspended. The record is unclear as to whether presentment was made, and the State fails to address this point in its brief. Thus, we will not consider the presentment issue.
[5] TEX.CIV.PRAC. & REM.CODE ANN. § 132.001, 132.002, 132.003 (Vernon Supp.1989).
[6] Article 42.02 reads: "The sentence is that part of the judgment ... that orders that the punishment be carried into execution in the manner prescribed by law." TEX.CODE CRIM.PROC. ANN. art. 42.02 (Vernon Supp.1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568900/ | 29 So. 3d 1155 (2010)
Athena F. GRAINGER, as personal representative of the Estate of Samuel Gus Felos, Appellant,
v.
Howard B. WALD, Jr., Appellee.
No. 1D09-0765.
District Court of Appeal of Florida, First District.
February 12, 2010.
Rehearing Denied March 22, 2010.
*1156 Rhonda B. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellant.
S. Perry Penland, Jr. of S. Perry Penland, Jr. P.A., Jacksonville, for Appellee.
HAWKES, C.J.
Appellant serves as the personal representative of the estate of Samuel Gus Felos. As personal representative, she challenges the denial of her petition to strike a claim filed against the estate by Wald as untimely under section 733.702(1), Florida Statutes (2009). The probate court denied the petition, finding the time constraints of section 733.702(1) inapplicable because the notice to creditors was improperly served on Wald. We find this reasoning without statutory support and, therefore, reverse.
Wald was involved in an automobile/motorcycle accident with the decedent and brought a personal injury lawsuit to recover damages. Wald eventually prevailed in his lawsuit, but the judgment was not rendered until after the decedent's death. Some time after obtaining the judgment, Wald filed a claim against the probate estate.
In response, the personal representative filed a petition to dismiss the claim. The personal representative argued Wald's claim was untimely as it was not filed within the statute of limitations established in section 733.702(1). This provision states all claims against a decedent's estate arising *1157 before the decedent's death[1] must be filed either within three months of publication of the notice to creditors or 30 days after personal service of the notice upon the creditor. The personal representative argued she had served notice on Wald's attorney as required by Florida Probate Rule 5.041(b) (2009) on May 23, 2007, thus triggering the time constraints of section 733.702(1). Therefore, under the statute, Wald had until June 22, 2007, to file any claim he might have. Since Wald's claim was not filed until July 2, 2007, the personal representative argued it was untimely and forever barred.
The probate court rejected this argument. It found service of the notice was ineffective because it was served upon Wald's "personal injury" attorney, rather than upon his "probate" attorney. The court went on to reason that because service of the notice was ineffective, Wald's claim was not governed by the 30-day time constraint of section 733.702(1). Since the claim was not constrained by the 30-day claim period, the court denied the personal representative's petition to strike the claim as untimely. This appeal followed.
There are two reasons why the probate court erred in finding the time constraints of section 733.702(1) inapplicable.
First, the Florida Probate Rules do not make any distinction based on the scope of an attorney's representation of a client. A personal representative would have no way of knowing such information. These descriptive labels, such as "probate" attorney or "personal injury" attorney do not appear in the Rule 5.041(b), which governs the service of pleadings and papers in probate actions. Instead, the Rule simply requires that if a creditor is represented by an attorney, service must be on the attorney and not on the creditor. The language of Rule 5.041(b) states that "when service is required or permitted to be made on an interested person represented by an attorney, service shall be made on the attorney unless service on the interested person is ordered by the court." (emphasis added).
Given the foregoing, it seems bizarre to declare service invalid simply because the attorney who was served later claims he is not the "probate" attorney but the "personal injury" attorney. This not only adds terms and conditions not found in the Rule, but also puts the Rule at odds with section 733.702(4). If this interpretation of the Rule were correct, a personal representative wishing to impose or rely on the statutory 30-day claim period would be frustrated if one of the estate's creditors were represented by an attorney. This is so because, at any time, the creditor would have the option of retaining additional counsel and labeling that attorney as the "probate attorney," thereby rendering the estate's service void and avoiding the 30-day claim period. The personal representative would have no way of knowing whether service was obtained because he would not know if additional counsel, appropriately labeled, would be later retained. To have certainty, the personal representative would have no alternative but to ignore the mandates of the Rule and serve the creditor directly to achieve the benefits of the statute.
This case serves as an illustration. At the time that notice was served, Wald had representation. Wald's attorney had handled his entire "personal injury" claim and was familiar with every aspect of the *1158 claim.[2] No other attorney was involved on Wald's behalf. The notice was served on the attorney and contained the warning that that any probate claim was to be filed within 30 days or be forever barred. Wald argues his tardiness should be overlooked because he had not labeled the attorney as his "probate attorney." Semantics should not be allowed to render Rules meaningless and statutes uncertain. The time constraints contained in section 733.702(1) are important and should not be skirted by legal gamesmanship. See Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009).
Second, regardless of whether the attorney served was labeled the "probate" or the "personal injury" attorney, the record reflects that Wald had actual notice and that he received notice in time to file the claim. Wald received all process that was due. The record contains Wald's original statement of claim against the estate. Although the claim was not filed until July 2, 2007, Wald signed the claim on June 16, 2007 at least six days before the time for filing claims was to expire. "[D]ue process requires the personal representative to give notice by any means that is certain to ensure actual notice of the running of the non-claim period." Estate of Ortolano, 766 So. 2d 330, 332 (Fla. 4th DCA 2000) (emphasis added). Considering the date of Wald's signature, he had actual notice and sufficient time to file a claim within the 30-day statute of limitations. Therefore, any failure was not in the service of the notice, but in the untimely filing of the claim. Since there was no excuse for Wald's failure to file the claim in a timely manner, it should have been declared time barred under section 733.702(1).
The probate court erred in denying Grainger's petition for an order striking the probate claim as untimely. This matter is REVERSED and REMANDED for proceedings consistent with this opinion.
THOMAS, J., concurs; BENTON, J., dissents with opinion.
BENTON, J., dissenting.
I respectfully dissent. Florida Rule of Appellate Procedure 9.110, which governs "Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases," applies to "proceedings" that "seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code." Fla. R.App. P. 9.110(a)(2) (emphasis supplied). Denial of the petition Athena F. Grainger filed, as personal representative of the estate of Samuel Gus Felos, to strike Howard B. Wald's claim against the estate (as untimely) is not an appealable order. Because the order under review does not "finally determine a right or obligation," Fla. R.App. P. 9.110(a)(2), the appeal should be dismissed.
In a separate lawsuit brought against Mr. Felos while he was still alive, Mr. Wald sought to recover for injuries he suffered in an automobile accident. After Mr. Felos died, his estate was substituted as a party defendant in Mr. Wald's personal injury case. The personal injury case resulted in an adverse judgment for more than one million dollars, and the estate appealed the judgment to this court, which reversed and remanded for a new trial. The supreme court has since granted review *1159 of our decision in the personal injury case. See Grainger v. Wald, 982 So. 2d 42 (Fla. 1st DCA 2008), rev. granted, 11 So. 3d 943 (Fla.2009). Whether the estate will ultimately be indebted to Mr. Wald is now for our supreme court to say, and remains to be finally determined.
The order on appeal in the present case finally determines no right or obligation of the estate as judgment debtor or of Ms. Grainger as personal representative. Mr. Wald's statement of claim, which the order under review declined to strike, is expressly predicated, not on the previously unadjudicated cause of action for injuries sustained in the automobile accident, but on a "jury verdict and Final Judgment" in the personal injury case, which had been entered against the estate before the filing deadline asserted in the probate case ran.
We have jurisdiction to review orders denying petitions to strike claims only where they finally determine a right or obligation of an interested person. See Strulowitz v. Cadle Co., II, 839 So. 2d 876 (Fla. 4th DCA 2003) (reviewing probate order denying petition to strike claim); Lewsadder v. Estate of Lewsadder, 757 So. 2d 1221 (Fla. 4th DCA 2000) (same); Estate of Shearer ex rel. Shearer v. Agency for Health Care Admin., 737 So. 2d 1229 (Fla. 5th DCA 1999) (same). We reversed an order granting a creditor an extension of time to file a claim against the estate in In re Estate of Elliott, 798 So. 2d 13, 17 (Fla. 1st DCA 2001), reasoning that the personal representative was an interested person under Florida Rule of Appellate Procedure 9.110(a)(2), and that the extension order finally determined a right of the personal representative, because its effect was to deprive her of the ability to preclude litigation of the claim.[*]Id. at 14-15. As in Elliott, the personal representative here is an interested person under Rule 9.110(a)(2), and the order under review in the present case, like the order reviewed in Elliott, purported to determine whether the personal representative could foreclose a claim as untimely for failure to file within the 30-day period for filing claims. See § 733.702(1), Fla. Stat. (2006). See also Smoak v. Graham, 167 So. 2d 559, 561 (Fla.1964).
In the present case, however, the judgment entered against the estate after Mr. Felos died cannot be deemed a "claim or demand against the decedent's estate that arose before the death of the decedent." § 733.702(1), Florida Statutes (2006). The posthumous judgment against the estate, entered before the putative deadline for statements of claim passed, is the only basis stated for Mr. Wald's claim. Upon his death, Mr. Felos's estate had been substituted as a party in the personal injury case Mr. Wald brought against him. Mr. Wald is a judgment creditor of the estate, not of the decedent.
The personal representative was without power to insulate the estate from a judgment against it by deeming untimely underlying claims after they had merged into the judgment. Denial of the petition to strike a claim predicated on the judgment does not alter the estate's legal position.
The appeal should be dismissed.
NOTES
[1] Section 733.702(1) includes all claims within its scope, "even if the claims are unmatured, contingent or unliquidated."
[2] Filing a probate claim is a relatively simple act and requires nothing more than submitting a written statement of the case. If for some reason Wald's attorney was unable to file the claim, he certainly could have referred Wald to another attorney or advised Wald about the need to timely file a claim. Wald's attorney failed to accomplish this simple task.
[*] We said that if the personal representative were not able to appeal the order at that time, she would never be able to do so. In re Estate of Elliott, 798 So. 2d 13, 15 (Fla. 1st DCA 2001). The Elliott opinion cited Smoak v. Graham, 167 So. 2d 559, 561 (Fla. 1964), where our supreme court found an order denying a petition for payment of a claim final and appealable, holding that "the judicial labor of the probate court is complete . . . at the point when recourse to suit in another court or defense of such independent action is required as a condition to any further consideration of the claim in probate." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568915/ | 574 S.W.2d 103 (1978)
Michael Leroy THOMPSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 55444.
Court of Criminal Appeals of Texas, Panel No. 2.
December 6, 1978.
Harris E. Lofthus, Amarillo, for appellant.
*104 Randall L. Sherrod, Dist. Atty., and Richard L. Wilcox, Asst. Dist. Atty., Canyon, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
OPINION
PHILLIPS, Judge.
This is an appeal from a conviction for criminal trespass. Appellant was found guilty by the jury, and his punishment was assessed by the Court at 270 days in jail and a fine of $500.00.
Appellant was tried with his co-defendants Douglas Mark West and Dewayne Timothy West. The pertinent facts of appellant's case are identical to those of his co-defendants Douglas Mark West and Dewayne Timothy West, whose appeals were decided by this Court on June 28, 1978, in an opinion by Judge Odom, West v. State, 567 S.W.2d 515, and on November 1, 1978, in an opinion by Judge Roberts, 572 S.W.2d 712 (No. 54,962), respectively. The holding in these prior cases controls the disposition of this case.
We are confronted at the outset with fundamental error in the jury charge that requires reversal in the interest of justice. Article 40.09(13), V.A.C.C.P.
The complaint and information charged that appellant did:
"... intentionally and knowingly enter and remain in a habitation, without the effective consent of Gail Maureen West, the owner thereof, the said MICHAEL LEROY THOMPSON having notice the entry was forbidden, ...."
In applying the law to the facts in the jury instructions the court charged:
"Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendants, DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST and MICHAEL LEROY THOMPSON on or about the 9th day of April, 1976, in the County of Randall and State of Texas, did then and there unlawfully enter and remain in a habitation, without the effective consent of the said GAIL MAUREEN WEST, the owner, and the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST, and MICHAEL LEROY THOMPSON had received notice that the entry was forbidden, then you will find the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST and MICHAEL LEROY THOMPSON guilty as charged, but if you do not so find, or have a reasonable doubt thereof, you will find the defendant not guilty."
The indictment here properly alleged the culpable mental element of the offense; the charge to the jury, however, omitted this element of the offense. Failure to include in the jury charge all essential elements of the offense as alleged in the indictment constitutes fundamental error. Shaw v. State, Tex.Cr.App., 557 S.W.2d 305; Peoples v. State, Tex.Cr.App., 548 S.W.2d 893; Long v. State, Tex.Cr.App., 548 S.W.2d 897.
The judgment is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568912/ | 574 S.W.2d 65 (1978)
Ollie B. COLLORA, Petitioner,
v.
Franklin R. NAVARRO, Respondent.
No. B-7622.
Supreme Court of Texas.
November 29, 1978.
*66 Houston C. Munson, Jr., Gonzales, for petitioner.
Don Blansitt, Schulenburg, for intervenors.
Michael W. Melton, Schlanger, Cook, Cohn & Mills, Joel W. Cook, Houston, for respondent.
SAM D. JOHNSON, Justice.
The question presented for our decision in this case is a narrow one. The substantive legal issue is whether or not a directed verdict may be based on the uncontradicted testimony of a party to the lawsuit. To pose the question in its precise factual context, did the testimony of Ollie Collora, plaintiff below and petitioner here, establish as a matter of law one element (i. e., a present agreement to be husband and wife) of a common-law marriage between herself and Joe Collora when the other elements of such a marriage were conclusively proven by evidence other than her testimony? The trial court ruled in favor of Mrs. Collora by granting her motion for directed verdict. The court of civil appeals, with one member dissenting, reversed and remanded the cause. 566 S.W.2d 304. We agree with the action of the trial court and accordingly reverse the judgment of the court of civil appeals, but for reasons stated below, remand the cause to the trial court for rendition of a proper judgment.
*67 Ollie Collora filed this suit against Franklin Navarro, defendant below and respondent here, in 1971 for partition of a 68.5-acre farm in Lavaca County, Texas. She alleged that she had an undivided one half interest in the farm by virtue of her common-law marriage to Joe Collora, who originally purchased the land in his name only and later attempted to transfer it to Camille Corporation, predecessor-in-title to respondent Navarro. The children of Joe and Ollie Collora intervened in the case on the side of Mrs. Collora, arguing that the transfer of land was fraudulently induced. They requested that a constructive trust be imposed on the land in their favor. At the close of the evidence, the trial court directed a verdict in favor of both Mrs. Collora and the children intervenors. Navarro appealed.
The court of civil appeals in its original opinion upheld the judgment in favor of Mrs. Collora. On rehearing, however, the court reversed the directed verdicts as to the children intervenors and Mrs. Collora and remanded both causes to the trial court. 566 S.W.2d 304. One member of the court dissented from the reversal as it related to Mrs. Collora. 566 S.W.2d 304 at 312-14. The children intervenors have not appealed from that decision and are therefore not now before this court. Only Mrs. Collora has appealed.[1] She bases her appeal on the argument that the court of civil appeals erred in reversing the trial court because the evidence conclusively established the fact of her common-law marriage to Joe Collora, thus leaving no issue to be presented to the jury. We agree with this contention.
Ollie and Joe started dating in 1947, and by 1949 were going together on a steady basis. Ollie testified that in April 1949 she and Joe "agreed to a marriage" and moved into his mother's home where they lived until late 1949 or early 1950. This is the period of the claimed common-law marriage. Thereafter, in her words, they "confirmed" their marriage through a civil ceremony on February 11, 1950, some ten months after the commencement of their alleged common-law marriage. The reason ascribed for delaying the ceremonial marriage was religious differences between Joe's mother, a Catholic, and Ollie, a Protestant.[2] Seven different witnesses, ranging from the County Agricultural Agent to next-door neighbors to relatives, testified that during the period between April 1949 and February 1950, the time period of critical inquiry, Joe and Ollie held themselves out to be married. Joe introduced Ollie as his wife, Mrs. Collora. They told people they were married. They lived together under the roof of Joe's mother as man and wife. For more than ten years, from April 1949 (the inception of their asserted common-law marriage) through the ceremonial marriage in 1950 and up until their divorce in December 1959, they cohabited together, maintained a household, and introduced themselves to people as Mr. and Mrs. Collora. All of this testimony was clear, direct, positive, and uncontradicted. Navarro called no witnesses of his own nor did he cross-examine any of Ollie's witnesses on the matter of her common-law marriage to Joe.
In late 1948 or early 1949, while still dating and before they had "agreed to a marriage," Joe and Ollie became interested in purchasing land under the Texas Veterans Land Board Program, Article 5421m, Texas Revised Civil Statutes Annotated, now codified as Texas Natural Resources Code Annotated, Sections 161.001-161.403. They decided on the 68.5-acre tract which is the subject matter of this suit. It was not until January 17, 1950, in the ninth month of their claimed common-law marriage, however, that Joe Collora, as purchaser, contracted with the Veterans Land Board for the purchase of this property in his *68 name only.[3] Joe entered into this contract during the period of the asserted common-law marriage, but one month prior to their ceremonial marriage in February.
Joe and Ollie were divorced on December 15, 1959. Respondent Navarro, an attorney, represented Joe during the divorce proceedings. At the time of those proceedings the Veterans Land Board contract was still out-standing and in force and effect. The divorce decree granted Joe and Ollie each one half of the equity in the farm, but did not partition the tract of land. A little more than two years later, in January 1962, Joe attempted to convey by deed title to all of the land to the Camille Corporation. Later in the same month he assigned the Veterans Land Board contract to the Corporation. Ollie did not join in these transactions. Camille Corporation in turn attempted to convey by deed title to all of the 68.5-acre tract to Navarro. Joe Collora died testate in 1968. This suit was instituted in 1971. The decisions of the lower courts are set forth above.
The court of civil appeals applied the proper standard of review in this directed verdict case. The rule as generally stated is that the plaintiff is entitled to a directed verdict when reasonable minds can draw only one conclusion from the evidence. The task of an appellate court in such a case is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. The court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences. Henderson v. Travelers Ins. Co., 544 S.W.2d 649 (Tex.1976); Echols v. Wells, 510 S.W.2d 916 (Tex.1974). When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948).
The validity of the common-law marriage has always been recognized in Texas. 1 L. Simpkins, Texas Family Law § 2:1 (1975); Comment, Common-Law Marriage in Texas, 21 Sw.L.J. 647 (1967). It is authorized by statute. Tex.Fam.Code Ann. § 1.91. A valid common-law marriage consists of three elements: (1) an agreement presently to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963). There was abundant evidence from other sources of the second and third elements, and the court of civil appeals correctly held that they were established as a matter of law. Consequently, our concern is directed solely to proof of the first element.
The only direct evidence relating to the first elementa present agreement to be husband and wifewas Ollie's testimony that she and Joe had "agreed to a marriage." Her testimony was direct, positive, and uncontradicted. Navarro chose not to cross-examine her, nor did he call her as an adverse witness. There was no other direct evidence produced at trial that proved or disproved her testimony. Under these circumstances, the court of civil appeals held that Ollie's testimony, standing alone, could do no more than raise a fact issue of credibility and could not support a directed verdict. With this conclusion we cannot agree.
*69 The statement is often encountered that evidence given by a party or a witness who has an interest in the outcome of the suit cannot be the basis for an instructed verdict; it raises an issue of credibility upon which the jury must pass. 62 Tex. Jur.2d Witnesses § 374; Annot., 8 A.L.R. 796. This is the general rule, and one to which we still adhere. As with most general statements, however, this one is not without exception.
The exception to the rule was explained thusly by McDonald:
"But the testimony of an interested party or witness is not wholly without probative force. An instructed verdict based thereon favorable to the party with whom the witness is identified is proper when the testimony pertains to matters reasonably capable of exact statement, and is clear, direct, and positive, is internally devoid of inconsistencies and contradictions, and is uncontradicted either by the testimony of other witnesses or by circumstancesin short, when there is nothing to cause any reasonable suspicion as to its truth." 3 R. McDonald, Texas Civil Practice § 11.28.6 at 249.
This exception is most appropriate when the opposing party has the means and opportunity of disproving the testimony or testing the credibility of the witness, but fails to avail himself of it. On the other hand, as we stated in Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458 (Tex.1969), "the basis for recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue." 449 S.W.2d 458 at 467 [and cases cited].
The court of civil appeals was of the opinion that Mrs. Collora's testimony, although clear, direct, positive, and uncontradicted, was of such a nature that Navarro could not readily contradict or disprove it. Consequently, it presented an issue of credibility for the jury. There are three factors present in this case which, taken together, lead us to disagree with the lower court's holding.
First, the general rule governing the finality to be given to testimony of an interested witness is by no means an absolute one to be applied in a cut-and-dried fashion. Rather, it is flexible and its application must turn on the facts of each case. Certainly there will be cases where the credibility of an interested witness or party is so suspect that it must go to the jury, even though the testimony is uncontradicted. Then there will also be cases where the testimony of the witness is so clear that the jury should not be allowed to speculate as to his veracity. Cf. Praetorian Mutual Life Insurance Co. v. Sherman, 455 S.W.2d 201 (Tex.1970), with Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.1965). Between these two extremes lies a broad spectrum of possibilities. Our courts have recognized this in the past by setting forth certain standards by which the rule and its exceptions are to be measured: Is the testimony clear, direct, and positive? Is it internally consistent? Is it contradicted or corroborated by other circumstances in the case? Is it contradicted or corroborated by other witnesses? Does the opposing party possess the means to verify or dispute the testimony? Does he have a way to test the witness' credibility? Did he make use of those means? Obviously no one factor automatically can be dispositive in every case.
The court of civil appeals in this case, however, has in essence resorted to an automatic test for applying the rule, that being whether or not it is possible to contradict the testimony of the interested witness. The practical effect of this holding would be to foreclose the possibility of an instructed verdict in many, if not most, common-law marriage cases. It is well-established that the agreement to marry need not be shown by direct evidence, but may be implied or inferred from evidence that establishes the elements of cohabitation and holding out to the public as husband and wife. Humphreys v. Humphreys, supra, at 178; Consolidated Underwriters v. Kelly, 15 S.W.2d 229, 230 (Tex.Com.App.1929, jdgmt adopted); Tex.Fam.Code Ann. § 1.91(b); Comment, Common Law Marriages in Texas, 13 Baylor L.Rev. 168 (1961).
*70 In this case there is no need to imply an agreement between Ollie and Joe, since Ollie testified to an express agreement. There is nothing in the record to suggest she was telling anything less than the truth. When all of the evidence points only to the truthfulness of the witness, a directed verdict cannot automatically be rejected solely because the witness' testimony cannot be contradicted. In another case and under different facts, perhaps that one factor would be sufficient to defeat an instructed verdict, but in this case and under these facts, it is not.[4]
A second factor in this case leads us to disagree with the court of civil appeals. The court placed great importance on the fact that Navarro had no way to disprove or contradict Ollie's testimony as to the agreement. Under the present circumstances, we are inclined to agree with the dissent in the court of civil appeals that Navarro could have utilized the "time honored method for testing a witness's credibility,... cross-examination ..." 566 S.W.2d 304 at 313.[5] Having failed to do so, his complaint loses its primary thrust.
Finally, there is a third factor which, when taken in combination with the two listed above, compels us to reverse the decision of the court of civil appeals. We have already pointed out that the agreement to be husband and wife may be inferred from proof of the other two elements of a common-law marriage. In this case there is no need to resort to inferences, inasmuch as there is direct evidence of an express agreement. We find persuasive Mrs. Collora's argument that the proof of cohabitation and holding out to the public was corroborative evidence of her direct testimony. "[W]hen there exists corroboration [either by another witness or surrounding circumstances] we are no longer dealing with an issue raised solely by the testimony of an interested witness." 3 R. McDonald, Texas Civil Practice, supra, at 250.
We hasten to emphasize that the three factors considered important in this case will not automatically be dispositive of other cases. The circumstances of each case must be carefully considered, and each case must turn on its own facts.
One further problem remains to be resolved concerning the proper disposition of this appeal. Although Ollie prayed for a partition of the land, the trial court granted her "title to and possession of an undivided one-half interest" in the land. As explained in footnote three to this opinion, however, legal title to the land still rests with the Veterans Land Board, which was not made a party to this suit. The trial court thus was without power to award to Ollie a legal title to the land. At most, it had the power to adjust the equitable interests in the land among the parties to this action. It is of course true that Joe's assignment of the contract and attempted transfer of the entire tract in 1962 to the Camille Corporation would not be effective to transfer a greater interest in the property than that which he owned. Bradley v. Bradley, 540 S.W.2d 504, 512-13 (Tex.Civ. App.Fort Worth 1976, no writ). The Camille Corporation could have acquired no more than Joe's undivided one half equitable interest in the farm, and it in turn could transfer no greater interest than that to Navarro. We have therefore determined that this cause must be remanded to the *71 trial court for a determination of the equitable interests in the land owing to each party.[6]
Mrs. Collora's cause is severed from the cause brought by the children intervenors. As severed, the judgment of the court of civil appeals relating to Mrs. Collora is reversed and the cause is remanded to the trial court for entry of a proper judgment in accordance with this opinion.
NOTES
[1] In this connection, we would note that Navarro has not filed any written briefs in this court.
[2] It should be noted that whatever was the nature of those differences, it was not sufficient to prevent Ollie and Joe from residing in his mother's home without benefit of a ceremonial marriage.
[3] Under the provisions of the Veterans Land Board Program, Joe signed a contract of sale and purchase, with the Board as seller and Joe as buyer. It provided for a purchase price of $7,000, with $350 as a down payment, the remainder to be paid in six-month installments over a forty-year period at an interest rate of three percent per year. The contract was signed on January 17, 1950. The Board purchased the land by deed dated January 23, 1950. There is no evidence that the Board has ever executed and delivered a deed to the land to anyone. It must therefore be assumed that the Board still retains legal title to the land. Based on this assumption, Ollie Collora has at best an equitable interest in the land. The 1959 divorce decree granted Ollie and Joe each an undivided one half equitable interest in the land, with Joe having as separate property an equity interest of $350 (representing the down payment). It is also noted that all installment payments since 1962 have been paid either by the Camille Corporation or Navarro.
[4] Since this case does involve direct evidence of an express agreement, we do not consider or pass on the propriety of a directed verdict when the agreement must be implied from proof of the other two elements. But cf. Prudential Insurance Company of America v. Krayer, 366 S.W.2d 779, 780 (Tex.1963).
[5] Cross-examination has long been regarded as the foremost weapon in the attorney's selective arsenal of trial tactics for the purpose of ascertaining the truth. A noted criminal prosecutor has written that cross-examination is the principal tool "for separating truth from false-hood, actual knowledge from hearsay, fact from imagination and opinion; it is the best technique, as one legal scholar wrote, `for reducing exaggerated statements to their true dimensions.'" V. Bugliosi, Till Death Us Do Part at 241 (1978). Professor Wigmore has declared it "beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 Wigmore, Evidence § 1367 at 32 (Chadbourn rev. 1974).
[6] Neither party has addressed this defect in the judgment at any stage in the appeal of this case. Indeed, the parties appear to have tried the case on the assumption that they owned legal title. The court of civil appeals noted the problem, 566 S.W.2d 304 at 307, but did not pass upon it in light of its decision to remand the case for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/726330/ | 95 F.3d 1157
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Roland C. DENT, Petitioner-Appellant,v.Tana WOOD, Respondent-Appellee.
No. 95-35698.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 12, 1996.*Decided Aug. 19, 1996.
Before: BROWNING, SCHROEDER and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Roland C. Dent, a Washington state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. Following a jury trial, Dent was convicted of conspiracy to commit first degree murder. Dent contends that the trial court's "substantial step" jury instruction: (1) violated the Due Process Clause by retroactively broadening the definition of conspiracy under Wash.Rev.Code § 9A.28.040(1), (2) relieved the government of its burden of proving a conspiracy under Wash.Rev.Code § 9A.28.040(1), (3) enabled the jury to find Dent guilty without deciding all the elements of the offense, (4) enabled the government to convict Dent of conspiracy without sufficient evidence of "more than mere preparation," and (5) retroactively made Dent's innocent conduct a crime. We have jurisdiction under 28 U.S.C. § 2253 and we review de novo. Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995). We affirm.
3
We affirm for the reasons stated in the district court's order adopting the Report and Recommendation, which fully and fairly addressed each of Dent's claims.
4
Because we affirm the denial of relief under the former version of 28 U.S.C. § 2254, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal.
5
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1568930/ | 35 F. Supp. 319 (1940)
O'HARA
v.
GENERAL MOTORS CORPORATION.
No. 75.
District Court, E. D. Michigan, N. D.
October 15, 1940.
*320 William W. Griffin, of Detroit, Mich. (Duffy & Duffy, of Bay City, Mich., of counsel), for plaintiff.
Frederick J. Ward, of Detroit, Mich. (Carlos J. Jolly and Bruce G. Booth, both of Detroit, Mich., of counsel), for defendant.
TUTTLE, District Judge.
Plaintiff brings this suit on the theory that plaintiff's decedent was killed through the negligence of defendant in manufacturing a car with a defective steering gear. Plaintiff's decedent was driving a Chevrolet car manufactured by defendant. The car left the road, struck a mail box, broke off the post which held the mail box, continued on, turned over longitudinally, and finally ran into a tree. The car was completely demolished. Plaintiff's decedent and one of his companions were killed. Another companion was injured and was a witness at the trial. Part of the steering mechanism was found by a neighbor in the road near the tree where the car was finally wrecked. Another piece of the steering mechanism was found in the field near the road and several feet from the car and tree. The only evidence other than the accident as above described upon which plaintiff relies was that of the occupant of the car who testified in substance that just before the car left the road plaintiff's decedent said, "Look out, I can't hold her"; and another witness who testified that he was in his home near the road and heard someone say substantially the same thing. There was no proof by any expert or other witness as to how the car was constructed or how it should have been constructed. There was no proof of any defect in the car of any kind. There was no proof as to any inspection or care given the car during the few months the car had been driven. Counsel for plaintiff contended that the proof showing that the car left the road coupled with the proof that plaintiff's decedent said he could not steer the car was sufficient proof to go to the jury on the question of the defendant's negligence in manufacturing a defective car, and that the defect was the cause of the accident. On motion of defendant, I directed a verdict in favor of defendant at the close of plaintiff's case. The case is now before me on motion for a new trial.
Prior to the decision of the Erie case (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A. L.R. 1487, decided April 25, 1938, by the Supreme Court of the United States) I had always charged the jury that contributory negligence was a defense and that the burden of proving that defense was upon the defendant. I had also held that I would not entertain a motion for directed verdict until all of the proofs were in and both parties had rested. Since the decision in the Erie case, I have followed the Michigan Supreme Court and reversed myself on both of these questions in conformity with the Erie case, which held that "a federal court exercising jurisdiction over such a case on the ground of diversity of citizenship, is not free to treat this question as one of so-called `general law', but must apply the state law as declared by the highest state court." Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487 (Syllabus). I now entertain a motion by defendant for a directed verdict at the close of plaintiff's case and also, if made, at the close of all the proofs. Both before and since the Erie case, it has always been my understanding that such a motion, whenever properly made and considered, should be denied if on the record as there made it was possible for the jury from the testimony, when considered in a light most favorable to the plaintiff, to draw a legitimate inference which would establish the facts necessary to support a verdict for plaintiff; on the other hand that it was my duty to direct a verdict in favor of defendant if a reasonable mind could not from the testimony draw such legitimate inference from the established facts. In other words, a jury cannot be left to speculate without any legitimate inferences to guide. *321 The same thought has been expressed by the courts in many ways and in different language. It amounts to saying that if the testimony, viewed in its most favorable light to the plaintiff, furnishes a field from which the jury may draw reasonable inferences establishing the facts necessary to a verdict for plaintiff, then the case should go to the jury. On the other hand, if the field is one so barren that it does not offer the material for such reasonable inferences but only the opportunity to conjecture, then the case must be taken from the jury. There is no presumption that a defendant has been negligent, and unless the testimony is such that a reasonable inference of negligence can be drawn, then a verdict must be directed for the defendant if the motion is made, either at the close of plaintiff's case or at the close of all the proofs. There has been no change in this regard since the Erie case, because, as I understand it, the general law and the law as established by the Supreme Court of the State of Michigan are in accord. After listening to the very able presentation by counsel for plaintiff, I do not think that there is any disagreement between counsel and this court relative to the law. As so often happens, the difficulty comes in applying the law to the particular case at bar. The particular negligence charged is a defective steering gear in the car manufactured by defendant. I agree that if the proofs would support any defect in the car as manufactured by defendant which was the proximate cause of the accident, the court should permit the pleadings to be amended to fit the proofs. Therefore, I have considered the proofs from the broad standpoint of whether they are such that, considered most favorably to the plaintiff, the jury could reasonably draw the inference that the car as manufactured by the defendant was defective in any way. I have never entertained the idea that the law was so unreasonable as to make a plaintiff injured by a defective machine prove the particular part of the machine which was defective, provided the proof was such that a reasonable inference could be drawn that some part was defective. For example, in the case at bar, the plaintiff should recover if the accident happened because the defendant made either a defective steering gear or a defective brake which caused the accident, and even though no one could tell or decide which one of the two parts was defective. I have considered the proofs from this broad standpoint and cannot find any proof from which a reasonable inference could be drawn that any part of the car was defective. Taking the proofs most favorably to plaintiff, all we have is that plaintiff's decedent lost control of his car and ran into a mail box and tree. To my mind, it would be pure guesswork to say on that proof why plaintiff's decedent lost control of the car. What plaintiff's decedent said at the time and all that happened at the time shows no more than that he lost control of the car, with the resultant leaving of the pavement and the striking of the tree. This line of reasoning led me to the conclusion that I had no alternative except to direct a verdict for defendant. The same thoughts compel me to deny the motion for a new trial.
I have read all the cases cited by counsel for plaintiff for the purpose of finding support for his contention that there was some modification of the rule which places the burden of proof of negligence upon the plaintiff. It is my understanding that counsel for plaintiff contends that if plaintiff showed that the automobile was manufactured by the defendant and showed that one of the things which might possibly have caused the accident was a defective car, a verdict could not be directed for defendant at the close of plaintiff's case, but that the trial must go on and the burden of proof shifts to the defendant in such a way that if the defendant did not show his own freedom from negligence in other words, that the automobile was free from defects then the case must go to the jury. I know of no such Michigan law, and feel certain that there is no such law to be found. It would still leave the jury to guess. If plaintiff had introduced proof to eliminate all other causes except a defective car, it would then, of course, prevent a directed verdict and defendant would have the privilege of showing the care used by inspection or otherwise. That is quite a different situation than the case at bar, in which other possible causes of the accident have not been eliminated. Plaintiff's decedent had owned and driven the car for three months. There is nothing in the proof to eliminate defective brakes resulting from improper adjustment, flat tires, and many other things for which defendant would not be liable and concerning which defendant was in no better position to offer proof than was plaintiff.
I have, since the oral argument, examined every case cited by counsel for *322 plaintiff. The list is so complete that I shall here discuss those cases.
Alpern v. Churchill, 53 Mich. 607, 19 N.W. 549, 552. The question involved was this: Was the wire bonnet which covered the refuse-burner constructed, maintained and used in a negligent way by defendant and did the negligence cause the fire to catch in the roof of plaintiff's building and destroy it? Proof showed that on numerous previous occasions sparks had come out of the wire bonnet and started fires; and that the wind on the day in question was just right to set fire to plaintiff's buildings. The condition of the wire bonnet was shown to be the same at the time of the fire in question as at the time when the other fires were seen to start from the sparks. It was shown that when the draft was open sparks would come out, but when the draft was closed sparks would not come out. There was an abundance of circumstantial evidence tending to show that the sparks which came out of the plaintiff's wire bonnet set fire to and burned plaintiff's property; and that the wire bonnet had long been in that condition. A wire bonnet which permits sparks to escape is dangerous and negligent. It, of course, did not matter in this case whether the wire bonnet was off, open, or out of repair. It was shown that defendant knew that it was letting sparks escape. This, of course, was sufficient and strong proof to go to a jury. It has no bearing or application to our case. The Supreme Court held that the proofs for plaintiff were sufficient to take the case to the jury. In my years on the bench, I have denied hundreds of motions for directed verdicts because there was some proof for plaintiff. That is no reason why this motion should be denied, unless we here have the necessary evidence. The court very well said in this case that "negligence, like any other fact, may be inferred from the circumstances, and the case may be such that, though there be no positive proof that defendant has been guilty of any neglect of duty, the inference of negligence would be irresistible." The court was talking about that kind of a case and really announcing the old doctrine which permits circumstantial evidence. The court did not say, and should not say, that negligence may be inferred without proof of negligence either direct or circumstantial.
Barnowsky v. Helson, 89 Mich. 523, 50 N.W. 989, 15 L.R.A. 33. Defendant was raising a roof, which fell and killed plaintiff's decedent. The proof tended to show that the roof fell because the defendant had failed to properly brace it. The court held it to be a question for the jury. The proofs, as well as commonsense, showed that the roof fell because of faulty bracing. Neither the proofs or mental reasoning show why the automobile in the case at bar left the road. Many things for which the defendant would not be responsible may have caused it to leave the road. The jury would have nothing to guide it and the courts do not let juries speculate or guess.
Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081, 1083. Plaintiff's decedent was killed by an explosion in defendant's nitroglycerine factory. The negligence charged was the use of a rubber hose to convey the compound and leaving it in the hose. The Supreme Court in this case again laid down the rule that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. But if "there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other" then it would be a denial of justice to take the case from the jury. What kind of a case was the court talking about? It was a case in which plaintiff's decedent had nothing to do with the alleged negligence. The defendant that very day for the first time began to use the rubber hose to convey the compound and left the hose filled with the compound. An expert witness testified that it would be unsafe, and would result in an explosion, to leave the compound in a rubber hose for the time it was shown to have so remained prior to the explosion. Some of these facts were disputed by defendant's witnesses, but that makes no difference on the question we are considering as to whether the case is to go to the jury or whether a verdict is to be directed. On this question, the testimony most favorable to the plaintiff is all that need be considered. The Supreme Court here had a case in which the plaintiff should prevail if the jury found plaintiff's testimony was true and drew therefrom the reasonable conclusions which they were entitled to draw. I repeat that in the case at bar, I have no proof from which the reasonable conclusion can be drawn that the automobile manufactured by the defendant was defective.
*323 O'Neill v. James, 138 Mich. 567, 101 N.W. 828, 68 L.R.A. 342, 110 Am. St. Rep. 321, 5 Ann.Cas. 177. Plaintiff was injured by the explosion of a bottle of champagne cider manufactured and bottled by defendant in bottles purchased from a bottle manufacturer. Questions of no importance to us furnish the major part of the opinion. Both the trial judge and the Supreme Court held that plaintiff's proofs were sufficient to take the case to the jury on the question of defendant's negligence. It was shown that the bottle of champagne cider manufactured and sold by the defendant exploded. There was testimony by an expert that champagne cider manufactured in the usual way under ordinary pressure was safe. There was also testimony to the effect that if the champagne cider was placed under pressure beyond certain limits it became dangerous and would explode. The bottle was shown to have exploded. Therefore, if the jury believed both the fact witness and the expert witness, there was a complete showing of negligence on the part of the defendant. There was a reasonable theory which could be based on the evidence leading to the conclusion of negligence without any guesswork.
Pierce v. C. H. Bidwell Thresher Co., 153 Mich. 323, 116 N.W. 1104. Plaintiff was injured by falling through the decking and falling into the cylinder of a threshing machine manufactured by defendant. The proofs showed how the machine was made, that the decking was of soft wood, that part of the end of one of the boards was cut away to allow for the passage of a pipe so that the board was poorly supported at its end by only one inch of its width. The proof went into great detail and tended to show a weak and dangerous decking. The necessity for going upon the decking generally and in the particular case was shown. Both the trial judge and the Supreme Court held that it was a proper case for the jury which returned a verdict for plaintiff. One of the questions urged in and decided by the Supreme Court was the claim of defendant that no expert had testified that a machine constructed as shown by the proofs would be dangerous. Let us assume that in our General Motors case we had the best experts in the world as witnesses, no lawyer or judge could frame a hypothetical question for the purpose of asking whether or not the automobile in question was properly made or was dangerous. The reason it could not be done is because the proofs do not show how it was made or what material it was made from. There is no proof to show either what was wrong or what would be right. I mention this to show how meager and vacant our record is as compared to any case cited or, I believe, ever decided by an appellate court. A case as barren of proof of negligence cannot, I believe, be found unless it be a case decided in favor of the defendant. Counsel for plaintiff have cited cases in which the holding was in favor of plaintiff, and therefore the cited cases all have proofs showing the defect in manufacturing.
Sewell v. Detroit United Railway, 158 Mich. 407, 123 N.W. 2, 3. In this case, plaintiff was injured while a passenger in defendant's car. Plaintiff proved that the street car in which he was riding bumped into the back of another car ahead on the same track. Defendant owned the track and both cars, and the men operating both cars were employed by defendant. If the defendant was negligent with reference to the operation of either car in a way to cause the injury, then defendant was liable. The language used by the court is very appropriate. "The inference that some one had blundered prima facie would be the most natural one to be drawn, and that inference is so clear that it would not require further proof of negligence on the part of defendant." In that case, someone had blundered, and the proof showed that whoever that individual might be the one liable was the defendant. How inappropriate that same language would be if applied to our case. Here the proof goes far enough to show that someone has blundered, but the possibilities of the blunders are not all in the camp of the defendant who manufactured the car. The proof does not identify the one who blundered. It points no more to the manufacturer of the car than to the one who serviced the car or drove the car. Suppose in this street car case the two cars had been owned, manned and operated by two separate and distinct companies and one car had hit the other, causing the accident. The court might truthfully have said that someone had blundered, but would not have said that no further proof was needed to show the negligence of the defendant. To make the comparison more like our own case, let us assume that instead of suing the street car company which operated the car the plaintiff had brought suit against the manufacturer of the car, charging a defective brake. The court might still say that someone had blundered, but would not say that the proof would sustain a verdict *324 against the manufacturer of the car. This all goes to show how improper it is to apply what a court has to say in one case about the proof necessary to sustain a verdict to some other case having different facts.
Burghardt v. Detroit United Railway, 206 Mich. 545, 173 N.W. 360, 361, 5 A. L.R. 1333. Plaintiff was struck and injured by a trolley pole from defendant's car while passing to the rear of the car. It was proved that the trolley pole had become loosened in its socket. The proofs not only showed the accident but also showed why it was and how it was that the trolley pole fell. The proof showed what was wrong with the street car and that the wrong thing caused the accident. Of course, such a case should go to the jury. The Supreme Court reannounced the same old doctrine in this language: "This court has not adopted the rule res ipsa loquitur. We have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that, where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, at least a prima facie case is made." The Supreme Court of Michigan has said this same thing in so many ways and so many times that it would seem unnecessary to read any case except this one as to the general proposition of law. The problem is not to find out what the law is, but to apply it to the case at bar. In every case, the court requires some proof, either direct or circumstantial, to support the claim of negligence. In this Detroit United Railway case, the plaintiff charged negligence on the part of defendant in having a loosely and defectively attached trolley pole which fell and injured the plaintiff. In the case at bar, the plaintiff charges that defendant built an automobile with a defective stearing gear, but fails entirely to prove it. In the trolley pole case, the jury should decide the case under the proofs of negligence. In the case at bar, the court should direct a verdict, because proof of a defective car is entirely lacking. Cases like the trolley pole case are good and sufficient authority for directing a verdict in the case at bar where proof of negligence is entirely lacking. Of course, in a case like the trolley pole case, the motion for a directed verdict should be denied because plaintiff has made out a prima facie case. The case must go on and the defendant may, if it can, meet the presumption which has been created by plaintiff's proof. If in such a case defendant introduces no proof, the case must go to the jury. None of these things apply in a case like the one at bar, in which no proof of negligence has been offered, and therefore no presumption of negligence has arisen. The difficulty which plaintiff may find in getting evidence does not change the rule. The impossibility of getting any evidence of defendant's negligence will always defeat plaintiff in a tort action, because plaintiff always has the burden of proving defendant's negligence.
Fuller v. Magatti, 231 Mich. 213, 203 N.W. 868, 869. Defendant parked his car in front of his restaurant. It ran down the hill, and at a distance of four hundred feet struck and injured plaintiff. The testimony was in conflict as to whether the car was parked with the front wheels turned towards the curb or parallel to the curb, as to whether the car started down the hill three minutes or thirty minutes after it was parked, whether the brake was set or was not set, and as to whether the gear was in reverse or in neutral. A determination of these disputed facts was material and necessary to a determination of the question of negligence. It was clearly a case for the jury. The trial judge refused a motion for a directed verdict and the Supreme Court affirmed the verdict for plaintiff. The Supreme Court again announced the well-known doctrine in this language: "Assuming then, as we should, that the happening of the accident alone was not evidence of negligence, and alone did not take the case to the jury, we approach the record to determine whether it contains testimony directly from witnesses or proven facts from which legitimate inferences may be drawn making the question of defendant's negligence one of fact for the jury and disputing the testimony given by him." Of course if plaintiff had offered no proof of negligence, there would have been nothing for defendant to dispute, and no issue to submit to the jury. The law is so plain that it seems a waste of time to read the law books further. All that the case at bar needs is a study of the record to ascertain "whether it contains testimony directly from witnesses or proven facts from which legitimate inferences may be drawn making the question of defendant's negligence one of fact for the jury." I have canvassed and recanvassed the record and find no such testimony. I wish to emphasize that it *325 cannot be found in law books. It is useless to further discuss the law that is not in dispute. There is only one meritorious question and that is the presence or absence of such testimony in the record.
Loveland v. Nelson, 235 Mich. 623, 209 N.W. 835, 836. Plaintiff charged defendant with malpractice by negligently injecting lysol instead of an anesthetic into her gums before extracting a tooth. The proof showed that following the injection of the substance into the gums there was a burning sensation and no numbness or deadening of pain, that the face began to swell immediately, that there was an accumulation of pus and sloughing off of the membrane. Medical experts testified that the condition found in the mouth was not due to germ inoculation but to the action of a chemical substance, that it was improper practice to inject lysol into the gums, and that the condition found in the mouth was caused by the injection of lysol into the gums. There was also proof that the defendant dentist kept the needle which he used suspended in lysol when not in use. The proof also showed that no other fluid had been injected into the gums. The court said in reversing a directed verdict: "This court has not adopted the rule res ipsa loquitur, but this does not prevent a plaintiff making a case by circumstantial evidence." The Supreme Court has said so many times that Michigan does not adopt the rule of res ipsa loquitur that it does seem as if we could believe it and forget the doctrine. I just can't see why it should be thought anything out of the usual that the Michigan Supreme Court should say that negligence can be proved by circumstantial evidence. It is often discussed by plaintiffs as if it were something almost as helpful to a plaintiff as the rule of res ipsa loquitur. The fact is that the rule permitting proof of negligence by circumstantial evidence is not peculiar to Michigan or to tort actions. Anything, even murder, with death as the penalty, can be proved by circumstantial evidence. In the dentist case for malpractice, there was an abundance of circumstantial evidence supporting the negligence.
Pesavento v. E. I. Du Pont De Nemours & Co., 240 Mich. 434, 215 N.W. 330. Plaintiff was injured while using a fuse to explode a charge of dynamite in a mine. The fuse was furnished by the defendant with the representation that it was waterproof and would burn at the rate of two feet to the minute, with a 10 per cent. variation. Plaintiff lighted the fuse and there was a premature explosion from which he was injured. Plaintiff testified that the fuse was defective and told why it was defective; that it did not burn at the usual, proper rate but burned from end to end almost instantly. The Supreme Court said, "The facts are not in dispute. It must be conceded that the fuse was defective and that it was the proximate cause of the plaintiff's injury." The trial court directed verdict for defendant on grounds with which we are not here concerned and the case was affirmed by the Supreme Court. It is difficult to see how a case in which negligence must be conceded can help us find proof of a negligently constructed car in a record which contains no such proof.
Heppenstall Steel Co. v. Wabash R. R. Co., 242 Mich. 464, 219 N.W. 717. Defendant's spur tracks lead from the switch yard into plaintiff's plant. The opening for the cars to enter the plant was protected by a steel curtain. The proof showed that three cars in the night time crashed through the steel curtain, entered plaintiff's building, and demolished a portion of the opposite wall. Plaintiff produced no witness who saw the crash. A woman who lived nearby heard the crash, hurriedly dressed, and went to the scene of the accident. She saw the steel curtain had been smashed, she saw that the cars were in the building and the wall smashed, she saw an engine attached to cars near-by, she saw a man with a lantern who appeared to be a railroad man go to the building and look at the cars in the building. Plaintiff's manager testified as to the damages and the position of the cars when he went to the building the next morning. It was also proved that the switching in that yard and on the tracks was done by the defendant. Again, the court announced the same old doctrine and it is unnecessary to repeat it again. There was in this case plenty of circumstantial evidence to support a verdict for plaintiff. It has no bearing whatever on the record at bar. Our case at bar is entirely different and we have no proof that defendant was negligent in constructing the automobile which struck the tree and killed plaintiff's decedent.
Faustman v. Hewitt, 274 Mich. 458, 264 N.W. 863. This was a collision between two automobiles at an intersection between *326 two county highways. The trial judge denied a motion by defendant for directed verdict at the close of plaintiff's proof and denied the same motion renewed at the close of all the proofs. The Supreme Court reversed the case without a new trial on the ground that the motions for a directed verdict should have been granted. Nothing said by the court in a case so different from ours, in which the court held the proofs would not support a verdict for plaintiff, can be of any possible help to plaintiff in this case.
Fish v. Grand Trunk Western Railway, 275 Mich. 718, 269 N.W. 568, 569. Plaintiff testified that he stopped five or six feet from a railroad track to permit a train to pass and that as the tender passed him he was struck and injured by something which stuck out from the side of the tender. The trial court directed a verdict for defendant and the Supreme Court reversed the case, announcing the same old doctrine; the court again saying, "If plaintiff is to recover in this action he must prove defendant guilty of negligence and himself free from contributory negligence. The mere occurrence of an accident does not raise a presumption of negligence, and the burden of proof remains with plaintiff and does not shift."
The court also said, "The sole question on rehearing is whether plaintiff made out a prima facie case for the jury as to the negligence of defendant. We have carefully examined the record and conclude that sufficient facts were shown that would present a jury question as to defendant's negligence. While the doctrine of res ipsa loquitur is not in force in this state, we have held that negligence may be inferred from circumstances, and that where the circumstances are such as to take the case out of the realm of conjecture and place it within the field of legitimate inferences from established facts, at least a prima facie case is made." It should be noted that the court does not say that negligence may be inferred from any circumstances, but only where the "circumstances are such as to take the case out of the realm of conjecture and place it within the field of legitimate inferences from established facts". The circumstances in the case at bar leave us to conjecture and without any legitimate inferences of a negligently constructed automobile.
Trent v. Pontiac Transportation Co., Inc., 281 Mich. 586, 275 N.W. 501. The plaintiffs were passengers in defendant's bus when a wheel heated and came off, injuring the plaintiffs. This was proved by witnesses. The court held it was sufficient proof to raise a presumption of improper inspection. The manufacturer of the automobile had no duty to follow this car in the suit at bar and inspect it and keep the steering gear, brakes, tires and other equipment in good condition. This case has no bearing on our case, but if it did have it would tend to show that plaintiff's decedent had failed to properly inspect and service his car. Of course, in this bus case, the plaintiff was a passenger for hire in the bus and the duties were so different from the duties in the case at bar that it would be unfair to attempt to apply it to our case.
Macres v. Coco-Cola Bottling Co., Inc., 290 Mich. 567, 287 N.W. 922. The proof showed that defendant sold and delivered the bottle of Coco-Cola to the proprietor of a restaurant who put the bottle in the refrigerator; that an hour later plaintiff, who was a waitress in the restaurant, went to the ice box, and the bottle of Coco-Cola exploded, injuring the plaintiff. Expert witnesses testified as to the manner of preparing and bottling these beverages and how they would explode under too great pressure. The trial court followed the well-known rule, so often announced, in his charge and the Supreme Court affirmed the verdict for plaintiff. There was an abundance of evidence to go to the jury on the negligence of the defendant in placing too great pressure within the bottle.
Other cases in great number can be found in which our Michigan Supreme Court has held that a verdict should have been directed because there was no evidence, either direct or circumstantial, from which the jury could draw a reasonable inference of negligence and that the jury should not be permitted to guess or speculate. None of these cases do more than lay down the general rule and then apply it to the particular case. That is what I have done in the case at bar, and finding no proof in the record from which a jury could draw a reasonable inference that the defendant manufactured this car with defects of any kind, I directed a verdict for defendant, and for that reason I now deny plaintiff's motion for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568937/ | 35 F. Supp. 643 (1939)
CONTINENTAL CASUALTY CO.
v.
TRENNER et al.
No. 10053.
District Court, E. D. Pennsylvania.
January 3, 1939.
H. Rook Goshorn and Harry S. Ambler, Jr., both of Philadelphia, Pa., for plaintiff.
Sundheim, Folz & Sundheim and I. Jerome Stern, all of Philadelphia, Pa., for defendants.
KIRKPATRICK, District Judge.
This is a bill in equity for a judgment under the Federal Declaratory Judgment Act, 28 U.S.C.A. § 400, declaring the rights, liabilities and legal relations of insurer and insured under a policy of automobile liability insurance.
Trenner's policy contained a term, of which the pertinent parts are:
"IV. Automatic Insurance for Newly Acquired Automobiles. If the named insured * * * acquires ownership of another automobile, such insurance as is afforded by this policy applies also to such other automobile as of the date of its delivery to him subject to the following additional conditions: * * * (4) this agreement does not apply * * * (b) unless the named insured notifies the company within ten days following the date of delivery of such other automobile, * * *."
After the policy was issued he traded in the automobile covered for a new one of the same make and model but a later year. He *644 did not notify the Insurance Company of the change. More than ten days after he got the new car he had a collision as a result of which he was sued for damages. The question is whether his policy insures him against liability in this suit.
There would be no question at all about it except for the word "automatic" in the bold cap title of the clause. The insured contends that this word creates a conflict and an ambiguity which, under the well-known rule of construction, must be resolved against the Insurance Company. As a matter of fact, the caption is not inconsistent with the provision under it. Its fault, if any, is that it is not quite completely descriptive of it. It announces "automatic insurance" without qualification. The clause does give unconditional automatic insurance for newly acquired automobiles, but for a limited period only. It may be continued, provided the new car is generally in conformity with the scope of the policy, upon the insured's merely giving notice that he has purchased it. In spite of some rather broad definitions, I think that insurance which can be extended by a mere notice from the insured and without any new contract can be fairly called "automatic" insurance, though perhaps "renewable" would be a better term. At any rate, I would not call the entire provision, including the title, ambiguous.
Nor do I think it is so misleading as to bring it within the line of decisions in which the courts have voided conditions printed in small type and unlikely to be read by the party who receives the printed document.
Obviously a caption cannot be a complete and accurate description of everything in the clause. It is merely intended to call attention to it. While it is just possible that one might jump to the conclusion that the policy was giving unconditional and unqualified automatic insurance on all substituted cars of whatever kind and under all circumstances, I think it more likely that anyone who really took time to read the policy at all would have notice that the automatic insurance mentioned was subject to a number of conditions, and would probably read them to find out what they were. As long as insurance policies are contracts and not merely the assuming of legal relations prescribed by policy or statute, we can hardly go to the extent of requiring them to be drawn so that people who read nothing but the titles of the clauses will be completely informed of everything that is in the policy.
A judgment may be entered to the effect that the Insurance Company is not liable on its policy under the conditions stated herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382424/ | 22 Cal. 3d 760 (1978)
587 P.2d 227
150 Cal. Rptr. 785
JONATHAN WAYNE TRACY, Plaintiff and Respondent,
v.
THE MUNICIPAL COURT FOR THE GLENDALE JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Appellant; THE PEOPLE, Real Party in Interest and Appellant. GARY DONALD LOISEAU, Plaintiff and Respondent,
v.
THE MUNICIPAL COURT FOR THE CITRUS JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Appellant; THE PEOPLE, Real Party in Interest and Appellant.
Docket No. L.A. 30947.
Supreme Court of California.
December 14, 1978.
*762 COUNSEL
John H. Larson, County Counsel, and David B. Kelsey, Deputy County Counsel, for Defendants and Appellants.
John K. Van de Kamp, District Attorney, Harry B. Sondheim, Donald J. Kaplan and George M. Palmer, Deputy District Attorneys, for Real Party in Interest and Appellant.
Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Anita S. Brenner and Dennis A. Fischer, Deputy Public Defenders, for Plaintiffs and Respondents.
Harry V. Lehmann, Peter M. Weil and Fred Okrand as Amici Curiae on behalf of Plaintiffs and Respondents.
OPINION
MANUEL, J.
(1a) In these consolidated appeals we must decide whether indigent defendants charged with possession of less than an ounce of marijuana (Health & Saf. Code, § 11357, subd. (b)) are entitled to the assistance of appointed counsel and to trial by jury. In separate mandate proceedings the superior court held that such defendants are entitled to those rights on the ground that the offense is a misdemeanor and not an infraction. It entered judgments accordingly. The municipal *763 courts and the People appeal. Despite the fact that the offense is punishable only by a fine of $100, we conclude that the Legislature meant precisely what it said when it designated the offense a misdemeanor and therefore the judgments must be affirmed.
(2) At the outset we note that during the pendency of the appeal, respondent Loiseau appeared in the trial court represented by the public defender, waived jury trial, entered a guilty plea as charged, and paid a fine of $100. Since only the Loiseau appeal presents the issue of right to trial by jury, and because that issue is of broad public interest and is likely to recur, we exercise our inherent discretion to resolve the issue even though Loiseau's guilty plea has rendered it technically moot. (Ferrara v. Belanger (1976) 18 Cal. 3d 253, 259 [13 Cal. Rptr. 849, 555 P.2d 1089]; In re Law (1973) 10 Cal. 3d 21, 23 [109 Cal. Rptr. 573, 513 P.2d 621]; In re William M. (1970) 3 Cal. 3d 16, 23 [89 Cal. Rptr. 33, 473 P.2d 737].)
(1b) Appellants contend that the rights to appointment of counsel and to trial by jury are not required in prosecutions involving offenses punishable by fine only and that the Legislature did not intend to extend these rights to defendants charged with violation of subdivision (b) of section 11357.[1] They urge that despite its definition as a misdemeanor, the offense has all the attributes of a petty offense and is therefore only an infraction. They contend that a person charged with the offense has neither the right to trial by jury nor the right to appointed counsel.
Section 11357, subdivision (b) provides: "Except as authorized by law, every person who possesses not more than one avoirdupois ounce of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). Notwithstanding other provisions of law, if such person has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged, the previous convictions shall also be charged in the accusatory pleading and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, the provisions of Sections 1000.1 and 1000.2 of the Penal Code shall be applicable to him, and the court shall divert and refer him for education, treatment, or rehabilitation, without a court hearing or determination or the concurrence of the district attorney, to an appropriate community program which will accept him. If the person is so diverted and referred he shall not be subject to the *764 fine specified in this subdivision. If no community program will accept him, the person shall be subject to the fine specified in this subdivision. In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided by Section 853.6 of the Penal Code, and shall not be subjected to booking." (Amended by Stats. 1975, ch. 248, § 2, p. 641; Stats. 1976, ch. 1139, § 71, p. 5081, operative July 1, 1977; italics added.)
(3) In construing a statute to determine the intent of the Legislature the court "turns first to the words themselves for the answer." (People v. Knowles (1950) 35 Cal. 2d 175, 182 [217 P.2d 1]; see Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230 [110 Cal. Rptr. 144, 514 P.2d 1224]; Select Base Materials v. Board of Equal. (1959) 51 Cal. 2d 640 [335 P.2d 672].) (1c) The statute explicitly states that possession of small amounts of marijuana is a misdemeanor. In the absence of compelling countervailing considerations, we must assume that the Legislature "knew what it was saying and meant what it said." (People v. Rodriguez (1963) 222 Cal. App. 2d 221, 227 [34 Cal. Rptr. 907].) We find no such considerations here. Indeed, the plain meaning of the statute is supported by the legislative history and other aids to interpretation.
Consideration of the deletions, as well as additions, to proposed legislative enactments has traditionally served as an interpretative tool for the courts. (See, e.g., Dami v. Dept. Alcoholic Bev. Control (1959) 176 Cal. App. 2d 144, 148 [1 Cal. Rptr. 213].) The Legislature's first proposed bill, Senate Bill No. 95 (1975-1976 Reg. Sess.) sought to decriminalize the simple possession of three or less ounces of marijuana, other than concentrated cannabis, by classifying the offense as an infraction punishable by a fine of not more than $100. The final version of Senate Bill No. 95, which included the modification of section 11357, provided that unlawful simple possession of less than one ounce of marijuana is a misdemeanor punishable by a fine of not more than $100. That this change was deliberately made to settle how the offense would be classified clearly appears from the section's other provisions with respect to jury trial.
The statute provides for mandatory diversion upon conviction of the fourth offense. The provision for diversion requires that the prior convictions be charged in the accusatory pleading and be admitted by the defendant or "found to be true by the jury upon a jury trial or by the *765 court upon a court trial...." The reference to trial by jury was not in the original version of subdivision (b); it was added only after the amendment which reclassified the offense from an infraction to a misdemeanor. Thus, the Legislature recognized that, under the provisions of section 689 of the Penal Code,[2] a jury trial would be accorded to one charged with a misdemeanor and wished to make clear that, insofar as the priors were concerned, it was defendant's choice whether to admit them or leave them for determination by the trier of fact, the court or the jury.
Appellants contend, however, that despite the Legislature's deliberate decision to classify the offense as a misdemeanor, it should not carry with it the indicia of such a crime. There is no merit in this contention.[3]
(4) Subject to the constitutional prohibition of cruel and unusual punishment, the Legislature has the power and duty to define and classify crimes and offenses. (In re Lynch (1972) 8 Cal. 3d 410, 414 [105 Cal. Rptr. 217, 503 P.2d 921]; People v. Knowles, supra, 35 Cal.2d at p. 181.) In California, crimes and public offenses are classified as felonies, misdemeanors, and infractions. (Pen. Code, § 16.) "A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions." (Pen. Code, § 17, subd. (a); italics added.)
Prior to 1968 all crimes were classified as felonies and misdemeanors. In 1968 the third category, infractions, was added to the statutory scheme: Penal Code section 19c states that "[a]n infraction is not punishable by imprisonment" and that a person charged with an infraction is not entitled to a jury trial nor to appointed counsel except in specified instances not here relevant.[4]
(5) When the Legislature enacted section 19c of the Penal Code to set out the characteristics of, and procedures for, prosecution of an offense *766 designated an infraction, it did not provide that all offenses not punishable by imprisonment are infractions. It merely recognized that what might elsewhere be defined as an infraction could not be punished by imprisonment. Although the Legislature recognized this common denominator for all infractions, it did not thereby convert all misdemeanors not punishable by imprisonment to infractions. Thus, all offenses which are not felonies remain misdemeanors regardless of how they are punished except those offenses the Legislature chooses to classify as infractions (Pen. Code, § 17, subd. (a)). As in many other instances,[5] the Legislature has here chosen to classify the offense a misdemeanor punishable only by fine.
(6) A person charged with a misdemeanor is entitled to the assistance of court-appointed counsel (Pen. Code, § 686) and to a trial by jury (Pen. Code, § 689). (See also In re Smiley (1967) 66 Cal. 2d 606 [58 Cal. Rptr. 579, 427 P.2d 179]; Echavarria v. Justice Court (1971) 21 Cal. App. 3d 889, 893 [99 Cal. Rptr. 98]; Mills v. Municipal Court (1973) 10 Cal. 3d 288, 297-302 [110 Cal. Rptr. 329, 515 P.2d 273].) Since these rights are afforded by statute we express no opinion on the constitutional issues raised by the parties.
The judgments are affirmed.
Bird, C.J., Tobriner, J., Mosk, J., Clark, J., Richardson, J., and Newman, J., concurred.
NOTES
[1] All statutory references are to Health and Safety Code unless otherwise indicated.
[2] Section 689 of the Penal Code provides: "No person can be convicted of a public offense unless by verdict of a jury, accepted and recorded by the court, by a finding of the court in a case where a jury has been waived, or by a plea of guilty."
[3] For a careful and thoughtful analysis of the implications and impact of the legislation on the criminal justice system, see Uelmen, California's New Marijuana Law: A Sailing Guide for Uncharted Waters (1976) 51 State Bar J. 27.
[4] To date the Legislature has generally limited the classification of infractions to minor traffic violations. (See Veh. Code, § 40000.1 et seq.; People v. Prince (1976) 55 Cal. App.3d Supp. 19, 27-28 [127 Cal. Rptr. 296]; but see Health & Saf. Code, § 1909 [possession of animal in violation of rabies control statute]; Agr. Code, § 31401 [dog licensing and regulation].)
[5] Among the offenses classified as misdemeanors and punishable only by fine are Education Code section 32210 (willful disturbance of public school or public school meeting); Health and Safety Code section 3704 (use of common drinking cups by businesses); section 3803 (use of common towels by businesses); section 11360, subdivision (b) (giving away or transporting less than an ounce of marijuana); Labor Code section 2263 (failure to provide toilet and water facilities to employees in a theatre); Penal Code sections 374b and 374b.5 (dumping or littering roads or property); section 374e (littering waters). The Vehicle Code also contains provisions for only a fine in a number of offenses classified as misdemeanors (e.g., violation of weight regulations, §§ 40000.23, 42030).
We reject the People's characterization of these instances as "aberrations" of the statutory scheme. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568964/ | 35 F. Supp. 425 (1940)
SOUTHERN BELL TELEPHONE & TELEGRAPH CO.
v.
DONNELLY.
No. 188 T.
District Court, S. D. Florida.
September 3, 1940.
McKay, Macfarlane, Jackson & Ferguson, of Tampa, Fla., for plaintiff.
No counsel appeared for defendant.
BARKER, District Judge.
This cause coming on to be heard upon plaintiff's sworn complaint, and the testimony taken in support thereof, and it appearing to the court that default has been duly entered against the defendant, Fred F. Donnelly and Fred F. Donnelly doing business as Florida Directory Company, for failure of the said defendant to appear, plead, answer or otherwise defend in accordance with the rules of practice of this court, and the court being fully advised in the premises, does find:
Findings of Fact.
1. That this court has jurisdiction of the plaintiff, Southern Bell Telephone and Telegraph Company, a corporation, and of the defendant, Fred F. Donnelly and Fred F. Donnelly doing business as Florida Directory Company, and of the subject matter of this cause.
2. That Fred F. Donnelly was at all times during the years 1938 and 1939, the period material to the subject matter of this suit, the owner and operator of "Florida Directory Company", and that one J. Novotny, named in the complaint in this cause, at no time during the said period had an interest in the ownership of "Florida Directory Company", or a part in its operation, and that "Florida Directory Company" was, during the said period, and is, a trade-name used by the defendant, Fred F. Donnelly, in the publication of certain criss-cross directories hereinafter described.
3. That on or about May 19, 1939, plaintiff created, compiled and wrote an original book entitled, "Telephone Directory, Jacksonville, Florida, May, 1939, corrected through April 15, 1939, by William R. Whitaker, Directory Manager", and that said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "May 19th, 1939, Class AA, No. 299690", and that plaintiff is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
4. That subsequent to the perfection by the plaintiff of its copyright on the said book entitled "Telephone Directory, Jacksonville, Florida, May, 1939, corrected through April 15th, 1939, by William R. Whitaker, Directory Manager", the defendant, Fred F. Donnelly, doing business as and under the name of "Florida Directory Company", published and distributed his book entitled "Jacksonville Yellow Book Criss-Cross Telephone Directory, Jacksonville, Florida, July, 1939", and that said book was copied from plaintiff's copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of plaintiff's said copyright.
5. That on or about December 19, 1939, plaintiff created, compiled and wrote an original book entitled, "Telephone Directory, Jacksonville, Florida, December, 1938, corrected through November 15, 1938, by William R. Whitaker, Directory Manager", and that said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "December 19th, 1938, Class AA, No. 287402", and that plaintiff is the sole proprietor and owner of all right, title and *426 interest in and to its copyright on the said book.
6. That subsequent to the perfection by the plaintiff of its copyright on the said book entitled "Telephone Directory, Jacksonville, Florida, December, 1938, corrected through November 15th, 1938, by William R. Whitaker, Directory Manager", the defendant, Fred F. Donnelly, doing business as and under the name of "Florida Directory Company", published and distributed his book entitled "Jacksonville Yellow Book Criss-Cross Telephone Directory, Jacksonville, Florida, February, 1939", and that said book was copied from plaintiff's copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringment upon and violation of plaintiff's said copyright.
7. That on or about December 27, 1937, plaintiff created, compiled and wrote an original book entitled, "Telephone Directory, Mobile, Alabama, December, 1937, corrected through November 24th, 1937, by William R. Whitaker, Directory Manager", and that said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "December 27th, 1937, Class AA, No. 255296", and that plaintiff is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
8. That subsequent to the perfection by the plaintiff of its copyright on the said book entitled "Telephone Directory, Mobile, Alabama, December, 1937, corrected through November 24th, 1937, by William R. Whitaker, Directory Manager", the defendant, Fred F. Donnelly, doing business as and under the name of "Donnelly Publishing Company", published and distributed his book entitled "Donnelly's Yellow Book Criss-Cross Telephone Directory, Mobile, Alabama, 1938", and that said book was copied from plaintiff's copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of plaintiff's said copyright.
9. That on or about June 25, 1938, plaintiff created, compiled and wrote an original book entitled, "Telephone Directory, Nashville, Tennessee, June, 1938, corrected through May 25th, 1938, by William R. Whitaker, Directory Manager", and that said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "June 25th, 1938, Class AA, No. 271721", and that plaintiff is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
10. That subsequent to the perfection by the plaintiff of its copyright on the said book entitled "Telephone Directory, Nashville, Tennessee, June, 1938, corrected through May 25th, 1938, by William R. Whitaker, Directory Manager", the defendant, Fred F. Donnelly, doing business as and under the name of "Donnelly Publishing Company", published and distributed his book entitled, "Donnelly's Yellow Book Criss-Cross Telephone Directory, Nashville, Tenn., July, 1938", and that said book was copied from plaintiff's copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of plaintiff's said copyright.
11. That on or about May 8, 1936, the Lexington (Ky.) Telephone Company, Incorporated, created, compiled and wrote an original book entitled, "Lexington (Ky.) Telephone Directory, May, 1936, by Lexington Telephone Company, Inc., of the United States", and that said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "May 8th, 1936, Class AA, No. 203796", and that Lexington (Ky.) Telephone Company, Incorporated, is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
12. That subsequent to the perfection by Lexington Telephone Company, Incorporated, of its copyright on the said book entitled "Lexington (Ky.) Telephone Directory, May, 1936, by Lexington Telephone Company, Inc., of the United States", the defendant, Fred F. Donnelly, doing business as and under the name of "Donnelly Publishing Company", published and distributed his book entitled "Donnelly's Yellow Book Criss-Cross Telephone Directory, Lexington, Ky., 1936 Edition", and that the said book was copied from Lexington Telephone Company, Incorporated's, *427 copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of Lexington Telephone Company, Incorporated's said copyright.
13. That on or about June 1, 1937, Lexington Telephone Company, Incorporated, created, compiled and wrote an original book entitled "Lexington (Ky.) Telephone Directory, June, 1937, corrected to April 12th, 1937, by Lexington Telephone Company, Inc.", and that the said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "June 1st, 1937, Class AA, No. 238600", and that Lexington Telephone Company, Incorporated, is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
14. That subsequent to the perfection by Lexington Telephone Company, Incorporated, of its copyright on the said book entitled "Lexington (Ky.) Telephone Directory, June, 1937, corrected to April 12th, 1937, by Lexington Telephone Company, Inc.", the defendant, Fred F. Donnelly, doing business as and under the name of "Donnelly Publishing Company", published and distributed his book entitled "Donnelly's Yellow Book Criss-Cross Telephone Directory, Lexington, Ky., 1937-1938", and that the said book was copied from Lexington Telephone Company, Incorporated's, coprighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of Lexington Telephone Company, Incorporated's, said copyright.
15. That on or about June 7th, 1938, Lexington Telephone Company, Incorporated, created, compiled and wrote an original book entitled, "Lexington (Ky.) Telephone Directory, June, 1938", and that said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "June 7th, 1938, Class AA, No. 271790", and that Lexington Telephone Company, Incorporated, is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
16. That subsequent to the perfection by Lexington Telephone Company, Incorporated, of its copyright on the said book entitled "Lexington (Ky.) Telephone Directory, June, 1938", the defendant, Fred F. Donnelly, doing business as and under the name of "Donnelly Publishing Company", published and distributed his book entitled "Donnelly's Yellow Book Criss-Cross Telephone Directory, Lexington, Ky., 1938-1939", and that the said book was copied from Lexington Telephone Company, Incorporated's, copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of Lexington Telephone Company, Incorporated's, said copyright.
17. That on or about January 4, 1938, the Peninsular Telephone Company, a Florida corporation, created, compiled and wrote an original book entitled, "Telephone Directory for Tampa, Florida, No. 68, January, 1938, Issue, corrected to December 1st, 1937", and that said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "January 4th, 1938, Class AA, No. 252984", and that Peninsular Telephone Company, a Florida corporation, is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
18. That subsequent to the perfection by Peninsular Telephone Company, a Florida corporation, of its copyright on the said book entitled "Telephone Directory for Tampa, Florida, No. 68, January, 1938, Issue, corrected to December 1st, 1937", the defendant, Fred F. Donnelly, doing business as and under the name of "Donnelly Publishing Company", published and distributed his book entitled "Donnelly's Yellow Book Criss-Cross Telephone Directory, Tampa, Florida, 1938", and that the said book was copied from Peninsular Telephone Company's copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of Peninsular Telephone Company's said copyright.
19. That on or about July 5th, 1938, Peninsular Telephone Company, a Florida corporation, created, compiled and wrote an original book entitled "Telephone Directory *428 for St. Petersburg, Florida, No. 62, July, 1938 Issue, corrected to June 1st, 1939, by Peninsular Telephone Company", and that the said book was duly published, copyrighted and registered under the Acts of Congress applicable thereto, and that certificate of registration was issued thereon, dated and identified as follows: "July 5th, 1938, Class AA, No. 273061", and that Peninsular Telephone Company, a Florida corporation, is the sole proprietor and owner of all right, title and interest in and to its copyright on the said book.
20. That subsequent to the perfection by Peninsular Telephone Company, a Florida corporation, of its copyright on the said book entitled "Telephone Directory for St. Petersburg, Florida, No. 62, July, 1938 Issue, corrected to June 1st, 1939, by Peninsular Telephone Company", the defendant, Fred F. Donnelly, doing business as and under the name of "Donnelly Publishing Company", published and distributed his book entitled "Donnelly's Yellow Book Criss-Cross Telephone Directory for St. Petersburg, Florida, August, 1938", and that the said book was copied from Peninsular Telephone Company's copyrighted book aforesaid, and that the action and conduct of the defendant, Fred F. Donnelly, as aforesaid, constitutes an infringement upon and violation of Peninsular Telephone Company's said copyright.
21. That the action and conduct of the defendant, Fred F. Donnelly, in copying the copyrighted books of the plaintiff and of other telephone companies, has been continuous and persistent, and constitutes a scheme or plan by which the defendant, Fred F. Donnelly, has wrongfully and illegally made use of the copyrighted material of the plaintiff and of other telephone companies for his own gain and profit.
22. That the defendant, Fred F. Donnelly, has heretofore been enjoined by this court for his action and conduct, as aforesaid, in the following instances:
(a) From infringing plaintiff's copyright for its copyrighted book entitled "Telephone Directory Nashville, Tennessee, June 5, 1938, corrected through May 5, 1938, by William R. Whitaker, Directory Manager";
(b) From infringing the copyrights of Lexington Telephone Company, Inc., a corporation, for its copyrighted books entitled "Lexington (Ky.) Telephone Directory, May, 1936, by Lexington Telephone Company, Inc. of the United States", "Lexington (Ky.) Telephone Directory, June, 1937, corrected to April 12, 1937, by Lexington Telephone Company, Inc.", and "Lexington (Ky.) Telephone Directory, June, 1938";
(c) From infringing the copyrights of Peninsular Telephone Company, a corporation, for its copyrighted books entitled "Telephone Directory for Tampa, Florida, No. 68, January, 1938, Issue, corrected to December 1, 1937", and "Telephone Directory for St. Petersburg, Florida, No. 62, July 1, 1938, Issue, corrected to June 1, 1938, by Peninsular Telephone Company;
That such injunctive orders have merely stopped the further publication and distribution of the particular criss-cross directory which was the subject of the particular suit in which the order was made; that such separate suits and separate injunctions issued therein are ineffective to prevent the defendant, Fred F. Donnelly, from making use of the copyrighted material of the plaintiff and of other telephone companies for his own gain and profit pursuant to the scheme or plan aforesaid, because in each suit the harm and injury complained of has been done prior to the issuance of the injunctive order.
23. That the institution of a separate suit for each infringement upon and violation of copyrights held by the plaintiff results in a multiplicity of suits and an undue and unwarranted burden upon the courts, and does not prevent the harm and injury complained of and the wrongful appropriation of copyrighted material by the defendant; that the scheme or plan by which the defendant, Fred F. Donnelly, makes use of the copyrighted material of the plaintiff for his own gain and profit, causes plaintiff to suffer great and irreparable damage and injury not capable of accurate financial admeasurement.
24. That publication by said defendant, Fred F. Donnelly, of the criss-cross directories hereinbefore described for the cities of Jacksonville, Florida; Mobile, Alabama; Montgomery, Alabama; and Nashville, Tennessee, copied from plaintiff's copyrighted directories of its telephone exchanges located in said cities and listing its subscribers therein imposes an additional burden upon plaintiff's facilities in its said exchanges and an added expense of operation *429 and constitutes an illegal interference with plaintiff's business.
25. That by reason of the infringement upon plaintiff's copyright in and to the book entitled "Telephone Directory, Jacksonville, Florida, May, 1939, corrected through April 15th, 1939, by William R. Whitaker, Directory Manager", by the defendant, Fred F. Donnelly, and Fred F. Donnelly doing business as "Florida Directory Company", the plaintiff has suffered damages in the amount of $250; that by reason of the infringement upon plaintiff's copyright in and to the book entitled "Telephone Directory, Jacksonville, Florida, December, 1938, corrected through November 15th, 1938, by William R. Whitaker, Directory Manager", by the defendant, Fred F. Donnelly, and Fred F. Donnelly doing business as "Florida Directory Company", the plaintiff has suffered damages in the amount of $250.
Conclusions of Law.
1. That the equities in this cause are with the plaintiff, and that the plaintiff is entitled to the relief prayed for in the complaint.
2. That the copyrights of the plaintiff and of other telephone companies hereinabove mentioned have, in each case, been acquired by the owner thereof as aforesaid in accordance with law and the Acts of Congress applicable thereto.
3. That the plaintiff is entitled to a permanent injunction against the defendant, Fred F. Donnelly and Fred F. Donnelly doing business as "Florida Directory Company", enjoining and restraining him from infringing upon plaintiff's copyrights in and to any and all directories published by plaintiff in the course of its business, for which it holds or may hereafter hold a copyright, whether said directories have been heretofore published or shall, in the future, be published, and whether the copyright thereto has been heretofore granted, or shall, in the future, be granted, and from otherwise interfering with the telephone service and business of plaintiff by printing, publishing and selling, or causing to be printed, published and sold, or by distributing or causing to be distributed, any directories containing the names of plaintiff's subscribers, or containing the telephone numbers or addresses of subscribers served by plaintiff, the information for which has been obtained from any directory of plaintiff to which plaintiff has acquired, or in the future may acquire, a copyright, and from further persisting in carrying on or prosecuting the scheme or plan of making use of copyrighted material of the plaintiff by copying and distributing the same in criss-cross directory form or in any other form for gain and profit.
4. That the plaintiff is entitled to a permanent injunction against the defendant, Fred F. Donnelly and Fred F. Donnelly doing business as "Florida Directory Company", specifically enjoining and restraining him from infringing upon the copyright of the plaintiff in and to the book entitled "Telephone Directory, Jacksonville, Florida, May, 1939, corrected through April 15th, 1939, by William R. Whitaker, Directory Manager", and the copyright of the plaintiff in and to the book entitled "Telephone Directory, Jacksonville, Florida, December, 1938, corrected through November 15th, 1938, by William R. Whitaker, Directory Manager", in any manner and by and through any persons whomsoever.
It is thereupon ordered, adjudged and decreed that the defendant, Fred F. Donnelly and Fred F. Donnelly doing business as "Florida Directory Company", his agents, servants and employees, be, and they are, hereby permanently enjoined and restrained from infringing upon plaintiff's copyrights in and to any and all directories published by plaintiff in the course of its business, for which it holds or may hereafter hold a copyright, whether said directories have been heretofore published or shall, in the future, be published, and whether the copyright thereto has been heretofore granted or shall in the future be granted, and from otherwise interfering with the telephone service and business of plaintiff by printing, publishing and selling, or causing to be printed, published or sold, or distributing or causing to be distributed, any directories containing the names of plaintiff's subscribers, or telephone numbers, or addresses of subscribers served by the plaintiff, the information for which has been obtained from any directory of plaintiff, for which plaintiff has acquired, or in the future may acquire, a copyright; and from further persisting in, carrying on, or prosecuting, the scheme or plan of making use of the copyrighted material of the plaintiff by *430 copying and distributing the same in criss-cross directory form or in any other form for gain and profit; and that the temporary injunction herein be, and the same is, hereby made absolute.
It is further ordered, adjudged and decreed that the defendant, Fred F. Donnelly, and Fred F. Donnelly doing business as "Florida Directory Company", his agents, servants and employees, be, and they are, hereby enjoined from infringing upon the copyright of the plaintiff in and to the book entitled "Telephone Directory, Jacksonville, Florida, May, 1939, corrected through April 15th, 1939, by William R. Whitaker, Directory Manager", and the copyright of the plaintiff in and to the book entitled "Telephone Directory, Jacksonville, Florida, December, 1938, corrected through November 15th, 1938, by William R. Whitaker, Directory Manager", in any manner and by and through any persons whomsoever.
It is further ordered, adjudged and decreed that the defendant, Fred F. Donnelly, and Fred F. Donnelly doing business as "Florida Directory Company", be, and he is, hereby directed and commanded to deliver up on oath to the marshal of this court for destruction, all copies of his book, entitled "Jacksonville Yellow Book Criss-Cross Telephone Directory, Jacksonville, Florida, July, 1939", and of his book entitled "Jacksonville Yellow Book Criss-Cross Telephone Directory, Jacksonville, Florida, February, 1939", as well as all plates, molds, matrices and other means for making copies of the said books now in his possession; and that the marshal of this court be, and he is, hereby directed to destroy the same within five days after their delivery to him, making return of his act in the premises to this court.
It is further ordered, adjudged and decreed that the plaintiff, Southern Bell Telephone and Telegraph Company, a corporation, do have and recover from the defendant, Fred F. Donnelly, and Fred F. Donnelly doing business as Florida Directory Company, the sum of $500 damages, together with its costs in this behalf expended, for which let execution issue.
It is further ordered, adjudged and decreed that the clerk of this court be, and he is, hereby directed to enter this judgment of record in this cause.
Done, ordered, adjudged and decreed at Tampa, Florida, this 3rd day of September, 1940. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1568967/ | 35 F. Supp. 638 (1940)
FINN
v.
SCHREIBER et al.
Civ. No. 470.
District Court, W. D. New York.
November 7, 1940.
*639 Gerald R. Barrett, of Rochester, N. Y., for plaintiff.
Alger A. Williams, of Buffalo, N. Y., for defendants.
KNIGHT, District Judge.
The defendants move for judgment under subdivision (b) of Rule 12 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, on the ground that the court lacks jurisdiction of the persons of the defendants. The action is in negligence. Service of the summons and complaint was made upon the Secretary of State of New York, allegedly pursuant to the provisions of Section 52 of the Vehicle and Traffic Law of the State of New York, Consol.Laws N.Y. c. 71. Assuming for the purposes of this motion that the matters as alleged in the complaint are true, the facts are these. On or about April 9, 1940, the Schreiber Trucking Company, by its employee, defendant Good, was operating a truck in the village of Webster, Monroe County, New York, and, when near the plaintiff's Gas Service Station, one of the tires of said truck went flat. The truck was driven by defendant Good into plaintiff's station "near the air pump tower." While the spare tire was being inflated by the plaintiff, the lock rim was forced off the tire and propelled against plaintiff, causing the injuries alleged. It is the claim of the plaintiff that the spare tire was knowingly defective and that plaintiff was directed to inflate it beyond its capacity.
Section 52 aforesaid, so far as pertinent, provides that: "The operation by a nonresident of a motor vehicle * * * on a public highway in this state, or the operation on a public highway * * * of a motor vehicle * * * owned by a nonresident if so operated with his consent, * * * shall be deemed equivalent to an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such a public highway * * *." The constitutionality of this statute is not here in question. There could be little question of such *640 constitutionality in the light of the decision in Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091, which held constitutional the Massachusetts statute, Chapter 90 General Laws of Mass., as amended by Stat.1923, Sec. 2, which statute is in material substance the same as that of Section 52, supra. The courts in numerous states have held similar statutes constitutional. Vide: Cohen v. Plutschak, D.C., 40 F.2d 727, 729; Moore v. Payne, D.C., 35 F.2d 232; Schilling v. Odlebak, 177 Minn. 92, 224 N.W. 694, 695; Ashley v. Brown, 198 N.C. 369, 373, 151 S.E. 725, 728; O'Tier v. Sell, 226 A.D. 434, 235 N.Y.S. 534.
The accident happened somewhere upon the premises of the plaintiff. While it does not so appear from the complaint, it is stated in the plaintiff's memorandum that the deflated tire was being replaced "in that portion of the station devoted to public parking." In the view here taken, it is not material whether this took place within the garage proper or in the parking place outside thereof. It is not believed that either is within the confines of the "public highway", as defined in Section 2 of the Vehicle and Traffic Law of the State of New York. Subsection 2, of said section, defines a "public highway" as including "any highway, road, street, avenue, alley, public place, public driveway or any other public way," and subsection 3 defines a "`street' or `roadway'" as including "that part of the public highway intended for vehicular travel." The alleged accident happened in the village of Webster. Ordinarily a highway within a village is termed a street. The complaint does not describe the plaintiff's gas station as located upon a street. No distinction can be drawn, however, dependent upon whether the gas station was located upon a street or a public highway, since a public highway includes any "street."
In Hess v. Pawloski, supra, the decision was based upon the right of the state under its police power to regulate the use of the public highways by nonresidents as well as by residents, and the distinction is made clear between such an act and one which would exclude a nonresident from doing business within the state. The court there points out that in such latter case actual service must be made upon the individual to give jurisdiction. Following this decision of the Supreme Court, it is obvious that Section 52 would be unconstitutional if it was intended to permit service on residents of other states as therein provided in actions not arising from a negligent use of the public highways. This section 52 specifically applies only to accidents or collisions where the vehicle was being operated on a public highway. Concededly the replacement of the tire was not made on "any highway, road, street, avenue, alley." Was this garage or its parking place a "public place, public driveway or any other public way"? The plaintiff invited the public to use the parking way and the garage. It was being used in a public way and by the public. The same may be said of any privately owned store or amusement place. The public is freely invited to these places. It is invited for business purposes. The same situation exists as regards the gas station. The plaintiff invited the public there for his own benefit, but plaintiff, as the storekeeper or as the owner of the amusement place, has the right at any time to bar the public, or in other words, close the doors or gates to the place of business. Not so with the public highway or public way as it is believed that term should be construed. Such is a place to which the public has the right to go, and the use of which it has the right to have, under reasonable restrictions at all times. The distinction is between the right of individual control of the use and the uniform right to use to all. The former is private; the latter public. Section 52 is in derogation of the Common Law, and it must be strictly construed. In Madison Products Co., Inc. v. Coler, 242 N.Y. 467, 152 N.E. 264, 266, the court said: "The meaning of the words `streets,' and `public places' naturally suggests those places in a city which are open to the general public and upon the use of which by the general public there is no limitation except that which may be required in the interest of safety and good order. We can take judicial notice that this is not the character of a home, private office or factory. * * * No one comes there except by the permission of the owner or proprietor, and, if he desires to close the door against all comers at any time, he is at liberty to do so." In Sylvester v. Brockway Motor Trust Corp., 232 A.D. 364, 250 N.Y.S. 35, where an accident happened on the grounds of Saratoga Race Track in that state, the court held that the grounds were not a "public place" as defined in the Vehicle and Traffic Law.
Attention of the court is directed to the case of Haughey, Adm'x v. Mineola Garage, *641 174 Misc. 332, 20 N.Y.S.2d 857, 858, in which an order was granted setting aside a Summons served in pursuance of Section 52, supra. I have not the complaint before me, but the uncontradicted statement in defendant's memorandum is that this case involved an accident occurring in a garage. The court there held that "automobile of the defendant Davis was not being operated upon a public highway at the time of the accident." It also said: "The relief afforded by the above statute is in derogation of the common law and must therefore be strictly construed." Vide also Zielinski v. Lyford, N.Y.Supreme Court, Sup.Ct., Erie County, Nov. 4, 1940. 175 Misc. 517, 23 N.Y.S.2d 489, decision by Swift, J.
Aside from the contention that the locale where this re-tiring was being done was a public place, it is claimed that the blow-out, which occurred upon the public highway, is "directly connected with or proximate to the accident or misadventure which caused the original flat tire on defendant's truck. The injury is proximate to the original accident, since if it were not for that first flat tire, there would be no need of inflating the tire." It is claimed that it must be construed here that this accident must be considered to have "arisen from and grown out of defendant's use of the public highway of the State of New York," by reason of these facts and that, therefore, it can be maintained. It does not seem that there can be any substance in this contention. The negligence is alleged to have been sustained by virtue of the act of defendant's employee. It is true that the injuries would not have resulted if there had been no flat tire, but the negligent act itself was not a necessary cause of the injury. It was entirely disconnected with it insofar as the acts constituting negligence are concerned. As well it might be urged that where an individual had suffered personal injuries in a collision upon the highways and had subsequently gone into some gasoline station where, in an enfeebled condition, he sustained injuries caused by some person on such private premises but the latter injuries are necessarily connected with the former. There is nothing in the instant case to show that the flat resulted from any "accident or collision" within the meaning of these words as used in Section 52. Further, there is nothing in the case to show that this flat resulted from causes incident to the use of the highway. It may have been caused by perforation or puncture when the truck was off the highway. We presume that it went flat near the plaintiff's station, but the thing that caused it may have resulted from conditions off from the highway.
The motion is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569002/ | 35 F. Supp. 790 (1940)
GEIST
v.
PRUDENTIAL INS. CO. OF AMERICA.
No. 826.
District Court, E. D. Pennsylvania.
November 27, 1940.
*791 Thomas Z. Minehart, of Philadelphia, Pa., for plaintiff.
Frederick J. Shoyer, of Philadelphia, Pa., for defendant.
BARD, District Judge.
The plaintiff instituted suit against the defendant in the Court of Common Pleas for the County of Philadelphia, Pennsylvania, to recover as beneficiary under a policy of insurance issued by the defendant on the life of her son, William J. Geist, who died at Baltimore, Maryland, on the 8th day of March, 1939. Upon petition by the defendant, after the statement of claim had been filed and served, the suit was removed to this court. The defendant then filed an answer with new matter and the plaintiff filed a reply, as under the Pennsylvania Practice Act of 1915, P.L. 483, 12 P.S.Pa. § 382 et seq.
The defendant has moved for judgment against the plaintiff and in favor of the defendant on all the pleadings. Such a motion is authorized by Rule 12(c) of The Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723(c).
A judgment will not be rendered on the pleadings unless the right thereto is clear. All well-pleaded facts and all fair inferences to be drawn therefrom are admitted by the moving party. Ulen Contracting Corp. v. Tri-County Electric Coop., D.C., 1 F.R.D. 284. Finally, judgment is proper only when no material issue of fact is presented by the pleadings. Interstate Commerce Commission v. Frye, D.C., 26 F. Supp. 393; Phnix Hardware Co. v. Paragon Paint & Hardware Corp., D.C., 1 F.R.D. 116.
In support of its motion for judgment on the pleadings, the defendant asserts that since none of the replies of the plaintiff to the averments set forth in the defendant's "affidavit of defense" (answer) is sufficient in law, judgment should be entered in favor of the defendant. This argument overlooks Section 38 of the Judicial Code, 28 U.S.C.A. 81: "The district court of the United States shall, in all suits removed under the provisions of this chapter, proceed therein as if the suit had been originally commenced in said district court, * * *". The pleadings in a case removed from a state court must, therefore, conform to the federal rules of practice. According to Rule 7(a) of the Federal Rules of Civil Procedure, "* * * there shall be a reply, if the answer contains a counterclaim denominated as such. * * * No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer." The plaintiff's reply is, therefore, a superfluous pleading which in no manner binds the plaintiff or affords a basis for judgment on the pleadings. Therefore, its merits are of no concern. Central Trust Co. of Altoona, Pa., v. Second National Bank of Altoona, Pa., D.C., 1 F.R. D. 98.
There is no question as to the propriety of a judgment on the complaint and answer, except, of course, that due regard must be had for the qualifications to such judgments as above noted.
Concerning the pleadings which are properly before me, and which must afford the basis for judgment, the motion for judgment on these pleadings is founded on the ground that the complaint fails to state a claim upon which relief can be granted and that the complaint is insufficient by reason of its failure to aver satisfaction of all the conditions precedent to the defendant's obligation. The complaint does aver, however, that "plaintiff has done and performed all things by her to be done and performed under the terms and conditions of the said policy or agreement sued upon except such as are waived or rendered unnecessary by the action of the defendant company".
Defendant specifically avers in its answer that the insured failed to pay a premium on the policy due on January 1, 1939. However, a policy of life insurance complete in all its terms, containing a formal acknowledgment of the payment of the first premium, was duly issued and executed on April 1, 1937, and was in the beneficiary's possession after the death of the insured. These facts are averred and would seem to establish a prima facie case. Brandis v. Empire State Life Assur. Soc., 315 Pa. 558, 174 A. 104.
Although in the Brandis case the issue involved the payment of the first premium, the complaint in the instant case contains sufficient averments to bring the *792 issue to trial. "The burden of proving the non-payment of premiums is on the insurer." 14 R.C.L. 1437.
It is true that the plaintiff may not be able to recover if the evidence at the trial discloses a nonpayment of the premium. This issue can be raised at the trial and no injustice will result in denying the present motion for judgment.
The motion is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569911/ | 985 F. Supp. 640 (1997)
DEE-K ENTERPRISES, INC., et al., Plaintiffs,
v.
HEVEAFIL SDN. BHD., et al., Defendants.
No. Civ.A. 97-556-A.
United States District Court, E.D. Virginia, Alexandria Division.
December 23, 1997.
*641 Joel Davidow, Sturgis M. Sobin, Ablondi, Foster, Sobin & Davidow, P.C., Michael D. Hausfeld, Daniel A. Small, Paul T. Gallagher, Cohen, Milstein, Hausfeld & Toll, PLLC, Washington, DC, for Plaintiffs.
Walter J. Spak, Anne D. Smith, Carolyn B. Lamm, Denise L. Diáz, George L. Paul, Francis A. Vasquez Jr., White & Case, Washington, DC, for Heveafil Sdn. Bhd., Filmax Sdn. Bhd., Rubfill Sdn. Bhd., Rubberflex Sdn. Bhd., Filati Lastex Sdn. Bhd., Filati Lastes Elastofibre USA, Inc., Filati Corp. of RI, Filati Corp. of NC, Rubfil USA, Inc., and P.T. Bakrie Rubber Industry.
David M. Foster, Joseph T. Small, Christine P. Hsu, Fulbright & Jaworski, LLP, Washington, DC, for JPS Elastomerics Corp.
James A. West, James A. West, PC, Houston, TX, for Consortium International Corp.
*642 MEMORANDUM OPINION
ELLIS, District Judge.
In this international antitrust action, plaintiffs allege a conspiracy between and among various foreign manufacturers of extruded rubber thread and their distributors to fix prices of the thread in the United States. The underlying facts are set out in full in an earlier Memorandum Opinion in this matter. See Dee-K Enterps., Inc. v. Heveafil Sdn. Bhd., 982 F. Supp. 1138 (E.D.Va.1997).
The matter now before the Court is a motion by several defendants to dismiss for improper venue pursuant to Rule 12(b)(3), Fed.R.Civ.P. The facts pertinent to this motion may be succinctly stated. The named defendants fall into two groups: (i) Malaysian, Indonesian, and Thai manufacturers of extruded rubber thread, and (ii) the American distributors of the thread. None of these defendants is located in the Eastern District of Virginia. Moreover, no defendant transacts business in this District; defendant Consortium International Corp. ("Consortium") has supplied thread to plaintiff Dee-K Enterprises, Inc. ("Dee-K") in Virginia, but all of those transactions took place in the Western District of Virginia. Thus, certain defendants contend that venue is improper in this District. Several defendants also moved to dismiss this action for lack of personal jurisdiction and for failure to state a claim; these motions were denied by the earlier Memorandum Opinion. Left undecided by that Memorandum Opinion, however, was defendants' motion to dismiss for improper venue. See Dee-K, 982 F.Supp. at 1148-49. Accordingly, by Order dated October 23, 1997, plaintiffs were directed to file a memorandum concerning the propriety of venue in the Eastern District of Virginia. Plaintiffs have filed such a memorandum, and defendants have filed their responses. Thus, the matter is now ripe for disposition.
I
The threshold question is whether the venue objection has been waived. Plaintiffs contend that each defendant either failed to raise an objection to venue in its first responsive pleading or Rule 12 motion, as required by Rule 12(h)(1), Fed.R.Civ.P., or waived its objection to venue by later asserting a counterclaim. Plaintiffs' contention is correct as to all defendants but one.
Plaintiffs filed their complaint on April 17, 1997. Nine defendants (the "Malaysian defendants") filed their first Rule 12 motion on June 9, 1997, and did not challenge venue in that pleading. Three of those defendants, namely Rubfil USA, Inc., Flexil Corp., and Filati Lastex Elastofibre USA, Inc., contend that they were not required to raise an improper-venue defense at that time because the defense was not "then available." See Rules 12(g), (h), Fed.R.Civ.P. (providing that defense is waived only for objections "then available," i.e., available at the time the first pleading was filed). These domestic defendants base their contention on the erroneous proposition that simply because the original complaint was sufficiently vague to warrant dismissal for lack of specificity,[1] it must also have been so vague as to obscure whatever basis for venue might have existed at that time. Thus, the domestic defendants argue they were not able to discern whether venue was proper in this District until plaintiffs filed their more specific, amended complaint and indicated precisely which of defendants' acts constituted the alleged conspiracy. This argument amounts to the assertion that the domestic defendants could not, on their own, have known whether or not they conducted any business in this District such that venue here would be proper until plaintiffs identified specific alleged conduct in this District that they believed violated the antitrust laws.
This argument is unpersuasive. First, these domestic defendants certainly knew the scope and details of their business activities, and thus they knew whether they resided, transacted business, or could be found in this District. See 28 U.S.C. § 1391 (setting forth criteria for proper venue). Therefore, they cannot now claim that they were unaware of a potential objection to venue *643 at the time the original complaint was filed. Had a venue objection then been available, they could and should have raised it at that time.[2] Second, and more important, because improper venue is an affirmative defense, allegations showing that venue is proper need not be included in the complaint.[3] It follows that the Malaysian defendants have waived any objection to venue they might have had.
Yet another defendant, PT Bakrie Rubber Industry, filed its first Rule 12 motion on June 17, 1997, and did not raise a venue objection therein. Thus, it too has waived any venue objection. Three more defendants, PT Perkebunan III ("Perkebunan"), Natural Rubber Thread Co., and Longtex Rubber Industries, are in default, and thus they have waived all venue objections. See Hoffman v. Blaski, 363 U.S. 335, 343, 80 S. Ct. 1084, 1089, 4 L. Ed. 2d 1254 (1960). In any event, venue is proper in this District as to all of these foreign defendants pursuant to 28 U.S.C. § 1391(d).[4]
Consortium, the last remaining defendant, by contrast did preserve its objection to venue, which it raised in response to both the first amended complaint and the second amended complaint.[5] Plaintiffs now assert, however, that because Consortium has filed a counterclaim in this action, it has waived its improper-venue defense. Plaintiffs' argument has two flaws. First, though courts in the past have split on the issue, "the trend in more recent cases is to hold that no Rule 12(b) defense is waived by the assertion of a counterclaim, whether permissive or compulsory."[6] Charles A. Wright & Arthur R. Miller, supra, § 1397, at 790; see, e.g., Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131, 132 (D.C.Cir.1984) (R.B. Ginsburg, J.);[7]Neifeld v. Steinberg, 438 F.2d 423, 428 n. 10 (3rd Cir.1971) ("If [defendant] had raised his jurisdictional defenses by motion prior to filing his answer,[8] there would clearly have been no waiver."). The rationale supporting these cases is persuasive: To hold otherwise would controvert the dual goals of Rule 12 of (i) preventing the delay inherent in filing successive motions and (ii) abolishing the common law practice of raising jurisdictional defenses by "special appearances." See Gates, 743 F.2d at 1330 n. 1.
Second, plaintiffs' argument overlooks the undeniable fact that Consortium did indeed object to venue at its first opportunity. Were plaintiffs correct that the filing of a counterclaim in effect nullifies a defendant's threshold venue objection, defendants such as Consortium would be caught in a Hobson's choice: they might either file an answer and counterclaim as required by Rules 12 and 13, Fed.R.Civ.P., and forego the venue defense; or preserve the venue defense, but then find themselves either in default for not answering or forever foreclosed from asserting a compulsory counterclaim. Clearly the Federal Rules do not compel or contemplate such *644 a result.[9] In short, Consortium's timely venue objection is not erased by the subsequent filing of a counterclaim.
II
The next task, then, is to evaluate Consortium's venue objection to determine if venue is properly laid in this District.
As to the American defendants, venue is proper in
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ... or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b) (stating the venue rules for federal-question cases). In the case at bar, neither (1) nor (2) applies; thus, venue is proper as to all the American defendants in any district where one of them may be found.[10]
Dee-K, 982 F.Supp. at 1148-49.
Notwithstanding the earlier Memorandum Opinion's holding that venue, if proper at all, would be proper under § 1391(b)(3), plaintiffs now argue that venue is proper under § 1391(b)(1). That section requires that all defendants reside in-state, and that at least one defendant reside in the forum district. To prove that the foreign defendants reside in Virginia, plaintiffs rely on § 1391(d), which allows foreign defendants to be sued in any district. Plaintiffs suggest that because the foreign producer-defendants are subject to suit in this District by virtue of § 1391(d), those defendants also reside in this District. This they do in the face of the Court's earlier holding, reprinted here at footnote 10, that the fact that an alien can be sued in this District does not mean that it resides or can be found here. See 982 F.Supp. at 1148-49 n. 24. Plaintiffs' argument is no more persuasive the second time around.
As to four of the American distributor-defendants, plaintiffs do not attempt to show that they reside in Virginia. Instead, plaintiffs argue that these defendants are mere alter egos of their foreign producer-parents, and are thus subject to suit here. See, e.g., ABC Great States, Inc. v. Globe Ticket Co., 304 F. Supp. 1052, 1055 (N.D.Ill. 1969) (holding that when parent and subsidiary act "as a single entity," if venue is proper as to the parent, it is also proper as to the subsidiary). Even if the evidence were to confirm that the subsidiaries had no commercial independence from the parents,[11] that would not provide a basis for concluding that the four subsidiaries reside in this District, just as there is no basis for concluding that their four foreign parents reside here. Moreover, there would still remain another domestic distributor-defendant, Consortium, who plaintiffs impliedly concede is not the alter ego of its parent, Perkebunan.[12] Accordingly, *645 residency must be established separately as to Consortium, or plaintiffs venue choice must fail.
Plaintiffs allege (and Consortium does not dispute) that Consortium made sales to Dee-K and others in the Western District of Virginia. Yet plaintiffs place more weight on this fact than it can bear when they make the rather puzzling statement that "[b]ecause Consortium does business in the Western District of Virginia, it is ... deemed to reside there.... Venue is therefore proper in the Eastern District of Virginia...." Pl.'s Mem. at 7. Not only is this a non sequitur, it is a position directly at odds with the language of § 1391(c).[13] Pursuant to that section, Consortium would be deemed to reside in the Western District of Virginia. That fact could form the basis for proper venue pursuant to § 1391(b)(3) in the Western District, "a judicial district in which [a] defendant may be found." However, it does nothing to provide a basis for the conclusion that Consortium resides or can be found in the Eastern District.
Because they cannot establish that "all defendants reside in the same State," and furthermore, because there is no evidence that any defendant resides in the Eastern District of Virginia, plaintiffs are foreclosed from relying on § 1391(b)(1) as a basis for proper venue. In addition, the earlier Memorandum Opinion established that § 1391(b)(2) is of no avail to plaintiffs, see 1997 WL 662997, at *7, and plaintiffs have made no effort in their most recent memorandum to show that § 1391(b)(3) has been satisfied.[14] The inescapable conclusion is that venue does not properly lie in the Eastern District of Virginia.
III
When venue is improperly laid, the district court "shall dismiss, or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).[15] At the outset, it is worth noting that dismissal would be a proper remedy in this matter. When a plaintiff's attorney reasonably should have foreseen that the forum in which he filed an action was improper, dismissal is warranted. See Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1201 (4th Cir.1993) (affirming district court's ruling that a transfer would not serve the interests of justice when plaintiff's attorney "committed an obvious error in filing the plaintiff's action in the wrong court"). Lawyers, especially skilled attorneys such as plaintiffs' counsel, are expected to comply with the relatively straightforward jurisdictional and filing requirements set out in the Federal Rules of Civil Procedure. Here there was no plausible basis for believing venue was proper in this District. Although some of the alleged conspiratorial activity occurred in Floyd, Virginia, a cursory review of the configuration of the federal judicial districts would have revealed that city to be located in the Western District, not the Eastern District, of Virginia. See 28 U.S.C. § 127(b). Indeed, the only reasons one might discern for filing here are the celerity with which complex actions are disposed of in this District,[16] and the proximity of the Alexandria courthouse to plaintiffs' *646 counsel's offices in Washington, D.C. First, counsel's residence weighs little, if at all, in the venue inquiry. See Medicenters of Amer., Inc. v. T & V Realty & Equip. Corp., 371 F. Supp. 1180, 1184 (E.D.Va.1974). Second, while the potential for a prompt trial is not to be disregarded entirely in the interest-of-justice calculus, see Fannin v. Jones, 229 F.2d 368, 369 (6th Cir.1956), it certainly does not overcome the absence of proper venue.
Notwithstanding the conclusion that dismissal would be proper, a transfer is more appropriate in the circumstances. This is so given the substantial proceedings that have already occurred in this case, including, for example, initial discovery, entry of protective orders, briefing and resolution of Rule 12(b)(6) motions, and the filing of answers, counterclaims, and cross claims, and also given the accepted principle that every litigant is entitled to its day in court. Consortium suggests that, in the absence of dismissal, the case be transferred to the Western District of Virginia. The Malaysian defendants, by contrast, ask that if the action is not dismissed, it be transferred to the Western District of North Carolina. Thus, it is necessary to evaluate and balance the contacts each of those fora has with this matter.
Dee-K and other potential class members are located in the Western District of Virginia. Furthermore, Dee-K has filed a bankruptcy action in that District.[17] Other facts, however, tip the scales decisively in favor of transfer to the Western District of North Carolina. First, plaintiff Asheboro Elastics Corp. and other potential class members are located in that District. Second, of the five U.S. defendants, three are located, or have their records, in or near Charlotte, which is in the Western District of North Carolina.[18]See Verosol B.V. v. Hunter Douglas, Inc., 806 F. Supp. 582, 593 (E.D.Va.1992) (transferring to district where important documentary evidence and defendant's principal place of business were located). Third, according to the Malaysian defendants' affidavits, more witnesses, and especially non-party witnesses, are located in the Western District of North Carolina than in any other District. See Board of Trustees, Sheet Metal Workers Nat'l Fund v. Baylor Heating & Air Conditioning, 702 F. Supp. 1253, 1258 (E.D.Va. 1988) (finding that convenience of witnesses is an "often dispositive" factor for transfer); Eastern Scientific Mktg., Inc. v. Tekna-Seal, Inc., 696 F. Supp. 173, 179 (E.D.Va.1988) (refusing to transfer because some "necessary witnesses and files [were] located within the subpoena range" of the court in which the action was filed, but outside the subpoena range of the potential transferee court). Finally, a federal grand jury has been convened in Charlotte to investigate defendants' alleged conspiratorial conduct. See In re Anthracite Coal Antitrust Litigation, 436 F. Supp. 402, 403 (J.P.M.L.1977) (transferring civil antitrust action to forum in which grand jury was convened because "transfer to that forum will best facilitate any necessary coordination" between the civil and criminal actions). Accordingly, the Western District of North Carolina is the appropriate transferee forum.
IV
For the reasons stated above, venue in this District is improper. In lieu of dismissal pursuant to Rule 12(b)(3), Fed.R.Civ.P., this action will be transferred to the Western District of North Carolina, pursuant to 28 U.S.C. § 1406(a).
An appropriate Order will issue.
NOTES
[1] By Order dated July 15, 1997, the complaint was dismissed without prejudice for failure to state a claim with the specificity and factual support required by Estate Construction Co. v. Miller & Smith, 14 F.3d 213, 220-21 (4th Cir. 1994).
[2] Moreover, "[t]he filing of an amended complaint [does] not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to amendment." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1388, at 736 (2d ed. 1990).
[3] See Fed.R.Civ.P. Form 2 note 3; Ripperger v. A.C. Allyn & Co., 113 F.2d 332, 334 (2d Cir. 1940); SEC v. Ernst & Young, 775 F. Supp. 411, 412 (D.D.C. 1991); Klepper Krop, Inc. v. Hanford, 411 F. Supp. 276, 280 (D.Neb. 1976);
[4] Section 1391(d) provides that "[a]n alien may be sued in any district."
[5] Consortium did not raise this defense in response to the original complaint because the motions to dismiss filed by other defendants were granted before Consortium's time in which to respond to the complaint had expired.
[6] The parties dispute whether Consortium's counterclaim is permissive or compulsory. Disposition of the instant motion, however, does not turn on resolution of that dispute. See, e.g., Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330 n. 1 (9th Cir. 1984) (holding that permissive counterclaim does not waive Rule 12 defense).
[7] In Chase, the D.C. Circuit held that a defendant may "state in an answer both a jurisdictional defense and a counterclaim." 750 F.2d at 132. A fortiori, Consortium should be able to advance its Rule 12 defense here, when that defense was advanced prior to the filing of the answer and counterclaim.
[8] Steinberg's answer, like Consortium's here, also contained a counterclaim.
[9] Of course, Consortium was not required to file an answer at all at the time it did so, given that its venue objection was still pending.
[10] "The fact that the foreign defendants can be sued in this district pursuant to 28 U.S.C. § 1391(d) does not mean that they can also be found in this district, thereby creating a basis for proper venue as to the domestic defendants pursuant to § 1391(b)(3). Were this not so, in a case involving foreign and domestic defendants, § 1391(d) could be used as to the foreign defendants to circumvent the requirements of § 1391(b) as to the domestic defendants. Neither the statute as a whole, nor sensible policy, permits such a result. When, as here, there are both foreign and domestic defendants, § 1391(b) must be satisfied as to the domestic defendants."
[11] No determination is made here whether the subsidiaries are in fact mere alter egos of their parents. It is worth noting, however, that to the extent Virginia law would be instructive in this regard, Virginia courts apply a rather rigorous test for deciding when to disregard a corporation's separate identity. See, e.g., Perpetual Real Estate Servs., Inc. v. Michaelson Properties, Inc., 974 F.2d 545, 548 (4th Cir.1992) (noting that Virginia Supreme Court has held that control over a corporation is insufficient to warrant piercing corporate veil, and that plaintiff must show that corporation is a "device or sham used to disguise wrongs" (internal quotation marks omitted)).
[12] Plaintiffs allege in their memorandum addressing venue that four of the American defendants are alter egos of foreign producers, but they conspicuously do not make that claim with respect to Consortium. Instead, they unsuccessfully attempt to show that Consortium actually resides in this District.
[13] That section provides:
In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State....
[14] In any event, the preceding discussion demonstrates that § 1391(b)(3) cannot provide the basis for venue, for that section, too, requires that at least one defendant be found in the forum district. And no defendant is found in the Eastern District of Virginia.
[15] Although no party has actually moved for transfer or dismissal pursuant to § 1406 (or its corollary, § 1404, which provides for transfer when venue is properly laid), defendants' and plaintiffs' memoranda cite and discuss those statutes. Transfer under § 1406 is accordingly, and properly, considered here.
[16] See, e.g., Rock Bit Int'l, Inc. v. Smith Int'l, Inc., 957 F. Supp. 843, 844 (E.D.Tex.1997) (recognizing the speedy disposition of cases in the Eastern District of Virginia); New Eng. Mach., Inc. v. Conagra Pet Prods. Co., 827 F. Supp. 732, 734 (M.D.Fla. 1993) (same).
[17] See In re Dee-K Enterprises, Inc., No. 96-02935-RKR-11 (Bankr.W.D.Va. filed Sept. 9, 1996).
[18] The other two domestic defendants are located in Rhode Island and Texas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569656/ | 304 S.W.2d 250 (1957)
Clem H. PAHL et al., Appellants,
v.
A. Lee WHITT et al., Appellees.
No. 5222.
Court of Civil Appeals of Texas, El Paso.
April 24, 1957.
*251 Sutton, Steib, & Barr, San Angelo, for appellants.
Lee & Lee, Mason, Alfred Petsch, Fredericksburg, for appellees.
HAMILTON, Chief Justice.
This suit was originally brought by plaintiffs Clem H. Pahl, Willie Maurer, and R. C. Hagee, individually, as members of the Central Texas Electric Cooperative, Inc., and as representatives of all other members of the Central Texas Electric Cooperative, Inc., as a class, against the Central Texas Electric Cooperative, Inc., its Manager and each member of the Board of Directors, including one former Director. The relief asked for in said suit is an injunction against the Central Texas Electric Cooperative, Inc., from expending any additional funds of the Cooperative for and in connection with certain civil litigation in the nature of libel suits, which litigation is between individuals other than the Cooperative, and to recover from the Directors for and in behalf of the Central Texas Electric Cooperative, Inc., all funds theretofore expended by the Central Texas Electric Cooperative, Inc., in the defense of and in connection with said libel suits. The amount involved in this case is approximately $2,000 already expended. Of course the amount of future possible expenditures is undetermined. From a judgment denying plaintiffs below any relief, the plaintiffs have appealed.
The first point made in this case by appellants, the plaintiffs below, is that the case should be reversed because the trial was had before an improperly constituted tribunal, in that the trial judge in the case was a member of the Central Texas Electric Cooperative, Inc., a party to this suit, and was interested in the legal sense in the case.
The trial judge, during a preliminary hearing of this cause, made the following statement:
"At the outset, and before any official action is taken by this court, and in order to make it known to all, I want to announce publicly, and I wish to so announce here, that I am a member of the Central Texas Electric Co-op. I tell *252 you this so you will have that before you. Under the law I do not think I am disqualified, but want the attorneys and litigants to know that I receive public service from the Co-op in Kerr County."
Following that statement, attorneys for appellants agreed to waive any disqualification, if there was such. Attorneys for appellees, the defendants below, raised no question of disqualification of the trial judge. However, appellants have raised the question here, on the ground that the disqualification of a judge cannot be waived or cured, even with the consent of all of the parties. In this they are correct. 25 T.J. 303-306. The Supreme Court said, in an early case:
"Even though the parties agree to waive any objection to disqualification of the judge, yet the judgment is a nullity, and the case stands precisely as though no judgment had been rendered." Chambers v. Hodges, 23 Tex. 104, 105.
While the trial judge is properly the one to pass on the question of his disqualification, we do not believe that the Constitution allows him very much discretion in the matter. Art. 5, Sec. 11 of the Constitution Vernon's Ann.St. provides as follows:
"No judge shall sit in any case wherein he may be interested * *."
It is our opinion that the trial judge, being a member of the Central Texas Electric Cooperative, Inc., is disqualified to sit in the trial of a case wherein it is a party, even though he is only one of 5,000 members. It is true that his interest may be very small, and we are certain that the trial judge knew, in holding himself to be qualified, that he could try the case with complete fairness and impartiality as to the parties, but that does not seem to be the test. In this case, the plaintiffs were seeking to recover for the benefit of the Cooperative the monies it had expended in defense of certain libel suits brought against the Directors of the Cooperative as individuals. Any money recovered by virtue of such allegation would belong to the Cooperative, of which the judge was a member. Art. 1528b, Sec. 25 (c), Vernon's Ann.Civ.St., which pertains to the cooperatives of the type we have involved here, provides as follows:
"(c) Revenues not required for the purposes set forth in Sub-section (b) of this Section shall be returned from time to time to the members on a pro rata basis according to the amount of business done with each during the period, either in cash, in abatement of current charges for electric energy, or otherwise, as the Board determines; but such return may be made by way of general rate reduction to members, if the Board so elects."
In other words, if a Cooperative makes money, its members may receive dividends in the form of money or lowered rates for electricity, thus such members are in very much the same situation as stockholders in a corporation.
It has long been held that a stockholder in a corporation is disqualified to sit as judge in a trial wherein the corporation is a party. 48 C.J.S. Judges § 80, p. 1051; Templeton v. Giddings, Tex., 12 S.W. 851; King v. Sapp, 66 Tex. 519, 2 S.W. 573; 25 T.J., pp. 272, 273. Also, as a rule, a judge is disqualified from sitting at the trial of an action against a mutual association of which he is a member. Sovereign Camp, Woodmen of the World v. Hale, 56 Tex. Civ. App. 447, 120 S.W. 539; New York Life Ins. Co. v. Sides, 46 Tex. Civ. App. 246, 101 S.W. 1163.
The words "may be" as used in the constitutional provision imply that if there be a doubt or a question of a judge being "interested", that that doubt or question should be resolved in favor of disqualification, rather than qualification of the judge. In the case of Cotulla State Bank v. Herron, Tex.Civ.App., 202 S.W. 797, *253 798, Chief Justice Fly of the San Antonio Court used the following language:
"It is to be regretted that a judge should try a case in which there is the least ground upon which to base a claim for his disqualification, and, if an error is ever made as to his disqualification, it should be in favor of the disqualification rather than against it. An independent, unbiased, disinterested, fearless judiciary is one of the bulwarks of American liberty, and nothing should be suffered to exist that would cast a doubt or shadow of suspicion upon its fairness and integrity."
In the case of Collingsworth County v. Myers, Tex.Civ.App., 35 S.W. 414, the court held that a county judge who had been made a party, but who was in no sense a proper or necessary party, and could not be liable on the case, or for costs, could not enter an order dismissing himself from the suit, and could not enter any order whatsoever. The Supreme Court, in Reeves v. State ex rel. Mason, 114 Tex. 296, 267 S.W. 666, especially approved of such holding. The only case we have found touching on membership in a Cooperative, as being a disqualifying factor, is by the Court of Appeals of Kentucky, in the case of Dark Tobacco Growers' Co-op Ass'n v. Wilson, 206 Ky. 550, 267 S.W. 1092, wherein it was held that the judge, who was a member of such Co-op. Ass'n, a party in the cause, properly disqualified himself.
There is one question in this case which does not arise in any of the other cases cited. It must be remembered that this case was brought by the appellants, not only for themselves as members of the Cooperative, but for every other member as a class, which included the judge himself. For this reason alone, we are compelled to hold that the trial judge was disqualified to try the case. If each of the named parties plaintiff that brought this suit has a justiciable interest in the suit, so does the Judge. Whatever benefits hoped to be obtained by the plaintiff members who brought this suit if successful, would inure to the benefit of the trial judge; as each is affected by the results of the suit, so would be the trial judge.
In view of our holding in this matter, we decline to pass on any other points raised, and reverse and remand the case.
McGILL, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584586/ | 233 P.3d 744 (2010)
STATE
v.
MORRIS.
No. 102051.
Supreme Court of Kansas.
July 9, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
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